Full Judgment Text
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CASE NO.:
Appeal (civil) 1508 of 2003
PETITIONER:
Mahindra And Mahindra Ltd.
RESPONDENT:
N.B. Narawade
DATE OF JUDGMENT: 22/02/2005
BENCH:
N. Santosh Hegde,Tarun Chatterjee & P.K.Balasubramanyan
JUDGMENT:
J U D G M E N T
With
CIVIL APPEAL NO. 1507 OF 2003
SANTOSH HEGDE, J.
This appeal is preferred against an order dated
23.8.2002 passed by the Division Bench of the High Court
of Judicature at Bombay dismissing an appeal filed by the
Management against an order of the learned Single
Judge who in turn had confirmed the award of the labour
court which while upholding the finding of the domestic
inquiry that the respondent workman herein had
committed the misconduct charged against him interfered
with the quantum of punishment awarded to him still
chose to alter the punishment of dismissal to one of
reinstatement with continuity of service and 2/3rd back
wages w.e.f. 5.3.1993.
The basic facts necessary for the disposal of this
appeal are as follows:
It is stated by the appellant \026 Management that the
respondent \026 workman was initially appointed by it on
temporary basis from May, 1978 and was made
permanent on 9.8.1981 and was designated as a fitter in
the Chassis Assembly Department of the appellant
industry. With reference to an incident which took place
on 7.111991 wherein it is alleged that the respondent \026
workman used abusive and filthy language against his
supervisor, an inquiry was instituted against the said
workman and the Inquiry Officer after considering the
material produced in the proceedings before him found
him guilty of misconduct and recommended his dismissal
and based on such recommendation service of the
respondent was terminated by the disciplinary authority
on 5.3.1991.
At the instance of the workman a reference was
made for adjudication of the dispute to the labour court.
The labour court by its order dated 5.9.1996 held that the
charge-sheet issued to the respondent-workman was
vague. Hence, the Management issued a fresh charge-
sheet and initiated a fresh inquiry in which both the
parties led evidence and the Inquiry Officer on
consideration of such evidence once again came to the
conclusion that the alleged misconduct was proved and
the said misconduct attracted a punishment of dismissal
under the standing orders of the Management,
accordingly proposed his dismissal which was accepted
by the disciplinary authority and the respondent-workman
was dismissed from the service.
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In the second round before the labour court, the
said court after considering the evidence that was brought
on record, specifically came to the conclusion that from
the evidence of witnesses of the company it is clear that
the respondent-workman had abused his superior on 22nd
November, 1991 in filthy language without any
provocation. It also held that the said respondent-
workman did not bring any cogent evidence on record in
his favour that he did not commit any misconduct.
However, in regard to punishment of dismissal imposed
on the respondent-workman the labour court came to the
conclusion that the same was harsh and improper hence,
deserved to be set aside and substituted the said
punishment by directing the respondent’s reinstatement
with continuity of service but with 2/3rd back wages w.e.f.
5.3.1993.
Being aggrieved by the said modification of the
punishment the appellant herein preferred a writ petition
before the learned Single Judge of the High Court of
Bombay. The learned Single Judge in the said writ
petition by a short order dismissed the same. The said
order of the learned Single Judge reads as follows:
"The labour court has exercised its
jurisdiction under Section 11A of the
I.D. Act. It has given its own reasons
and he is right in observing that
denial of 1/3 back wages for the
intervening period from 5.3.93 till
13.3.2001 would be good punishment
of the allegations proved before the
Court. It would act as deterrent and
reformative. He has learnt the cost of
the abusive words used by him. He
will not get 1/3 wages for the whole
intervening period. In my opinion
there is no illegality or infirmity in the
exercise of the jurisdiction under
Section 11-A of the Act to warrant
any interference by this Court under
Article 226 of the Constitution of
India. There is no miscarriage of
justice as the guilty workman has
received proportionate punishment.
There is no merits in the writ petition
hence it is rejected."
As could be seen from the above order of the learned
Single Judge while dismissing the writ petition the learned
Single Judge held that the misconduct alleged against the
workman has been proved still it was of the opinion, the
modification of the punishment as done by the labour
court would act as deterrent and reformative and there is
no miscarriage of justice as the guilty workman has
received proportionate punishment.
