Breco Mazdoor Sangh Vs. Management of M/S. Usha Breco Ltd. & ANR  INSC749
(29 April 2008)
S.B. Sinha & V.S. Sirpurkar
REPORTABLE CIVIL APPEAL NOs.3051-3052 OF 2008 [Arising out of SLP (Civil)
Nos. 17429-17430 of 2004] S.B. SINHA, J :
1. Leave granted.
2. Application of Section 11-A of the Industrial Disputes Act, 1947 (for
short "the Act"), as noticed by this Court in Firestone Tyre and
v. The Management and Others [(1973) 1 SCC 813], in the facts and
circumstances of the present case, is in question in these appeals which arise
out of a judgment and order dated 16.02.2004 passed by a Division Bench of the
High Court of Jharkhand at Ranchi in Letters Patent Appeal No. 348 of 2000 and
Letters Patent Appeal No. 9 of 2001.
3. Krishna Kishore Yadav, Intervenor and one R.P. Singh were employees of
the respondent. They were said to be Union leaders. On or about 17.02.1984, the
respondent received a complaint from one G. Natarajan with regard to acts of misconduct committed by the said workmen in
the factory premises contending that while he was having discussions with one
Shekhar Rao, representative of the contractor known as M/s. Techno Fab, the
said workmen came and asked him as to whether there existed any arrangement for
grant of first aid or not, whereto he replied that such a provision has to be
made by the Company and not by the Contractor.
Discussion therein ensued. The workmen were informed by Natarajan that the
matter should be discussed with the Personnel Manager of the Company. One Shri Dara Singh, another contractor being M/s. S.D. Construction also
reached there. The same question was asked to Mr. Dara Singh to which also he
replied that the grant of making provision of first aid was the duty of the
Management and not that of the Contractor.
The workmen started misbehaving with the said persons using indecent and
unparliamentary languages. They were abused in a harsh tone whereto an
objection was raised by Shri Dara Singh whereupon he was abused in filthy
languages and threatened him with dire consequences. He was also assaulted by
iron rod by the intervenor herein. Thereafter Shri Dara Singh also picked up an
iron rod. R.P. Singh also picked up another iron rod in his hand. With the
intervention of the officers and some workers, they were separated. The said
workmen thereafter instigated the workers to stop the work.
4. On the aforementioned allegations, a First Information Report was lodged.
A disciplinary proceeding was also initiated. The delinquent workmen were
placed under suspension. In the departmental proceedings, they were found
guilty. An industrial dispute was raised whereupon the appropriate government
referred the dispute for adjudication by a Labour Court, Jamshedpur. Before the
Labour Court, a plea was raised by the workmen that they as Secretary and
Vice-President of the workers of the Company had gone to Shri Natarajan and
others for ventilating their grievances, but the management with a view to
victimize them and by way of resorting to unfair labour practices had placed
them under suspension.
5. Several issues were framed having regard to the pleadings of the parties
by the learned Labour Court. The question as to whether the domestic enquiry has been conducted in
accordance with the principles of natural justice or otherwise legal was taken
up as a preliminary issue. The Enquiry Officer was examined before the Labour
Court. The Presiding Officer, Labour Court by an order dated 16.08.1990 opined:
"6. Perused the inquiry report. In the inquiry report, the Enquiry
Officer has mentioned the evidence of all witnesses on the basis of which
decision was taken in respect of the charges. The oral and the documentary
evidence has been mentioned and the decision is based on them. The show cause
of the workmen has also been considered. Therefore, enquiry report cannot be
said to be perverse.
7. Therefore, it is held that the domestic enquiry has been made following
the principles of natural justice and is legal and the second question is
answered against the workmen and in favour of the Management."
