V. Madhava Rao, J.:— These two writ petitions are taken up together for hearing as both the writ petitions are filed against an award passed by the Labour Court, Guntur, on 30 June 1975. Writ Petition No. 1961 of 1976, is filed by the management to the extent that the award set aside the dismissal of respondents 2 and 3 and imposes a lesser punishment. Writ Petition No. 2308 of 1976, is filed by the Coromandel Fertilizers Employees' Association and G.Y Ratnam and P. Bernard challenging the award to the extent that it rejected the back-wages to the writ petitioners 2 and 3.
2. We shall take up first Writ Petition No. 1961 of 1976, the brief facts of which may be noted below. On 20 August 1973, the workmen of the petitioner-company went on an illegal strike without any notice whatsoever in contravention of the provisions of the Industrial Disputes Act (hereinafter called the Act). The petitioner company is a public utility company as contemplated under the Act. On 28 September 1973, chargesheets were issued against sixteen workmen. One V. Anantha Rao was appointed to enquire into the charges. During the enquiry four persons resigned from the service of the company and settled their accounts. Therefore, the enquiry was confined to the remaining twelve workmen. Two charges were framed against the twelve workmen as set out below:
“(1) that you took part in a strike from 20 August 1973, till now which is illegal under S. 22 read with S. 24 of the Industrial Disputes Act, in combination with some other workmen; and
(2) that you, in combination with some other striking associates of yours with the common object of preventing other workmen who wanted to give up the strike and come back to duty actually prevented them from doing so on 30 and 31 August 1973, by:
(a) wrongfully restraining them;
(b) wrongfully confining them;
(c) beating them up;
(d) using threats of violence and of injury to their lives and limbs;
(e) assaulting them by show of force with a heavy folding chair;
(f) threatening to shave off their heads and to parade them;
(g) searching pockets and taking away property from the pockets; and
(h) abusing them in filthy language.”
In the enquiry it was found that all the workmen were guilty of charge (1) G.Y Ratnam, P. Bernard, V. Appala Naidu, P. Appala Reddi, V. Narasimhayya, D.S Murty and M.N Sastry were found guilty of both the charges. The management considered the report submitted by the enquiry officer and thought that dismissal was a proper punishment in respect of G.Y Ratnam, P. Bernard, V. Appala Naidu and P. Appala Reddi and issued notice to them proposing the penalty of dismissal. Representations were submitted by the above workmen against the proposed punishment. After consideration of those representations, the said four workmen were dismissed from service by an order, dated 27 June 1974. The rest of the workmen were suspended from service for varying periods. The dismissal of the four workmen was referred to the Labour Court, Guntur, for adjudication by the Government of Andhra Pradesh by its order, dated 2 January 1975. The issue referred was as follows:
“Whether the dismissal of G.Y Ratnam, senior technician, P. Bernard, attendant bagging, V. Appala Naidu, labour bagging, and P. Appala Reddi, Labour bagging, by the management of Coromandel Fertilizers, Ltd., Visakhapatnam, is justified?”
This said dispute was taken by the Labour Court in Industrial Dispute No. 9 of 1975, and disposed of by an award, dated 28 July 1975. The Labour Court upheld the dismissal of V. Appala Naidu and P. Appala Reddi. But so far as G.Y Ratnam and P. Bernard are concerned, the punishment was reduced to suspension for ten days and they were directed to be reinstated with continuity of service but without back-wages.
3. The petitioner-company in this writ petition submits that that part of the award which directed reduction of punishment is arbitrary, illegal and without jurisdiction.
4. When this writ petition was taken up for hearing, the learned counsel for respondents 2 and 3 took preliminary objection that the writ petition is not maintainable. The preliminary objection is that after the Labour Court passed the award, the petitioner filed a special leave application to appeal under Art. 136 of the Constitution of India before the Supreme Court which was dismissed on 8 April 1976. Therefore, after the dismissal of the special leave petition, it is not open to the petitioner to again file the writ petition against the very same part of the award before this Court under Art. 226 of the Constitution. Therefore, the writ petition is liable to be dismissed as not maintainable. Further the order of the Supreme Court also operates as res judicata. The learned counsel for the petitioner on the other hand submitted that even if the petition under Art. 136 of the Constitution is dismissed at the admission stage, it does not bar the filing of the writ petition under Art. 226 of the Constitution and that it does not operate as res judicata. Therefore, the point that arises for consideration on this aspect is that if the special leave petition filed under Art. 136 of the Constitution before the Supreme Court is dismissed at the admission stage, whether a writ petition could be filed under Art. 226 of the Constitution or not.
