Delhi District Court
Gujarat Steel Tubles Ltd. vs . Its Mazdoor on 2 May, 2007
IN THE COURT OF SH. O.P. SAINI, PRESIDING OFFICER,
LABOUR COURT NO. VII, DELHI.
I.D. NO. : 187/99
B E T W E E N
The workman Sh. Sita Ram Sharma
RZJ41, Raj NagarI,
Palam Colony, New Delhi.
A N D
The Management of M/s Maurya Sheraton Hotel & Towers,
Diplomatic Enclave, New Delhi.
Ref.: F.(2271)/99/Lab/25212216 dated 21.6.99.
A W A R D
1. Workman Sh. Sita Ram Sharma raised an industrial
dispute against his illegal dismissal from services, which was
referred to this court for adjudication by the Secretary (Labour),
Government of National Capital Territory of Delhi, in the
following terms of reference :
: 1 : (RC)
"Whether the dismissal of Sh. Sita Ram Sharma
from services by the management is illegal and
unjustified and if so, to what relief is he entitled and
what directions are necessary in this respect?"
2. Brief facts of the case as made out from the record
are that the workman was employed with the management as
senior accounts assistant. His last drawn wags were Rs.6,000/
per month. He was performing his duties honestly, satisfactorily
and efficiently and the record of the workman was clean and
unblemished. It is alleged that the management with malafide
intention and in order to victimize the workman, instituted a
domestic inquiry against him in which he was held guilty and
was accordingly dismissed vide order dated 5.12.98. It is
claimed that the inquiry was conducted improperly and in
violation of principles of natural justice. It is repeatedly claimed
that the dismissal of the workman is unlawful and unjustified.
He served a demand notice on the management but to no use.
Thereafter, the workman raised an industrial dispute before the
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conciliation officer but the same could not be settled and
ultimately came to be referred to this court in the above terms of
reference. It is claimed that the workman is unemployed since
the date of his termination. It is prayed that since his
termination is illegal and unjustified, the management may be
directed to reinstate him with consequential benefits including
continuity of service and full back wages.
3. Management contested the claim and filed its
written statement admitting that the workman was working with
it. It is also admitted that the workman was chargesheeted vide
chargesheet dated 12.10.96 and the charges were as under :
"It has been reported against you as under :
That on October 07, 1996 while you were
on duty at the Airport Lounge 'B' at about
1330 hours you abused Mr. Ram Singh
Mandal and physically assaulted him.
That above act committed by you is gross
: 3 : (RC)
violation of the Certified Standing Orders
rules and regulation governing your
employment as a Senior Accounts
Assistant. The relevant clauses are given
below for your reference :
Clause 26
xvii Intimidation or coercion of
guests or workmen for any reason
whatsoever.
xviii Threatening, intimidating,
coercion assaulting, interfering, coercion
assaulting, interfering with or quarreling
with any person on the premises.
xix Indulging in any act by work,
posture, deed or gesture which is
detrimental to the interests or reputation of
the hotel.
xx Use of offensive, vile or obscene
language or gesture or postures with hidden
imputations against the management or the
company or the guests of the hotel.
xxiv Drunkenness, fighting, riotous
disorderly or indecent behaviour or any act
subersive of discipline or efficiency.
xxxvii Breach of any law or status
applicable to the hotel or its employees.
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You are requested to show cause in writing
within 48 hours of the receipt of this letter
as to why disciplinary action should not be
taken against you, failing which it shall be
deemed that you have no explanation to
offer and action as deemed fit shall taken
against you."
4. It is admitted that an inquiry was conducted and in
the inquiry, workman was held guilty and he was consequently
dismissed from services. It is claimed that the inquiry was
conducted fairly and properly in accordance with principles of
natural justice. It is claimed that the dismissal is lawful and
justified and does not call for any interference by the court.
5. Workman filed rejoinder to the written statement,
wherein he denied the allegations contained in the written
statement and reasserted the averments made in the statement of
claim.
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6. On the pleadings of the parties, following issues
were settled for trial by my learned predecessor vide order dated
24.1.2001 :
I) Whether a proper and fair enquiry was not conducted
as per principles of natural justice?
II) As per terms of reference.
7. However, issue No.1 as referred to above was
decided in favour of the workman and against the management
by my learned predecessor vide order dated 5.2.2005 and the
inquiry conducted by the management was held to be vitiated
and was set aside and the case was listed for evidence of the
parties to prove the allegations in the court.
8. In support of his case workman has examined
himself as WW1.
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9. On the other hand, management has examined Sh.
Sudhir Tyagi as MW1, who has placed on record his affidavit
Ex.MW1/A, along with documents Ex.MW1/1 to 11.