6. However, by reason of a final award dated 17.02.1992, the Presiding
Officer, Labour Court, while determining the issue as to whether the management
had been able to prove the charges levelled against the workmen, upon
considering the report of the Enquiry Officer, held:
"13. On the basis of evidences on record adduced on behalf of both the
parties and discussions made above the picture comes out on the surface that in
course of demanding First Aid for the workmen by these two dismissed workmen
from the management and contractors caused heated discussions between the
contractors and these workmen who are office bearers of the union and the
management has taken side on favour of the contractors and against these two
workmen such probably because of their demand and trade union activities (vide
ext W/2 series and statements of W.W/1 and W.W/2 and ext. M/4 and M/7) and has
made a mole to mountain. It has also established that the management has failed
to establish any of the charges against any of the workmen successfully. Hence,
issue no. (1) is answered accordingly."
7. On the aforementioned premise, the Labour Court held that no charge had
been proved against the workmen and as such they were entitled to be reinstated
in service. So far as the workman Krishna Kishore Yadav is concerned, similar
finding was arrived at by the Labour Court opining:
"From the perusal of the evidences in the statement of W.W/1 and W.W/2
it appears that the Workmen K.K. Yadav received the c/sheet dated 18.2.84 on
the same day and submitted his explanation within the time limit therein.
Hence, on the basis of the evidences and the statement, noted above and the
statements of the management witnesses and the statement as W.W/1 and W.W/2.
I find that there was scuffle between the contractor and this workman and
both shouted against each other which was merely psychological and natural in
such a situation and nothing untoward happened nor any injury was caused to
anybody. The record reflects that the workman K.K. Yadav has taken the c/sheet
and submitted the explanation responding it and there was power cut on the day
of occurrence for some time as well which caused the stopping of the
8. A writ petition was filed by the appellant questioning the legality and
validity of the said Award. A learned Single Judge of the High Court by a
judgment and order dated 31.07.2000 refused to interfere with the findings of
fact arrived at by the learned Labour Court. However, the learned Single Judge
reduced the amount of back wages to 50%.
9. The matter was taken to the Division Bench of the High Court by way of
Letters Patent Appeals preferred by both the appellant and the respondent.
The said appeal was allowed as regards the question posed by the Labour
Court as to whether the management had been able to prove the charges levelled
against the workmen on the basis of the evidences brought on records. Having
regard to the fact that no evidence was laid by the parties before the Labour
Court, it was observed:
"Obviously, it was because of its own conclusion that the Domestic
Enquiry was valid and proper. So, no occasion arose for the Labour Court to ask
itself the question whether on the evidence, the charges have been proved. In
fact, as we have earlier noted, the very finding on 16.8.1990 was to the effect
that the findings of the Domestic Enquiry was supported by the evidence taken
at that Enquiry. Thus, in our view, the Labour Court had asked itself a wrong
question when it posed the first question for decision. Thereafter it has
proceeded to record a finding that the Management has not proved the charged
levelled against the workmen. When a Tribunal has asked itself a wrong question
and even if it has answered that question correctly, it acts outside its
jurisdiction attracting the certiorari jurisdiction of this Court (see
Anisiminic). Here, the Labour Court has committed such an error of
10. Before us, Krishna Kishore Yadav got himself impleaded as a party and
the learned counsel appearing on behalf of the original appellant was permitted
11. Mr. Ambhoj Kumar Sinha, learned counsel appearing on behalf of the
impleaded party, would submit that the Division Bench of the High Court
committed a manifest error in passing the impugned judgment insofar as it
failed to take into consideration that the jurisdiction of the Labour Court
under Section 11-A of the Act being a wide one, the same can be exercised not
only for the purpose of determination of a preliminary issue with regard to the
validity or otherwise of holding of the Domestic Enquiry, the Labour Court is
entitled to reappreciate the evidence and alter the quantum of punishment.
Strong reliance in this behalf has been placed on Delhi Cloth & General Mills Co. v. Ludh Budh Singh [(1972) 1 SCC 595] and Firestone Tyre
and Rubber Co. (supra).
