M/S.
L&T Komatsu Ltd Vs. N. Udayakumar [2007] Insc 1208 (3 December 2007)
Dr.
Arijit Pasayat & P. Sathasivam
CIVIL
APPEAL NO. 3852 OF 2006 Dr. ARIJIT PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the judgment rendered by a Division Bench of the
Karnataka High Court allowing the writ appeal filed by the respondent
(hereinafter referred to as the 'workman') while dismissing the writ appeal
filed by the appellant.
3.
Undisputed background facts are as follows:
Respondent
had been working as an employee with M/s. L&T Komatsu Ltd., Bangalore. He remained absent unauthorisedly
for 105 days between 1.8.2000 and 30.4.2001.
Disciplinary
proceedings were initiated against him and a regular departmental enquiry was
held. It is common case of the parties that the charge of unauthorized absence
was proved in the said enquiry which has been found to be fair and proper and
in accordance with the principles of natural justice. The enquiry report was
accepted by the management and the respondent was dismissed from service. This
dismissal gave rise to an industrial dispute and the workman filed an
application under Sub-section (4A) of Section 10 of the Industrial Disputes
Act, 1947 (as introduced in the State of Karnataka) (for short the 'Act'). On a consideration of oral and documentary
evidence led by the parties and having regard to the fact that the workman had
been remaining absent on several occasions, the Labour Court found that though
the workman was remaining absent unauthorisedly, the extreme punishment of
dismissal from service was too harsh and disproportionate to the gravity of the
charge and that lesser punishment would meet the ends of justice.
Accordingly,
the order of dismissal was set aside and the management was directed to
reinstate the workman with continuity of service but without back wages. The Labour Court awarded the punishment of stoppage
of four increments with cumulative effect. This award came to be challenged by
the management in the writ petition. On a consideration of the contentions
advanced before him the Learned Single Judge modified the award and deprived
the workman from continuity of service. In other words, management was directed
to reinstate the workman without continuity of service while maintaining the
remaining part of the award. It is against this order that both the management
and the workman filed writ appeals before the Division Bench.
4.
Learned Single Judge noted that there were proved cases of misconduct of
unauthorized absentism for 15 times but the workman had not improved his
conduct. Notwithstanding this finding, learned Single Judge held that at the
relevant point of time the workman was not well and was taking treatment at St. Martha Hospital. Accordingly it was held that the
order of termination is harsh under the facts and circumstances of the case but
looking into the past history directed reinstatement without continuity of
service and without back wages. By the impugned order the Division Bench
allowed the appeal filed by the respondent while dismissing the appeal filed by
the present appellant.
5. In
support of the appeal learned counsel for the appellant submitted that it was
not for the first time that the respondent was guilty of absentism; on the
contrary there were 15 such earlier instances without any justifiable reason.
The Labour Court directed reinstatement with
continuity of service but not back wages. Learned Single Judge, on the other
hand, instead of holding that the interference of the Labour Court with the quantum of punishment was not
justified, directed reinstatement without continuity of service and back wages.
The
Division Bench without noticing the relevant factors has directed reinstatement
without back wages but with continuity of service.
6. It
is submitted that habitual absentism is gross violation of discipline. It is
also submitted that the parameters for the exercise of Section 11A of the Act
have not been kept in view by the Labour Court and the High Court.
7. In
response, learned counsel for the respondent submitted that because of personal
problems there was unintentional absence and that should not have been
seriously viewed. The reply to the second show cause notice on which the
emphasis is laid by the appellant to contend that respondent had admitted his
guilt was taken under coercion.
It is
also submitted that the discretion for exercise of jurisdiction under Section
11A has been rightly exercised.
8. So
far as the question whether habitual absentism means the gross violation of
discipline, it is relevant to take note of what was stated by this Court in
M/s. Burn & Co. Ltd. v. Their Workmen and Ors. [AIR 1959 SC 529]
"There should have been an application for leave but Roy thought that he could claim as a matter of right
leave of absence though that might be without permission and though there might
not be any application for the same. This was gross violation of discipline.
