Mahindra
and Mahindra Ltd. Vs. N.B. Narawade [2005] Insc 120 (22 February 2005)
N. Santosh
Hegde,Tarun Chatterjee & P.K.Balasubramanyan
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 Management that the respondent 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 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.
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 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
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. 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 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. 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 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 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 A is very wide and unlimited is
wholly erroneous.
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. 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, 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 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 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.." 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 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.
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