12. Mr. Ajit Kumar Sinha, learned counsel appearing on behalf of the
respondent, on the other hand, would submit that although the jurisdiction of
the Labour Court under Section 11-A of the Act is wide, in a case of this
nature where the preliminary issue was answered in favour of the Management, it
could not have been gone into the merit of the decision of the disciplinary
authority relying on or on the basis of the enquiry report to arrive at a
different finding on the merit of the matter to hold :
that the charges of misconduct against the impleaded applicant has not
the quantum of punishment imposed upon the impleaded applicant was
Reliance in this behalf has been placed on Tata Engineering and Locomotive
Co. Ltd. v. N.K. Singh [(2006) 12 SCC 554] and Delhi Transport Corporation v.
Sardar Singh [(2004) 7 SCC 574].
13. An order of punishment meted out to a workman indisputably can be a
subject matter of reference by the appropriate government in terms of Section
10 of the Act.
14. Validity or legality of a Domestic Enquiry as also the question as to
whether the principles of natural justice had been complied or not could be
determined by way of a preliminary issue. What would be the extent of
jurisdiction of the Labour Court in this behalf, had come up for consideration
before this Court in a large number of decisions. The view taken by this Court
was that if the conclusion arrived at by the enquiry officer on the materials
placed before it was a possible view, the Labour Court would have no
jurisdiction to substitute its own judgment although it could itself have
arrived at a different conclusion on the same materials.
[See Martin Burn Ltd. v. R.N. Banerjee (1958) SCR 514 and State Bank of
India v. R.K. Jain and Others, (1972) 4 SCC 304]
15. In Delhi Cloth & General Mills Co. (supra), this Court inter alia
relied upon the aforementioned decisions amongst others to opine that the
propriety of a domestic enquiry held by the Management should be gone into as a
preliminary issue and in the event the same is decided against it, a request
could be made to the tribunal to permit it to adduce fresh evidence before it.
[See also Bharat Heavy Electricals Ltd. v. M. Chandrasekhar Reddy and Others
(2005) 2 SCC 481]
16. Keeping in view the diverse opinion rendered by different High Courts
which had been noticed by this Court in Delhi Cloth & General Mills Co.
(supra), the Parliament inserted Section 11-A in the Act by Act No. 45 of 1971
which came into force with effect from 15.12.1971.
17. In the statement of objects and reasons for inserting Section 11-A of
the Act, it was stated:
"In Indian Iron and Steel Company Limited v.
Workmen (AIR 1958 SC 130 at 138), the Supreme Court, while considering the
Tribunal's power to interfere with the management's decision to dismiss,
discharge or terminate the services of a workman, has observed that in case of
dismissal on misconduct, the Tribunal does not act as a Court of appeal and
substitute its own judgment for that of the management and that the Tribunal
will interfere only when there is want of good faith, victimisation, unfair
labour practice, etc., on the part of the management.
The International Labour Organisation, in its recommendation (No. 119) concerning
termination of employment at the initiative to the employer, adopted in June
1963, has recommended that a worker aggrieved by the termination of his
employment should be entitled to appeal against the termination among others,
to a neutral body such as an arbitrator, a court, an arbitration committee or a
similar body and that the neutral body concerned should be empowered to examine
the reasons given in the termination of employment and that other circumstances
relating to the case and to render a decision on the justification of the
termination. The International Labour Organization has further recommended that
the neutral body should be empowered (if it finds that the termination of
employment was unjustified) to order that the worker concerned, unless
reinstated with unpaid wages, should be paid adequate compensation or afforded
some other relief.
In accordance with these recommendations, it is considered that the
Tribunal's power in an adjudication proceeding relating to discharge or
dismissal of a workman should not be limited and that the Tribunal should have
the power in cases wherever necessary to set aside the order of discharge or
dismissal and direct reinstatement of the workman on such terms and conditions,
if any, as it thinks fit or give such other reliefs to the workman including
the award of any letter punishment in lieu of discharge or dismissal as the
circumstances of the case may require. For this purpose, a new Section 11-A is
proposed to be inserted in the Industrial
Disputes Act, 1947."