Accordingly,
if the company had placed him under suspension that was in order. On these
findings, it seems to us that the Tribunal erred in holding that it could not
endorse the Company's decision to dispense with the services altogether. In our
opinion, when the Tribunal upheld the order of suspension it erred in directing
that Roy must be taken back in his previous post of employment on the pay last
drawn by him before the order of suspension."
9. In
Life Insurance Corporation of India v. R. Dhandapani, [AIR 2006 SC 615] it was
held as follows: .
"It
is not necessary to go into in detail regarding the power exercisable under
Section 11A of the Act. The power under said Section 11A has to be exercised
judiciously and the Industrial Tribunal or the Labour Court, as the case may
be, is expected to interfere with the decision of a management under Section
11A of the Act only when it is satisfied that punishment imposed by the
management is wholly and shockingly disproportionate to the degree of guilt of
the workman concerned. To support its conclusion the Industrial Tribunal or the
Labour Court, as the case may be, has to give
reasons in support of its decision. The power has to be exercised judiciously
and mere use of the words 'disproportionate' or 'grossly disproportionate' by
itself will not be sufficient.
9. In
recent times, there is an increasing evidence of this, perhaps well-meant but
wholly unsustainable, tendency towards a denudation of the legitimacy of
judicial reasoning and process. The reliefs granted by the Courts must be seen
to be logical and tenable within the framework of the law and should not incur
and justify the criticism that the jurisdiction of the Courts tends to
degenerate into misplaced sympathy, generosity and private benevolence. It is
essential to maintain the integrity of legal reasoning and the legitimacy of
the conclusions. They must emanate logically from the legal findings and the
judicial results must be seen to be principled and supportable on those
findings.
Expansive
judicial mood of mistaken and misplaced compassion at the expense of the
legitimacy of the process will eventually lead to mutually irreconcilable
situations and denude the judicial process of its dignity, authority,
predictability and respectability. [See: Kerala Solvent Extractions Ltd. v. A. Unnikrishnan
and Anr. [1994 (1) SCALE 631)].
Though
under Section 11A, the Tribunal has the power to reduce the quantum of
punishment it has to be done within the parameters of law.
Possession
of power is itself not sufficient; it has to be exercised in accordance with
law.
The
High Court found that the Industrial Tribunal had not indicated any reason to justify
variations of the penalty imposed. Though learned Counsel for the respondent
tried to justify the Award of the Tribunal and submitted that the Tribunal and
the learned Single Judge have considered the case in its proper perspective, we
do not find any substance in the plea. Industrial Tribunals and Labour Courts
are not forums whose task is to dole out private benevolence to workmen found
by Labour Court/Tribunal to be guilty of misconduct. The Tribunal and the High
Court, in this case, have found a pattern of defiance and proved misconduct on
not one but on several occasions. The compassion which was shown by the
Tribunal and unfortunately endorsed by learned single Judge was fully
misplaced."
10. In
Mahindra and Mahindra Ltd. v. N.B. Narawade [2005(3) SCC 134] it was noted as
follows:
"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 workman concerned is found guilty of misconduct.
The said area of discretion has been very well defined by the various judgments
of this Court referred to hereinabove 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 require 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 cannot by way of sympathy alone exercise the power under
Section 11-A of the Act and reduce the punishment. As noticed hereinabove at
least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock
Mills 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 civilised 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
hereinabove."
11.
Again in M.P. Electricity Board v. Jagdish Chandra Sharma [2005 (3) SCC 401]
this Court dealt with the matter as follows:
"The
question then is, whether the interference with the punishment by the Labour Court was justified? In other words, the
question is whether the punishment imposed was so harsh or so disproportionate
to the charge proved, that it warranted or justified interference by the Labour Court? Here, it had been clearly found
that the employee during work, had hit his superior officer with a tension
screw on his back and on his nose leaving him with a bleeding and broken nose.