5. The learned counsel for the respondents relied on Phool Chand v. Chandra Sanker Pathak [A.I.R 1964 S.C 782], in support of the preliminary objection. In that case a writ petition was filed in the High Court of Allahabad against an order of dismissal of a revision petition by the Board of Revenue. The writ petition was dismissed but no appeal was filed against the decision of the High Court. But an appeal was filed in the Supreme Court by obtaining special leave against the board's decision itself. When the appeal came up for hearing before the Supreme Court, two preliminary objections were taken. The first objection is that the appeal was barred by res judicata. The Supreme Court found that the High Court dismissed the petition after elaborately discussing the merits of the contentions raised before it. No appeal was preferred against that judgment. Therefore, the decision of the High Court had become final and binding on the parties. Therefore, it was contended that without the correctness of the decision of the High Court which has become final challenged, the appellant was not entitled to by-pass that decision and seek to practically obtain a reversal of it by attacking the correctness of the decision of the Board of Revenue. In those circumstances, the Supreme Court held that the preliminary objection was well founded. The Supreme Court observed in Para. 4 that:
“The question before the Court was whether, when the High Court dismissed a writ petition under Art. 226 after hearing a matter on the merits on the ground that no fundamental right was proved or contravened, a subsequent petition to the Supreme Court under Art. 32 of the Constitution on the same facts and for the same reliefs filed by the same party was not permissible. This Court held that where such a petition was heard on the merits and dismissed by the High Court the decision pronounced was binding on the parties unless it was modified or reversed in appeal or by other appropriate proceedings. If thus the rule of res judicata were a bar even to a petition under Art. 32 which is a constitutionally guaranteed right, it looks to us that it would be a fortiori so as regards an appeal under Art. 136 where the right to relief is discretionary.”
This authority does not support the objection.
6. On the other hand, the learned counsel for the petitioner referred to Management Of Western India Match Company Ltd. v. Industrial Tribunal [A.I.R 1958 Mad. 398], S.L Emmatty v. C. Venkitaswami [A.I.R 1959 Ker. 291], Board of Trustees v. Workmen, Cochin Port Trust [1973—I L.L.J 199] and Haridas Malakar v. Jay Engineering Works [1975 — I L.L.N 296], and contended that these decisions support his contention wherein it is laid down that even if the petition under Art. 136 of the Constitution is dismissed in limine it is still open to the petitioner to file a writ petition under Art. 226 of the Constitution. Now we will take up the above citations one after another.
7. In Management Of Western India Match Company Ltd. v. Industrial Tribunal [A.I.R 1958 Mad. 398] (vide supra), a Division Bench of Madras High Court held as follows:
“The scope of the proceedings under Art. 226 of the Constitution is very much more limited compared to what the Supreme Court could order in an appeal under Art. 136 of the Constitution and the appeal is dismissed. The grant of leave under Art. 136 of the Constitution is however, essentially discretionary. So is the issue of a writ of certiorari under Art. 226 of the Constitution. That discretion, however, has to be exercised on well recognized lines.”
It was further held:
“The right to apply for leave to appeal to the Supreme Court under Art. 136 of the Constitution if it could be called a right at all cannot be equated to a right to appeal. Obviously a High Court cannot refuse to entertain application under Art. 226 of the Constitution on the ground that the aggrieved party could move the Supreme Court under Art. 136 of the Constitution. That the Supreme Court declined to exercise its discretion in favour of the petitioner by granting the leave asked for cannot, in our opinion, affect the jurisdiction vested in the High Court under Art. 226 of the Constitution.
Even had there been a right of appeal to any other forum whether it was availed of or not, the jurisdiction under Art. 226 of the Constitution would be left untouched. It has been consistently held that the existence of an alternative remedy is no bar to the assumption of jurisdiction under Art. 226 of the Constitution, though it would be a very relevant factor in deciding whether the discretion to grant the relief would be exercised in a given case.