10. Management also examined Sh. Ram Ashish
Mandal as MW2, who has placed on record his affidavit
Ex.MW2/A.
11. I have heard the arguments at the bar and have
carefully gone through the file.
12. My findings on issue No. 2 are as under :
13. It is submitted by learned authorized representative
(Ld. AR) for the workman that no such incident as alleged took
place. It is submitted that no evidence has been led on record by
the management to prove the incident. It is also submitted that
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victim Sh. Ram Singh Mandal has not been examined as a
witness by the management and no reason has been assigned for
the same and, as such, management has failed to prove the
allegations. My attention has been invited to the following
authorities :
I)
Gujarat Steel Tubles Ltd. Vs. Its Mazdoor
Sabha AIR 1980 SC 1896
II) Indian Railway Construction Co. Ltd. Vs. Ajay
Kumar (2003) 4 SCC 579
III) Hindustan Steel Vs. Labour Court, Orissa AIR
1977 SC 31
14. Workman has also filed written submissions, copy
of which has been supplied to the management.
15. On the other hand, Ld. AR for the management
submitted that MW1 Sh. Sudhir Tyagi and MW2 Sh. Ram
: 8 : (RC)
Ashish Mandal have proved the incident and examination of Sh.
Ram Singh Mandal was not necessary. My attention has been
invited to the following authorities :
I) L.K. Verma Vs. H.M.T. Ltd. & Anr. 2006 (108)
FLR 1101
II)
Heckett Engineering Co. Vs. Workman (1978) I
LLJ SC 23
III) Arifa Nauman & Ors. vs. Govt. of NCT of Delhi
& Ors. 2007 LLR 127
16. Section 2(oo) of the Industrial Disputes Act
(hereinafter to be referred as the 'Act') defines "retrenchment" as
under:
"retrenchment' means the termination by the
employer of the service of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action but does not include
(a) voluntary retirement of the
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workman; or
(b) retirement of the workman on
reaching the age of superannuation if the
contract of employment between the employer
and the workman concerned contains a
stipulation in that behalf ; or
(bb) termination of the service of the
workman as a result of the nonrenewal of the
contract of employment between the employer
and the workman concerned on its expiry or of
such contract being terminated under a
stipulation in that behalf contained therein; or
(c) termination of the service of a
workman on the ground of continued ill
health"
17. Section 25 F of the Act, provides conditions to be
complied with at the time of retrenchment of a workman and
lays down as under :
"No workman employed in any industry
who has been in continuous service for not
less than one year under an employer shall
be retrenched by that employer until
(a) the workman has been given one
month's notice in writing indicating the
: 10 : (RC)
reasons for retrenchment and the period of
notice has expired, or the workman has
been paid in lieu of such notice, wages for
the period of the notice;
(b) the workman has been paid, at
the time of retrenchment, compensation
which shall be equivalent to fifteen days'
average pay for every completed year of
continuous service or any part thereof in
excess of six months; and
(c) notice in the prescribed manner
is served on the appropriate Government
for such authority as may be specified by
the appropriate Government by notification
in the Official Gazette"
18. In an authority reported as S.M. Nilajkar & Ors.
Vs. Telecom District Manager, Karnataka (2003) 4 SCC 27,
Hon'ble Supreme Court dealt with the meaning of
"retrenchment" and observed in paragraph 12 as under :
"12. "Retrenchment" in its ordinary
connotation is discharge of labour as surplus
though the business or work itself is
continued. It is well settled by a catena of
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decisions that labour laws being beneficial
pieces of legislation are to be interpreted in
favour of the beneficiaries in case of doubt
or where it is possible to take two views of a
provision. It is also well settled that
Parliament has employed the expression
"the termination by the employer of the
service of a workman for any reason
whatsoever" while defining the term
"retrenchment", which is suggestive of the
legislative intent to assign the term
"retrenchment" a meaning wider than what
it is understood to have in common
parlance. There are four exceptions carved
out of the artificially extended meaning of
the term "retrenchment", and therefore,
termination of service of a workman so long
as it is attributable to the act of the employer
would fall within the meaning of
"retrenchment" dehors the reason for
termination. To be excepted from within
the meaning of "retrenchment" the
termination of service must fall within one
of the four excepted categories. A
termination of service which does not fall
within categories (a), (b), (bb) and (c) would
fall within the meaning of "retrenchment.
19. In view of the law quoted above, it is clear that if a
workman is terminated as a result of disciplinary proceedings,
: 12 : (RC)
then the termination does not amount to "retrenchment" and the
workman is not entitled to the benefit of section 25 F of the Act
referred to above.
