Rama Kant Misra Vs. State of U.P.
& Ors [1982] INSC 77 (21 October 1982)
DESAI, D.A.
DESAI, D.A.
ERADI, V. BALAKRISHNA (J)
CITATION: 1982 AIR 1552 1983 SCR (1) 648 1982
SCC (3) 346 1982 SCALE (2)942
ACT:
Industrial Disputes Act, 1947-Section
11A-Workman charged with use of threatening and abusive language against a
senior officer unbecoming of a disciplined worker- Dismissed from
service-Punishment, whether disproportionately heavy or excessive-Tests for
determining punishment.
HEADNOTE:
In order to avoid the charge of
vindictiveness, justice, equity and fairplay demand that punishment must always
be commensurate with the gravity of the offence charged. In the development of
industrial relation norms law has moved far from the days when quantum of punishment
was considered a managerial function with the courts having no power to
substitute their own decision in place of that of the management. More often,
the courts found that, while the misconduct was proved, the punishment was
disproportionately heavy. As the situation then stood, courts remained
powerless and had to be passive sufferers incapable of curing the injustice.
Parliament stepped in and enacted s. IIA of the Industrial Disputes Act by
which the Labour Court is clothed with jurisdiction and power to substitute its
measure of punishment in place of the managerial wisdom once it is satisfied
that the order of discharge or dismissal was not justified in the facts and
circumstances of the case.
This Court, while exercising jurisdiction
under Article 136 can examine whether the Labour Court has properly approached
the matter in exercising or refusing to exercise its power under section 11A.
The words that the court must be "satisfied that the order of discharge or
dismissal was not justified" occurring in section 11A indicate that even
though misconduct is proved and a penalty has to be imposed, the extreme
penalty of dismissal or discharge was not justified in the facts and
circumstances of the case meaning thereby that the punishment was either disproportionately
heavy or excessive.
In the instant case the charge against the
appellant- workman was that he had used threatening and abusive language
against a senior officer unbecoming of a disciplined workman and had adopted a
threatening posture, subversive of discipline. An inquiry was conducted. On the
recommendations of the Inquiry officer the workman was dismissed from service.
The Labour Court upheld the order of
dismissal and the High Court dismissed the appellant's petition under Article
227.
649 On the question whether the order of
dismissal was justified on the facts and in the circumstances of the case.
HELD: The order of dismissal was not
justified. [653 A] It is a well recognized principle of jurisprudence, which
permits penalty to be imposed for misconduct that the penalty must be
commensurate with the gravity of the offence charged. [653 C-D] The
appellant-workman had put in more than 14 years of service and had been the
Secretary of the workers' union.
The management had not shown that there was
any blameworthy conduct on his part during the period of his service. The
misconduct alleged against him consisted of use of language which was
indiscreet and improper, disclosing a threatening posture. [653 E-F] When it is
said that his language disclosed a threatening posture it was the subjective
conclusion of the person who heard the language because voice modulation of
each person in the society differs. Indiscreet, improper, abusive language may
show lack of culture. But mere use of such language on one occasion unconnected
with any subsequent positive action and not preceded by any blameworthy conduct
cannot permit an extreme penalty of dismissal from service. [653 F-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1531 of 1980.
Appeal by special leave from the judgment and
order dated the 9th August, 1978 of the Allahabad High Court in C.M. Writ
No.6788 of 1978 J.K Goel for the Appellant S.Markendeya for Respondent.
The order of the Court was delivered by DESAI
J. Appellant Ramakant Misra joined service in the Kanpur Electric Supply
Administration ('Administration' for short) which was then a Department of the
Government of Uttar Pradesh. On the constitution of U.P. Electricity Board
('Board' for short), under the provisions of Electricity (Supply) Act, 1948
('Act' for short), with effect from April 1,1958, the Kanpur Electric Supply
Administration stood transferred to the Board and the employees working in the
Administration were deemed to be on deputation to 650 the Board though they
would continue to be Government servants as provided in a Circular dated March
13, 1959. As per Notification No. 3721E/74-23P (3)-155E/174 dated August 3,
1974 the posts held formerly in the Administration by the employees working in
the Administration were abolished and the deputationists were absorbed in the
service of the Board. However, before the appellant could be so absorbed he was
served with a charge sheet on November 19, 1971, alleging that he was guilty of
disorderly behaviour punishable under the relevant Standing orders.