18. We may, however, notice that new Section 11-A was not noticed by this
Court in Delhi Cloth & General Mills Co. (supra) although the same was
inserted on 15.12.1971.
19. Interpretation of Section 11-A of the Act came up for consideration
before this Court in Firestone Tyre and Rubber Co. (supra). It was opined that
Section 11-A of the Act had brought about a complete change in this behalf.
This Court, despite insertion of Section 11-A, not only conferred jurisdiction
on the Tribunal to alter the quantum of punishment imposed upon a workman, but
also held that it can enter into the merit of the matter so far as
determination of the proof of misconduct or otherwise on the part of the
workman is concerned.
Two extreme views, viz., that the entire law has been re-written and despite
insertion of Section 11-A, the Management neither could raise the legality or
validity of the Domestic Enquiry as a preliminary issue or request the Tribunal
to allow it to adduce evidence before it even if no enquiry has been held or as
to whether such a right can still be exercised by the management came up for
consideration in Firestone Tyre and Rubber Co. (supra).
One of the questions posed by Vaidialingam, J. was as to whether Section
11-A has made any changes in the legal position as regards the principles which
had emerged from various decisions and as noticed in Delhi Cloth & General
Mills Co. (supra). Rejecting both the extreme contentions and starting on the
premise that the Act is a beneficial piece of legislation enacted in the
interest of the employees, it was held that although the legal right of the
Management to raise such a preliminary issue and in the event the same was
determined in favour of the workmen to lead evidence for the first time before
the Tribunal/Labour Court could not be denied, opining:
"The Tribunal is now at liberty to consider not only whether the finding
of misconduct recorded by an employer is correct; but also to differ from the
said finding if a proper case is made out. What was once largely in the realm
of the satisfaction of the employer, has ceased to be so; and now it is the
satisfaction of the Tribunal that finally decides the matter."
It was furthermore held:
"40. Therefore, it will be seen that both in respect of cases where a
domestic enquiry has been held as also in cases where the Tribunal considers
the matter on the evidence adduced before it for the first time, the
satisfaction under Section 11-A, about the guilt or otherwise of the workman
concerned, is that of the Tribunal. It has to consider the evidence and come to
a conclusion one way or other. Even in cases where an enquiry has been held by
an employer and a finding of misconduct arrived at, the Tribunal can now differ
from that finding in a proper case and hold that no misconduct is proved."
[See also United Bank of India v. Tamil Nadu Banks Deposit Collectors Union
and Anr. 2007 (13) SCALE 681] 20. The legal principle, in our opinion, is
neither in doubt nor in dispute.
The question is that of its application.
We at the outset must, with respect, observe that the jurisdictional issue
determined by the Labour Court was not premised on a wrong question. It was one
thing to say that an administrative body or a quasi- judicial authority
misdirected itself in determining the issue by posing unto itself a wrong
question which would obviously lead to a wrong answer, but, it would be another
thing to say that although the administrative authority or the quasi-judicial
body did not lack inherent jurisdiction but committed a jurisdictional error in
exercising its jurisdiction. Anisminic v. Foreign Compensation Commission
 2 AC 147 : (1969) 1 All ER 208, to which reference has been made by the
Division Bench says so. The High Court, therefore, in our opinion, was not
correct in its view having regard to the binding precedent operating in this
behalf in Firestone Tyre and Rubber Co. (supra) that the first question posed
by the Labour Court amounted to a misdirection in law. The proper issue which
should have been posed was as to whether a case for interference had been made
21. The Management filed an application for determination of the preliminary
issue in regard to the legality or validity of the domestic enquiry.
The entire records of the enquiry proceedings were produced before the
Labour Court. The workmen concerned had raised all possible objections therein.
They examined themselves. The Labour Court in its order dated 16.08.1990,
however, determined the issue in favour of the Management and against the
workmen. It not only held that the principles of natural justice have been
complied with, it opined that the enquiry report was not perverse.