Against the said order of the learned Single Judge
the appellant preferred writ appeal before the Division
bench of the High Court. The Division Bench of the High
Court considering the various judgments cited before it
came to the conclusion that the power of the labour court
or industrial tribunal under Section 11 A or the equivalent
provisions of the said Act are not restricted and the court
is vested with the jurisdiction to alter the punishment
imposed on a workman by the management, if in its
opinion, the court is of the view that the punishment is
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disproportionate with the misconduct proved against the
workman. According to the High Court by the introduction
of Section 11A in the Industrial Disputes Act what was
once largely in the realm of the satisfaction of the
employee has ceased to be so and presently the
satisfaction lies with the labour court or the tribunal which
finally decides the matter.
While on the merit of the charges framed against
the respondent and the findings given by the courts below
in regard to the misconduct committed by the workman it
held: "it is true that the respondent-workman has been
found guilty of the misconduct of using foul, intemperate
and abusive language, but this would not in our opinion,
be sufficient to warrant the punishment of dismissal."
However, in the later part of the judgment it held: " since
the misconduct has been proved and in view of the nature
of the past service record, we are of the opinion that
depriving the workman of 60% of his back wages would
be a punishment commensurate with his past record and
the misconduct proved against him. Dismissal from
service will be too harsh considering the totality of
service, gravity of misconduct and 15 years of service put
in by him."
On the above basis the Division Bench also
dismissed the appeal of the Management. Hence,
Management is before us in this appeal.
Mr. Dushyant A. Dave, learned Senior counsel
appearing for the appellant-Management submitted that
the courts below have totally misconstrued the scope of
Section 11-A of the I.D. Act and it is because of this
misconception as to the scope of the Act, the courts
below have wrongly come to the conclusion that
irrespective of the gravity of misconduct the labour court
had a wide discretion in altering or interfering with the
punishment awarded by the disciplinary authority. On
facts he submitted that this workman had been charge
sheeted several times earlier and on every such case of
misconduct, Management took a lenient view and
imposed minor punishments. He pointed out from the
records that in one incident that took place on 6th
September, 1988 this workman had assaulted his co-
worker by name Shri G.I. Puranik with a galvanized pipe
weighing about 2 kg. causing grievous injury. Even in
such a situation, the respondent was only punished with
suspension of 4 days. According to the learned counsel
the incident of 22.11.1991 was unprovoked incident when
his supervisor asked him to do a particular job which was
entrusted to him, he allegedly told the supervisor to call
the Engineer-in-charge so that he could talk to him rather
than the supervisor and when the Engineer came and
requested him to carry on with the work he abused the
supervisor in a very filthy language in the presence of his
subordinates and later on when the Engineer went back
to his cabin he followed him to the cabin and again
abused him in the presence of a member of the Labour
Union in similar language and even threatened him which
act of the respondent-workman, according to the learned
counsel, is subversive of discipline and good behaviour
within the premises of the company and would undermine
the discipline in the industry.
The learned counsel further submitted that the
language used against the superior officer are such that,
that by itself should have been sufficient for the labour
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court to accept the punishment awarded by the
Management.
The learned counsel then pointed out that the
labour court under a misconception in regard to its
jurisdiction under Section 11-A of the Act without properly
considering the decision of this Court in the case of U.P.
State Road Transport Corpn. Vs. Subhash Chandra
Sharma & Ors. [(2000) 3 SCC 324 ] which according to
the learned counsel clearly laid down the parameters
within which the labour court or any other court could
operate while considering the question of proportionality
of punishment erroneously proceeded to pass the
impuged order. He placed special emphasis on the
following paragraph of the above judgment of this Court:
"Whether it is open to the Industrial
Tribunal or the labour court or the
High Court to interfere with the
quantum of punishment is, no
longer, res integra, as the question
as the question has been answered
by this Court several times it its
various decisions in B.C. Chaturvedi
Vs. Union of India [1995(6) SCC
749] a three-Judge Bench of this
Court held that that Section 11-A of
the Industrial Disputes Act, 1947
confers power on the Industrial
Tribunal/Labour Court to apply its
mind on the question of proportion
of punishment or penalty\005. that this
power is also available to the High
Court under Article 226 of the
Constitution, though it was qualified
with a limitation that while seized
as a writ court, interference is
permissible only when the
punishment/penalty is shockingly
disproportionate."