Simultaneously the appellant was suspended
from service pending a departmental inquiry. The inquiry officer who was
appointed to hold the inquiry after holding the inquiry recorded his finding
that the charge was proved. It would be advantageous to reproduce the charge.
It is extracted from the report of the inquiry officer:
"Shri Rama Kant was charged for
misconduct under clause 20 (9) . 18 and 28 of the Standing Orders for
disorderly behaviour or conduct likely to cause a breach of peace threatening
an employee within the premises and conduct prejudiced to good order and
discipline".
The specific allegation is that on November
18, 1971, around 2.50 p.m. appellant was complaining about the deduction that
was being made from his wages for his absence from the place of work and late
attendance with Shri Mahendra Singh. When Shri Mahendra Singh replied that he
had no separate rules for him, the appellant is alleged to have lost his
balance. The threatening language alleged to have been used by the appellant
when freely translated reads:
"Are other persons your father. I will
make you forget your high handedness either here or somewhere else. An officer
of yesterday's making discloses power consciousness".
The inquiry officer held that the words
attributed to the appellant were used by him in reference to Shri Mahendra
Singh and that use of such language would constitute misconduct within the
relevant clauses of the Standing Orders hereinbefore mentioned. The inquiry
officer recommended dismissal from service. As the matter was being dealt with
on the footing that the appellant was a Government servant entitled to the
protection of Article 311 of the Constitution, 651 a second show cause notice
according to the provisions then contained in Art. 311 was required to be
served before penalty was finally imposed upon him. But even before the notice
was served the appellant was dismissed from service on April 6, 1972.
A dispute having been raised questioning the
validity of termination of service of the appellant, the 1st respondent made a
reference to the Labour Court, U.P. for adjudication of the dispute. The Labour
Court by its Award dated March 21, 1978, held that the termination of service
of the appellant was legal and proper. A petition under Article 227 of the
Constitution to the High Court failed.
Hence this appeal by special leave.
Mr. Markandeya, learned counsel who appeared
for the respondent urged that any person who claims to be a Government employee
cannot seek relief both under Article 311 on the footing that he is holding a
civil post or is a member of the civil service of the State on the one hand and
a workman falling under the purview of the Industrial Disputes Act, 1947, on
the other, and that this aspect is being examined by a larger Bench. In this
case it is not necessary to resolve the controversy because we requested Mr. Markandeya
to state specifically whether according to him the appellant on the date of his
dismissal was a Government servant governed by Art. 311 or a workman within the
meaning of the Industrial Disputes Act, 1947. Mr. Markandeya specifically
stated and it was also held by the Labour Court though wrongly but which aspect
at present is not relevant that the appellant is not a Government Servant
holding a civil post or a member of the civil service of the State but that he
is a workman entitled to the protection of the Industrial Disputes Act. We are
proceeding on that assumption in this case.
The charge of which appellant is found guilty
is already extracted hereinbefore. It amounts to a riotous or disorderly
behaviour during working hours at the establishment. At least this could not be
said to be an act subversive of discipline. The misconduct attributed to the
appellant is that he used some language unbecoming of a disciplined workman and
may have thereby exposed a threatening posture which is alleged to be
subversive of discipline. Shorn of all embellishments, enraged by deduction
from his wages appellant, a Joint Secretary of Union of Workmen used some 652
language which can be said to be indiscreet. In order not to minimise the
gravity of the charge we have extracted the charge by its free translation and
it must be confessed that both the learned counsel who appeared on either side
were fully conversant with the Hindi language and, therefore, clearly
understood the import of the language used by the appellant. In the ultimate
analysis the mis conduct is use of language indiscreet or may be said to be
indecent or may be disclosing a threatening posture. We will proceed on the
assumption that use of such language is punishable under the relevant Standing
Orders. So what.