20. It is a fact that management has not examined Sh.
Ram Singh Mandal, who was allegedly abused and physically
assaulted by the workman as per chargesheet Ex.MW1/M6
dated 12.10.96.
21. Now, the question is : What is the impact of his
nonexamination? In such a situation when an employee
commits a misconduct, it is basically and substantially an act
against the management and an inquiry is conducted to ensure
maintenance of discipline at the work place and also to protect
the image of the management. In such a situation even if the
victim does not come forward to testify before the inquiry
officer, court or tribunal, even then, the management is at liberty
: 13 : (RC)
to prove the misconduct by means of other witnesses. In this
regard, it is instructive to quote an authority reported as Ram
Kumar vs. M/s I.T.D.C. (Ashoka Hotel Unit) 2002 LLR 527,
wherein Rs.150/ were stolen from the possession of a foreign
guest at Ashoka Hotel, New Delhi. While dealing with the
situation, Hon'ble High Court observed in paragraph 7 as
under :
"Learned counsel for the respondents has
been heard in opposition and in response to the pleas urged by the petitioner. As far as the first contention is concerned, in my view, the nonexamination of the guest a foreign national during enquiry cannot, in any manner, be either fatal to the enquiry or said to dilute the same. It would almost be impossible and impractical to expect that the guest a foreign national who suffered a theft of a sum of Rs.150 should be summoned or produced subsequently,when the enquiry is done two months later for proving that the said sum was stolen. It is not disputed before me that the complaint as lodged by the guest is on record."
: 14 : (RC)
22. Similarly, in an authority reported as East India Hotels Vs. Their Workmen 1974 Lab IC 532 (V 7 C115), a similar incident had taken place in a hotel and it was held that it was not necessary for the complainant to give his evidence as his absence may be due to the fact that it was for employer to take action on the complaint and to protect their prestige and reputation which was mainly their affair. To the same effect is Shri J.D. Jain Vs. The Management of State Bank of India & Anr. 1982 LLJ I 54 (SC).
23. In view of the law quoted above, it is clear that even if victim does not come forward to make his statement, even then, the allegation of misconduct can be proved by the management with the help of appropriate evidence. As such, it is not necessary that in every case the victim should be examined. The contention, as such, is without merit and the same is dismissed. The management, as such, can prove the : 15 : (RC) allegation by examining other witnesses, if the victim is not coming forward to testify in the inquiry before the inquiry officer/court/tribunal. Even if, the victim Sh. Ram Singh Mandal was willing to testify in favour of the workman, he could have summoned him.
24. It is next contended that even in the statements of MW1 Sh. Sudhir Tyagi and MW2 Sh. Ram Ashish Mandal, there is no evidence at all against the workman. It is submitted that evidence is quite meager and that too inconsistent, contradictory and unreliable. MW1 Sh. Sudhir Tyagi deposed in his affidavit Ex.MW1/A in paragraph 4 as under : "I say that Shri Ram Singh Mandal, who was also working as a General Worker at the Airport Lounge of the Hotel at the domestic airport, had made a complaint to me that on 7.1.96, during his duty hours, Shri Sita Ram Sharma who was also working during the said duty hours at the said Airport Lounge of the Hotel, had : 16 : (RC) abused and slapped him without any reason/provocation. A copy of the said complaint made by Shri Mandal is Ex.MW1/M4. The said incident had taken place in the presence of Shri Ashish and Shri Parvesh Saxena, the other two employees of the Management Hotel working at the said Airport Lounge. I inquired from Shri Sita Ram Sharma and asked him as to why he had misbehaved with Shri Manal. Shri Sita Ram Sharma admitted having slapped and abused Shri Mandal and tried to justify his mis deamenour. I thereafter, forwarded the said complaint of Shri Mandal to the personnel Department. I also made a report on the said incident and a copy of my said reports Exb.MW1/M5."
25. Similarly, MW2 Sh. Ram Ashish Mandal deposed in his affidavit Ex.MW2/A in paragraphs 2 and 3 as under : "2. I say that during October, 1996 I was working at the 'Airport Lounge of the Hotel at the domestic airport (Palam), New Delhi. Shri Sita Ram Sharma as well as Shri Ram Singh Mandal were also working at the said Airport Lounge of the Hotel during the said period.
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3. I say that on 7.10.96 at around 1.30 p.m. during my duty hours, I saw Shri Sita Ram Sharma abusing and slapping Shri Ram Singh Mandal, stating that he did not work and that he should go away."