Relying upon the ratio laid down by this Court in the
said case B.C. Chaturvedi Vs. Union of India (supra),
the learned counsel submitted that unless courts below
come to a definite conclusion that the punishment
awarded by the Management is shockingly
disproportionate to the misconduct as proved, it is not
open to the court to substitute such punishment merely
because some power to alter the punishment is vested in
it.
On this point the learned counsel also relied on
another judgment of this Court in the case of Kailash
Nath Gupta Vs. Enquiry Officer, (R.K.Rai) Allahabd
Bank & Ors. [ (2003) 9 SCC 480], wherein this Court
went one step further than in the earlier case of U.P.
State Road Transport Corpn.(supra) and held:
"In the background of what has
been stated above, one thing is
clear that the power of interference
with the quantum of punishment, is
extremely limited." (emphasis
supplied).
From the above he contended that view taken by
the courts below in this case that the power of the labour
court under Section 11 \026A is very wide and unlimited is
wholly erroneous.
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On facts, the learned counsel pointed out from the
judgment of the labour court that it had come to a definite
conclusion that the misconduct of the respondent-
workman was committed without provocation and as a
matter of fact the workman did not even have an excuse
for the same, and hence there was no basis for the courts
below to reduce the punishment. From the judgment of
the learned Single Judge the learned counsel pointed out
that he also had agreed with the finding of the labour
court as to the gravity of the misconduct. Still without
considering the condition precedent for interfering with the
punishment by merely using words like miscarriage of
justice and proportionate punishment, dismissed the
petition.
From the judgment of the Division Bench the
learned counsel pointed out that the Bench was totally
carried away by a misconception of law that the power of
the labour court under Section 11-A is unlimited hence,
upheld the order of the labour court in reducing the
punishment. He submitted that the Division Bench fell in
error in distinguishing the various judgments cited before
it without any legal basis. For example, he pointed out
that the decision of this Court in the case of Christian
Medical College Hospital Employees Union and Anr.
Vs. Christian Medical College Vellore Association and
Ors. [ (1987) 4 SCC 691], the Division Bench observed
that the said judgment is applicable only to minority
educational institutions which according to the learned
counsel is wholly erroneous. Similarly with regard to the
decision of this Court in U.P. State Road Transport
Corpn.(supra) the learned counsel pointed out that the
Division Bench distinguished the same on facts without
even referring to the principle of law laid down in the said
case.
The learned counsel for the appellant relied on the
judgment of this Court in the case of Orissa Cement,
Ltd. Vs. V.Adikanda Sahu [1960 (1) LLJ \0260518-SC],
wherein a three Judge Bench of this Court noticing the
filthy language used by the workman therein held:
"Besides, the words used by the
respondent in abusing the labour
officer not once but twice without
any provocation are absolutely
indecent and vulgar and in such
case, he could not keep in its
employment a person who was
capable of such indecent conduct, it
would be justified in dismissing him."
Relying on the said observation the learned counsel
submitted that the same applied with full force to the issue
involved in this case and submitted that even though
there was an apology in the case of Orissa Cement Ltd.
(supra), still this Court came to the conclusion that a
punishment of dismissal was justified for using a filthy and
abusive language against a superior officer. The learned
counsel also relied another judgment of this Court in the
case of New Shorrock Mills Vs. Maheshbhai T. Rao [
1996 (6) SCC 590] wherein this Court again considering
the case of workman abusing his superior and threatening
him held :
"The labour court, in the present
case, having come to the
conclusion that the finding of the
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departmental enquiry was legal and
proper, the order of discharge was
not by way of victimisation and that
the respondent workman had
seriously misbehaved and was thus
guilty of misconduct, ought not to
have interfered with the punishment
which was awarded, in the manner
it did. This is not a case where the
court could come to the conclusion
that the punishment awarded was
shockingly disproportionate to the
employee’s conduct and his past
record\005.."