The punishment must be for misconduct. To
some extent misconduct is a civil crime which is visited with civil and
pecuniary consequences. In this case it has resulted in dismissal from service.
In order to avoid the charge of vindictiveness, justice, equity and fairplay
demand that punishment must always be commensurate with the gravity of the
offence charged. In the development of industrial relation norms we have moved
far from the days when quantum of punishment was considered a managerial
function with the courts having no power to substitute their own decision in
place of that of the management. More often the courts found that while the
misconduct is proved the punishment was disproportionately heavy. As the
situation then stood, courts remained powerless and had to be passive sufferers
incapable to curing the injustice. Parliament stepped in and enacted s. IIA of
the Industrial Disputes Act which reads as under:
"11A. Where an industrial dispute
relating to the discharge or dismissal of a workman has been referred to a
Labour Court, Tribunal or National or Tribunal for adjudication and, in the
course of the adjudication proceeding, the Labour Court Tribunal or National
Tribunal, as the case may be, is satisfied that the order of discharge or
dismissal was not justified, it may, by its award, 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 relief to the
workman including the award of any lesser punishment in lieu of discharge or
dismissal as the circumstances of the case may require".
It is now crystal clear that the Labour Court
has the jurisdiction and power to substitute its measure of punishment in 653
place of the managerial wisdom once it is satisfied that the order of discharge
or dismissal was not justified in the facts and circumstances of the case. And
this Court is at present exercising jurisdiction under Art. 136 over the
decision of the Labour Court. Therefore this Court can examine whether the
Labour Court has properly approached the matter for exercising or refusing to
exercise its power under s. 11A. Before we can exercise the discretion
conferred by s. 11A, the Court has to be satisfied that the order of discharge
or dismissal was not justified in the facts and circumstances of the case.
These words indicate that even though misconduct is proved and a penalty has to
be imposed, the extreme penalty of dismissal or discharge was not justified in
the facts and circumstances of the case meaning thereby that the punishment was
either disproportionately heavy or excessive. As stated earlier, it is a well
recognised principle of jurisprudence which permits penalty to be imposed for
misconduct that the penalty must be commensurate with the gravity of the
offence charged.
What has happened here. The appellant was
employed since 1957. The alleged misconduct consisting of use of indiscreet or
abusive or threatening language occurred on November 18, 1971, meaning thereby
that he had put in 14 years of service. Appellant was Secretary of the
workmen's Union. The respondent management has not shown that there was any
blameworthy conduct of the appellant during the period of 14 years' service he
rendered prior to the date of misconduct and the misconduct consists of language
indiscreet, improper or disclosing a threatening posture.
When it is said that language discloses a
threatening posture it is the subjective conclusion of the person who hears the
language because voice modulation of each person in the society differs and
indiscreet improper, abusive language may show lack of culture but merely the
use of such language on one occasion unconnected with any subsequent positive
action and not preceded by any blameworthy conduct cannot permit an extreme
penalty of dismissal from service.
Therefore, we are satisfied that the order of
dismissal was not justified in the facts and circumstances of the case and the
Court must interfere. Unfortunately, the Labour Court has completely
misdirected itself by looking at the dates contrary to record and has landed
itself in an unsustainable order. Therefore, we are required to interfere.
What ought to be the proper punishment in
this case? In our 654 opinion, in such a situation withholding of two
increments with future effect will be more than adequate punishment for such a
low paid employee.
Accordingly, this appeal is allowed and the
Award of the Labour Court is set aside as also the penalty imposed by the
management is quashed and set aside. The appellant is reinstated with all the
benefits, including the back wages, but his two increments falling due from the
date of his termination of service be withheld with future effect.
P.B.R. Appeal allowed.
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