That was restated by the Supreme Court in Uttar Pradesh State v. Muhamad Nooh [A.I.R 1958 S.C 86]. As the learned Advocate-General, however, pointed out Art. 136 of Constitution does not really provide a remedy as such as an alternative to what could be granted under Art. 226 of the Constitution.
We have no hesitation in rejecting the extreme contention of the learned counsel for the respondents, that once the aggrieved party had had recourse to Art. 136 of the Constitution though it failed, this Court could have no jurisdiction to grant a rule nisi under Art. 226 of the Constitution. Whether in the exercise of its discretion the Court should discharge the rule issued in the present case, is, however a wholly different question.”
Thus the Madras High Court rejected the application. In S.L Emmatty v. C. Venkitaswami [A.I.R 1959 Ker. 291] (vide supra), a learned single Judge also expressed the same view and relied upon Management Of Western India Match Company Ltd. v. Industrial Tribunal [A.I.R 1958 Mad. 398] (vide supra). Subsequently in Board of Trustees v. Workmen, Cochin Port Trust [1973—I L.L.J 199] (vide supra), the Court summed up its conclusion in Para. 10 thus:
“Before coming to this Court, the petitioner had moved the Supreme Court for special leave to appeal from the award under Art. 136 of the Constitution. Its application for the purpose was dismissed by the Supreme Court by an order, dated 18 March 1970. That order, it is conceded, gave no reasons for the dismissal. It is true that in appeal the entire case is before the appellate Court and that, therefore, the scope for interference is much wider than in a proceeding under Art. 226 of the Constitution. But then, the grant of special leave under Art. 226 is in practice hedged in by very stringent condition, such leave is granted very sparingly and the Supreme Court has repeatedly said that it will be granted only in exceptional cases: See, for example, Pritam Singh v. State [A.I.R 1950 S.C 169]. It is not in every case where interference under Art. 226 of the Constitution would be justified that leave to appeal under Art. 136 is granted indeed that writ petition would lie might, be a consideration for declining leave. That being so, we do not think that the refusal of special leave in this case stands in the way of the petitioner either as a precedent or on principles of res judicata.”
The same view was taken by the Calcutta High Court also. In Haridas Malakar v. Jay Engineering Works [1975 — I L.L.N 296] (vide supra), the Calcutta High Court held that the fact that the Supreme Court declined to exercise its discretion in favour of the petitioner by granting leave asked for, cannot affect the jurisdiction vested in the High Court under Art. 226 of the Constitution.
8. In this case it is not disputed that the special leave application filed was dismissed at the admission stage. Thereafter the present writ petition was filed in this Court. There was no adjudication by the Supreme Court on merits of the case as the dismissal was only at the admission stage. Therefore, this Court is competent to entertain the petition filed under Art. 226 of the Constitution. The preliminary objection taken by the learned counsel for the respondents is, therefore, overruled.
9. Now we will proceed to discuss the arguments addressed by the learned counsel for the petitioner on merits. The learned counsel for the petitioner mainly contended that the approach of the Labour Court in appreciating the evidence was not proper. That the Labour Court erred particularly in taking two aspects into consideration in interfering with the order passed by the management. They are:
(1) the management could go into the overt acts as alleged in the complaint, apart from the evidence given by the complainant before the enquiry officer; and
(2) the management was entitled to see the past record of the workmen for purposes of imposition of punishment.
The learned counsel for the petitioner further contended that even if the Labour Court was of the view, that the punishment should be reduced, it was not necessary for the Labour Court to find that there was victimization or unfair labour practice on the part of the management.
10. On the other hand, the learned counsel for the respondents contended that the submissions made on behalf of the petitioner mainly relate to appreciation of evidence. The Labour Court is empowered to go into records and satisfy itself and find out whether the punishment awarded is adequate or not. If it finds that the punishment imposed is severe or the punishment is the result of unfair labour practice or victimization or is disproportionate to the charges proved, it could interfere and reduce the punishment. He further submitted that when the Labour Court extensively dealt with the evidence on record and came to a conclusion that the dismissal was not warranted in the circumstances of the case it is not for the High Court to interfere in exercise of its jurisdiction under Art. 226 of the Constitution. That apart, even if the appreciation of evidence is erroneous, that cannot be a ground for interference by the High Court with the award passed by the Labour Court. Now, we will examine the respective contentions of the learned counsel.