22. We may, however, notice that the Presiding Officer of the Labour Court
in the said order itself stated that the evidence would be reappreciated on
merit at the time of hearing. The parties, despite the said observations, did
not adduce any fresh evidence. The merit of the decision of the Enquiry Officer
vis-`-vis the Disciplinary Authority was judged on the basis of the materials
brought on records in the domestic enquiry.
23. The question, therefore, although was posed correctly by the Labour
Court but what was also necessary to be considered for arriving at a decision
thereupon was as to whether it was a proper case where the Labour Court should
exercise its discretionary jurisdiction under Section 11-A of the Act or not.
Whereas the Management cannot resort to victimization and unfair labour
practice so as to get rid of the Union leaders, they in turn are bound to
It may not be a correct approach for a superior court to proceed on the
premise that an Act is a beneficient legislation in favour of the Management or
the workmen. The provisions of the statute must be construed having regard to
the tenor of the terms used by the Parliament. The court must construe the
statutory provision with a view to uphold the object and purport of the
Parliament. It is only in a case where there exists a grey area and the court
feels difficulty in interpreting or in construing and applying the statute, the
doctrine of beneficient construction can be taken recourse to. Even in cases
where such a principle is resorted to, the same would not mean that the statute
should be interpreted in a manner which would take it beyond the object and
24. An enquiry against a workman is held in terms of Standing Orders
certified under the Industrial
Employment (Standing Orders) Act, 1946 or in absence thereof in terms of
the Model Standing Order.
25. The Management is not only required to scrupulously follow the
procedures laid down therein but was otherwise bound to comply with the
principles of natural justice. If a misconduct has been committed within the
purview of the provisions of the Standing Order, whether certified or Model,
the workmen should be punished. The gravity of the offence, the impact the same
would have on the other workmen as also the fact as to whether the same will
have an adverse effect over the functioning of the industry are relevant
Firestone Tyre and Rubber Co. (supra) must be understood in the context in
which it was rendered. Section 11-A of the Act as interpreted by Firestone Tyre
and Rubber Co. (supra) must be applied at different stages.
Firstly, when the validity or legality of the domestic enquiries is in
secondly, in the event, the issue is determined in favour of the Management,
no fresh evidence is required to be adduced by it whereas in the event it is
determined in favour of the workmen, subject to the request which may be made
by the Management in an appropriate stage, it will be permitted to adduce fresh
evidence before the Labour Court.
26. Indisputably, in the event, fresh evidence is adduced before the Labour
Court by the Management, the Labour Court will have the jurisdiction to
appreciate the evidence. But, in a case where the materials brought on record
by the Enquiry Officer fall for re-appreciation by the Labour Court, it should
be slow to interfere therewith. It must come to a conclusion that the case was
a "proper" one therefor. The Labour Court shall not interfere with
the findings of the Enquiry Officer only because it is lawful to do so. It
would not take recourse thereto only because another view is possible. Even
assuming that, for all intent and purport, the Labour Court acts as an
appellate authority over the judgment of the Enquiry Officer, it would exercise
appropriate restraint. It must bear in mind that the Enquiry Officer also acts
as a quasi-judicial body. Before it, parties are not only entitled to examine
their respective witnesses, they can cross-examine the witnesses examined on
behalf of the other side. They are free to adduce documentary evidence. The
parties as also the Enquiry Officer can also summon witnesses to determine the
truth. The Enquiry Officer can call for even other records. It must
indisputably comply with the basic principles of natural justice.
27. While determining the issue as to whether the workman is guilty of
misconduct alleged to have been committed by him or not, the workman would be
entitled to raise all contentions including the contention of lack of bona fide
or unfair labour practice as also acts of victimization on the part of the
Management. Even evidences in that behalf can be laid. Save and except,
however, for sufficient and cogent reasons, neither the Enquiry Officer would
arrive at a finding in regard to lack of bona fide or victimization or unfair
labour practice on the part of the management; the Labour Court while
considering the said findings would ordinarily not do so.