It has
also been found that this incident was followed by the unauthorised absence of
the employee. It is in the context of these charges found established that the
punishment of termination was imposed on the employee. The jurisdiction under
Section 107-A of the Act to interfere with punishment when it is a discharge or
dismissal can be exercised by the Labour Court only when it is satisfied that the discharge or dismissal
is not justified.
Similarly,
the High Court gets jurisdiction to interfere with the punishment in exercise
of its jurisdiction under Article 226 of the Constitution only when it finds
that the punishment imposed, is shockingly disproportionate to the charge
proved. These aspects are well settled. In U.P. SRTC v. Subhash Chandra Sharma
this Court, after referring to the scope of interference with punishment under
Section 11-A of the Industrial Disputes Act, held that the Labour Court was not justified in interfering
with the order of removal from service when the charge against the employee
stood proved. It was also held that the jurisdiction vested with the Labour Court to interfere with punishment was
not to be exercised capriciously and arbitrarily. It was necessary, in a case
where the Labour Court finds the charge proved, for a conclusion to be arrived
at that the punishment was shockingly disproportionate to the nature of the
charge found proved, before it could interfere to reduce the punishment. In Krishnakali
Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh, this Court after referring to
the decision in State of Rajasthan v. B.K. Meena also pointed out the
difference between the approaches to be made in a criminal proceeding and a
disciplinary proceeding. This Court also pointed out that when charges proved
were grave, vis-?is the establishment, interference with punishment of
dismissal could not be justified. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate
this Court again reiterated that the jurisdiction to interfere with the
punishment should be exercised only when the punishment is shockingly
disproportionate and that each case had to be decided on its facts. This Court
also indicated that the Labour Court or the Industrial Tribunal, as the case
may be, in terms of the provisions of the Act, had to act within the four
corners thereof. It could not sit in appeal over the decision of the employer
unless there existed a statutory provision in that behalf. The Tribunal or the Labour Court could not interfere with the
quantum of punishment based on irrational or extraneous factors and certainly
not on what it considers a compassionate ground. It is not necessary to
multiply authorities on this question, since the matter has been dealt with in
detail in a recent decision of this Court in Mahindra and Mahindra Ltd. v. N.B.
Narawade. This Court summed up the position thus: (SCC p. 141, para 20)
"20
. 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 workman concerned is found guilty of misconduct.
The said area of discretion has been very well defined by the various judgments
of this Court referred to hereinabove 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 require the reduction of the sentence, or the past conduct
of the workman which may persuade the Labour Court to reduce the
punishment."
It may
also be noticed that in Orissa Cement Ltd. v. Adikanda Sahu and in New Shorrock
Mills v. Maheshbhai T. Rao this Court held that use of abusive language against
a superior, justified punishment of dismissal. This Court stated
"punishment of dismissal for using abusive language cannot be held to be
disproportionate". If that be the position regarding verbal assault, we think
that the position regarding dismissal for physical assault, must be found all
the more justifiable.
Recently,
in Muriadih Colliery BCC Ltd. v. Bihar Colliery Kamgar Union this Court after
referring to and quoting the relevant passages from Krishnakali Tea Estate v. Akhil
Bharatiya Chah Mazdoor Sangh and Tournamulla Estate v. Workmen held: (SCC p.
336, para 17) "The courts below by condoning an act of physical violence
have undermined the discipline in the organisation, hence, in the above factual
backdrop, it can never be said that the Industrial Tribunal could have
exercised its authority under Section 11-A of the Act to interfere with the
punishment of dismissal."
12.
When the factual background is considered in the light of principles indicated
above, the inevitable conclusion is that the Labour Court and the High Court were not justified in directing the
reinstatement by interference with the order of termination. The orders are
accordingly set aside. The Order of termination as passed by the concerned
authority stands restored. The appeal is allowed with no orders as to costs.
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