11. The learned counsel for the petitioner pointed out the acts committed by G.Y Ratnam in Para. 44 of the judgment. The Labour Court discussed the evidence of the complainant in respect of the acts attributed to G.Y Ratnam. It was found that both the important material witnesses did not speak about the alleged acts. That is why the enquiry officer came to the conclusion that G.Y Ratnam was one among the people present on 30 and 31 August 1973, and he did not find him guilty of any other overt acts such as abuse or assault, etc. The Labour Court observed in Para. 46 as follows:
“The management having failed to see their way to inflict a severe punishment on the material available on record, have pressed into service the alleged past bad conduct of this workman. There again the management erred in properly weighing and appreciating the previous conduct. According to the general manager, this workman had gone on strike on previous occasion in the year 1972. He was then chargesheeted for participation in an illegal strike but the workman took shelter under the Andhra Bandh agitation. Even though, according to the management, they found him guilty of participation in an illegal strike they could not punish him because of that massive agitation for separate Andhra. The management helplessly dropped all further action in the matter … Having dropped the action and condoned the misconduct if any the management cannot now reopen the same, rely upon for the purpose of imposing a grave punishment. The basic error the management committed in this regard is they have never put his previous record of bad behaviour to the workman in the notice proposing the punishment of dismissal. If they want to make use of the previous bad conduct it is their duty to put it to the workman specifically so as to afford him an opportunity to meet the same.”
We have asked for the evidence of G.Y Ratnam in the domestic enquiry to be placed before us. The same has been placed before us and we have perused the same. We find there was no record placed before the Labour Court showing whether there was punishment or not even though there was chargesheet and enquiry. Therefore, simply filing chargesheet against him and conducting enquiry was not sufficient to impose punishment without giving cogent reasons. Therefore, the Labour Court was of the view that such facts could not be taken into consideration for inflicting a severe punishment.
12. The other point which is strenuously urged is that the complaint filed by the two persons could be looked into, even though those facts were not spoken to in evidence. When the complainants were present and examined, if really they were affected by the overt acts of the alleged persons, they could have spoken to the overt acts. But they had not spoken to any of the overt acts alleged in the complaint. Therefore, the Labour Court was justified in holding that when the complainants have not made any statements with regard to the overt acts, it was not proper to merely take the uncorroborated statements in the written complaint and rely upon them. The learned counsel for the petitioner next submitted that the management might have taken an erroneous view of law in relying upon the previous record of the worker and in taking the allegations contained in the complaint but that is not by itself sufficient to hold that the management wanted to victimize the worker. But the facts of this case are very clear and the report of the enquiry officer and also of the Labour Court show that the participation of the respondents in the strike was similar to that of other workers on whom lesser punishment was awarded. Therefore, we see no reason to interfere with the finding arrived at by the lower Court.
13. With regard to the worker, Bernard, the allegation against him is that he pronounced that the heads of the loyal workmen would be shaved clean and they would be taken in procession. The workmen is only a bagging attendant. In that class of employees such kind of abuse should not be taken seriously. He never meant to translate that threat into action. Therefore, the Labour Court felt that it does not call for such an extreme penalty of dismissal.
14. The learned counsel for the petitioner referred to some model standing orders. According to him standing order 14 permits the management to take into consideration the previous record. But in the instant case there is no previous record to show whether the petitioner was inflicted punishment or not. Some proceedings appear to have been taken previously but they appear to have been dropped subsequently. The reason for such dropping of the proceedings was not placed either before the enquiry officer or the Labour Court or any notice was given to respondent 2 regarding the same. Therefore, there is nothing for the management on record to look into the previous record of the respondent.
15. We are in agreement with the conclusions arrived at by the Labour Court. Therefore, the Labour Court was justified in revising the punishment, for which it has jurisdiction to do so. Therefore, we see no reason to interfere with the reduction of punishment made by the Labour Court.
16. The learned counsel for the petitioner-employees' association did not press Writ Petition No. 2308 of 1976.
17. In the result, both the writ petitions are dismissed and the parties are directed to bear their own costs.