Such a question must be appropriately raised. Materials must be brought on
records to establish the said allegations.
28. It is one thing to say that the finding of an Enquiry Officer is
perverse or betrays the well-known doctrine of proportionality but it is
another thing to say that only because two views are possible, the Labour Court
shall interfere therewith. In other words, it is one thing to say that on the
basis of the materials on record, the Labour Court comes to a conclusion that a
verdict of guilt has been arrived at by the Enquiry Officer where the materials
suggested otherwise but it is another thing to say that such a verdict was also
a possible view.
For the aforementioned purpose, certain basic principles must be kept in
mind, viz., even the first appellate court although is entitled to interfere
with the findings of a Trial Court in terms of Section 96 of the Code of Civil
Procedure, ordinarily a finding of fact arrived at on the basis of the oral
evidence by the Trial Court should be accepted.
In Chinthamani Ammal v. Nandagopal Gounder [(2007) 4 SCC 163], this Court
"18. Furthermore, when the learned trial Judge arrived at a finding on
the basis of appreciation of oral evidence, the first appellate court could
have reversed the same only on assigning sufficient reasons therefor. Save and
except the said statement of DW 2, the learned Judge did not consider any other
materials brought on record by the parties.
19. In Madholal Sindhu v. Official Assignee of Bombay it was observed: (AIR
p. 30, para 21) "It is true that a judge of first instance can never be
treated as infalliable in determining on which side the truth lies and like
other tribunals he may go wrong on questions of fact, but on such matters if
the evidence as a whole can reasonably be regarded as justifying the conclusion
arrived at, the appeal court should not lightly interfere with the
(See also Madhusudan Das v. Narayanibai.)"
29. Before a departmental proceeding, the standard of proof is not that the
misconduct must be proved beyond all reasonable doubt but the standard of proof
is as to whether the test of pre-ponderance of probability has been met.
The approach of the Labour Court appeared to be that the standard of proof
on the Management was very high. When both the parties had adduced evidence,
the Labour Court should have borne in mind that the onus of proof loses all its
significance for all practical purpose.
30. In Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd.,
Haldia and Others [(2005) 7 SCC 764], a Three-Judge Bench of this Court opined:
"It is well settled that the burden of proving mala fide is on the
person making the allegations and the burden is "very heavy". (vide
Royappa v. State of T.N.) There is every presumption in favour of the
administration that the power has been exercised bona fide and in good faith.
It is to be remembered that the allegations of mala fide are often more easily
made than made out and the very seriousness of such allegations demands proof
of a high degree of credibility."
31. The Labour Court, on the one hand, has taken into consideration only
some portion of the depositions of the witnesses and not the other portions.
It merely stated that the workmen examined themselves as W.W/1 and W.W/2.
Even if the finding that there had been a scuffle between the contractor and
the workmen and both shouted against each other, is correct, the purported
inference that the same was mere psychological and natural in such a situation
and nothing untoward had happened is based on no evidence. No injury had been
caused to anybody. If the workman was found to be not only abusing the
contractors, even an iron rod had been taken out so as to threaten Shri Dara
Singh with a view to assault him, a clear case of misconduct had been made out.
It was a matter of utmost importance to determine as to who started the
quarrel; who started using abusive language; who started shouting;
whether the workmen were more sinned against than sinning; whether there
were materials on record to arrive at the findings on the said issue. These
should have been the questions posed by the Labour Court.