Learned counsel appearing for the respondent,
however, contended that even though all courts below in
regard to the factum of misconduct have held against the
workman/respondent still rightly came to the conclusion
that the punishment of dismissal was too harsh a
punishment and was totally disproportionate to the
misconduct proved. In support of this contention the
learned counsel pointed out from the award of the labour
court that it had taken into consideration that the
respondent-workman had worked with the appellant
company for a large of number years and held that
knowing the consequences of dismissal he would have
by now learnt a lesson not to misbehave in future, hence,
he must be given an opportunity to redeem himself. He
submitted that the Labour Court with the said view in mind
had reduced the punishment. He also relied on the
observation of the learned Single Judge that a
punishment of dismissal for the proved misconduct on the
facts of this case would lead to miscarriage of justice and
by reducing the said punishment workman has now
received a proportionate punishment. From the judgment
of the Division Bench the learned counsel pointed out that
it has held that even intemperate and abusive language
would not be sufficient to warrant the punishment of
dismissal. Relying on these observations of the courts
below the learned counsel for the respondent-workman
submitted that since the courts below have taken a lenient
view of the matter which is permissible under Section 11-
A of the Act we should not interfere with the orders of the
courts below in altering the punishment.
It is no doubt true that after introduction of Section
11-A in the Industrial Disputes Act, certain amount of
discretion is vested with the labour court/Industrial
Tribunal in interfering with the quantum of punishment
awarded by the Management where the concerned
workman is found guilty of misconduct. The said area of
discretion has been very well defined by the various
judgments of this Court referred to herein above and it is
certainly not unlimited as has been observed by the
Division Bench of the High Court. The discretion which
can be exercised under Section 11-A is available only on
the existence of certain factors like punishment being
disproportionate to the gravity of misconduct so as to
disturb the conscience of the court, or the existence of
any mitigating circumstances which requires the reduction
of the sentence, or the past conduct of the workman
which may persuade the Labour Court to reduce the
punishment. In the absence of any such factor existing,
the Labour Court can not by way of sympathy alone
exercise the power under Section 11-A of the Act and
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reduce the punishment. As noticed herein above atleast
in two of the cases cited before us, i.e. Orissa Cement
Ltd. (supra) and New Shorrock Mills (supra), this Court
held: "punishment of dismissal for using of abusive
language cannot be held to be disproportionate." In this
case all the forums below have held that the language
used by the workman was filthy. We too are of the opinion
that the language used by the workman is such that it
cannot be tolerated by any civilized society. Use of such
abusive language against a superior officer, that too not
once but twice, in the presence of his subordinates
cannot be termed to be an indiscipline calling for lesser
punishment in the absence of any extenuating factor
referred to herein above.
Learned counsel for the respondent contended that
there was sufficient provocation for the use of such words
because the workman was asked to do certain work
which was impossible to be done by any person without
causing harm to himself, but this is not the defence that
was taken in the enquiry or before the Labour Court and
is being argued for the first time before this Court. On the
contrary, the sole defence of the workman was that he did
not remember abusing the engineer concerned.
We may also note here that the learned counsel for
the appellant has pointed out from the records that the
workman was charge-sheeted more than once on earlier
occasions and inspite of the gravity of the offence he was
dealt with leniently. He pointed out that in one such earlier
instance this workman had assaulted his co-worker with a
galvanized pipe causing grievous injury, even then he
was punished with 4 days suspension only which
according to the learned counsel clearly shows that the
Management- appellant is not being vindictive.
Taking into consideration the over all fact situation
and the law laid down by this court and inspite of the fact
that three courts have concurrently come to the
conclusion that the punishment of dismissal would be
disproportionate to the misconduct, we will have to
disagree with those findings.
For the reasons stated above, this appeal
succeeds. The order of the Division Bench, Single Judge
of the High Court and that of the Labour Court to the
extent that it sets aside the order of dismissal and directs
the reinstatement, is quashed. We uphold the order of
the disciplinary authority dismissing the respondent-
workman from service.
The appeal is allowed.
CIVIL APPEAL NO. 1507 OF 2003
This is an appeal filed by the workman who is the
respondent in the above civil appeal questioning the
quantum of reduction in his back wages. In view of the
fact that we have allowed the appeal of the Management
by our judgment in Civil appeal No. 1508 of 2003 this
appeal becomes infructuous and the same is dismissed.