32. There might have been a power cut for some time but the Labour Court
even did not enter into the question as to whether the workmen were otherwise
instigated to stop work. Without there being any material on record, the Labour
Court has arrived at a finding that the Management had taken side in favour of
the contractors and against the workmen "probably because of their demand
and trade union activities". The finding is based on surmises. If that be
so, the Labour Court should have tried to find out as to whether the
Management's witnesses were confronted with such questions and documents in the
departmental proceedings or not. On what basis a finding was arrived at that
the act of Management proves victimization of the workmen had not been spelt
33. Assault, intimidation are penal offences. A workman indulging in
commission of a criminal offence should not be spared only because he happens
to be a Union leader. The Act does not encourage indiscipline. It will be a
matter of some concern if the opinion of the Enquiry Officer can be totally
ignored despite the fact that the Management is precluded from adducing any
fresh evidence before the Labour Court. A Union leader does not enjoy immunity
from being proceeded with in a case of misconduct.
34. The upshot of our discussion is that the decision of the Labour Court
should not be based on mere hypothesis. It cannot overturn a decision of the
Management on ipse dixit. Its jurisdiction under Section 11-A of the Act
although is a wide one, must be judiciously exercised. Judicial discretion, it
is trite, cannot be exercised either whimsically or capriciously. It may
scrutinize and analyse the evidence but what is important is how it does so.
35. It is also of some significance that the co-delinquent workman R.P.
Singh who came to the aid of the impleaded applicant Krishna Kishore Yadav
has accepted the finding of the High Court.
36. Before us, Mr. Ajit Kumar Sinha, has relied upon a decision of this
Court in Sardar Singh (supra). We do not find that any legal principle has been
laid down therein. It was a case of habitual unauthorized absence which was
found to have been proved.
37. Reliance has also been placed on Tata Engineering and Locomotive Co.
Ltd. (supra) where the question was as to whether on the basis of a relief
granted to one of the workmen a direction for reinstatement with half of the
back wages could be issued. In the fact of the said case, it was held:
"10. We find that the Labour Court has found the inquiry to be fair and
proper. The conduct highlighted by the management and established in inquiry
was certainly of a very grave nature. The Labour Court and the High Court have
not found that misconduct was of any minor nature. On the contrary, the finding
on facts that the acts complained of were established has not been disturbed.
That being so, the leniency shown by the Labour Court is clearly unwarranted
and would in fact encourage indiscipline. Without indicating any reason as to
why it was felt that the punishment was disproportionate, the Labour Court
should not have passed the order in the manner done. The case of R.P. Singh was
not on a similar footing. He was one of the persons instigating whereas the
respondent was the person who committed the acts. Therefore, the orders of the
Labour Court as affirmed by the High Court cannot be sustained and are set
aside. The order of dismissal from service in the disciplinary proceedings
38. The said decision again was rendered on its facts and no legal principle
can be culled out therefrom.
39. We may, however, notice that this Court in North-Eastern Karnataka RTC
v. Ashappa [(2006) 5 SCC 137] opined:
"8. Remaining absent for a long time, in our opinion, cannot be said to
be a minor misconduct.
The appellant runs a fleet of buses. It is a statutory organisation. It has
to provide public utility services. For running the buses, the service of the
conductor is imperative. No employer running a fleet of buses can allow an
employee to remain absent for a long time. The respondent had been given
opportunities to resume his duties. Despite such notices, he remained absent.
He was found not only to have remained absent for a period of more than three
years, his leave records were seen and it was found that he remained
unauthorisedly absent on several occasions. In this view of the matter, it
cannot be said that the misconduct committed by the respondent herein has to be
40. In Government of India & Anr. v. George Philip [(2006) 12 SCALE
122], overstay of leave and absence from duty was held to be not only an act of
indiscipline but also subversive of the work culture in the organization,
"Article 51A(j) of the Constitution lays down that it shall be the duty
of every citizen to strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher levels of
endeavour and achievement. This cannot be achieved unless the employees
maintain discipline and devotion to duty. Courts should not pass such orders
which instead of achieving the underlying spirit and objects of Part IV-A of
the Constitution has the tendency to negate or destroy the same."
41. We, therefore, are of the opinion no case has been made out for
interfering with the ultimate conclusion of the High Court, albeit for
42. For the reasons aforementioned, the appeals are dismissed. No costs.