26. A bare perusal of the aforesaid statements would reveal that they have deposed that the workman abused and slapped Sh. Ram Singh Mandal. To the same effect are the contents of Ex.MW1/M4, the report lodged by Sh. Ram Singh Mandal with the management. As such, it cannot be said that the evidence recorded against the workman is either no evidence at all or it is meager and insignificant. I may add that sufficiency or insufficiency of evidence becomes irrelevant as long as there is some evidence available on record to connect the workman with the alleged misconduct. In this regard, it is instructive to quote an authority reported as Sher Bahadur Vs. Union of India and others (2002) 7 SCC 142, wherein Hon'ble Supreme Court observed in paragraph 7 as under : : 18 : (RC) "It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in the law ....................................................... ..................................................................."
27. Similarly, in another authority reported as Lalit Popli Vs. Canara Bank and others 2003 II AD (SC) 509, Hon'ble Supreme Court observed in paragraphs 18 and 19 as under: "18. In B.C. Chaturvedi Vs. Union of India and Ors. (1995 (6) SCC 749) the scope of judicial review was indicated by stating that review by the Court is of decision making process and where the findings of the disciplinary authority are based on some evidence, the Court or the Tribunal cannot reappreciate the evidence : 19 : (RC) and substitute its own finding.
19. As observed in R.S. Saini Vs. State of Punjab and Ors. (1999 (8) SCC
90) in paragraphs 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits. It was noted as follows:
"16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of nonapplication of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiry authority is the sole judge of the fact so : 20 : (RC) long as there is some legal evidence to substantiate the finding and the adequacy of reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings,
17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions. In our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any nonapplication of mind on the part of the inquiring authority.
: 21 : (RC) Likewise the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard."
28. When the inquiry conducted by the management is defective and is set aside or no inquiry is conducted, then the management can prove the allegations in the court itself and the court itself conducts inquiry into the same. In this regard, it is instructive to quote an authority reported as Workmen of M/s Firestone Tyre and Rubber Company of India Ltd. Vs. The Management AIR 1973 SC 1227, wherein Hon'ble Supreme Court observed in paragraph 27 as under :
27. From those decisions, the following principles broadly emerge : : 22 : (RC) (1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in : 23 : (RC) order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the isue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to be decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. In case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightway, without anything more direct reinstatement of a dismissed or discharged employee, : 24 : (RC) once it is found that o domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estte V. The Workmen, 19711 SCC 742 =(AIR 1971 SC 2171) within the judicial decision : 25 : (RC) of a Labour Court or Tribunal."
29. The next contention of the Ld. AR for workman is that the statements of MW1 Sh. Sudhir Tyagi and MW2 Sh.
Ram Ashish Mandal are contradictory to each other and there are many discrepancies in the same. However, Ld. AR for management has not been able to point out as to which are the contradictions and discrepancies which go to the root of the matter and are good enough to destroy their evidencery value. I may add that management is not required to prove the allegations to the hilt and it is good enough if there is some evidence on record against the delinquent as is clear from the authorities referred to above.
30. It is next submitted by Ld. AR for workman that workman is a victim of victimization and unfair labour practices being committed by the management. It is also submitted that : 26 : (RC) workman was a member of union and, as such, the management was annoyed with him and, as such, they were hell bent upon getting rid of the workman by one way or the other. However, a bare perusal of the affidavit Ex.WW1/A would reveal that workman has not alleged any victimization or unfair labour practices on the part of the management. The charge of victimization and unfair labour practices is quite a serious charge and must be alleged on the basis of appropriate facts laid out in the statement of claim as well as on the basis of documentary and other evidence on record. But in the instant case, there is neither any fact in the claim in support of victimization and unfair labour practices nor there is any documentary evidence. There is no material on record to the effect that workman was a member of any union and, as such, management was annoyed with him. In this regard, it is instructive to quote an authority reported as M/s Bharat Iron orks Vs. Bhagubhai Balubhai Patel and others, 1976 LAB W : 27 : (RC) I.C. 4, wherein Hon'ble Supreme Court while dealing with the question of victimization and unfair labour practices observed in paragraph 10 as under : "The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced."
31. Similarly, in another authority reported as Bharat Forge Co. Limited Vs. Uttam Manohar Nakate (2005) 2 SCC 489, Hon'ble Supreme Court observed in paragraphs 22 and 27 as under : : 28 : (RC) "22. In the instant case although victimization has been taken to be a ground of complaint, no factual foundation therefor was laid and it was confined to quoting only the legal provisions. No plea of legal victimization was also taken in the complaint petition.
27. In Bhagubhai Balubhai Patel (Supra), this Court observed :
"........ In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimization as a defence will fall flat. This is why once, in the opinion of the Tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic inquiry or before the Tribunal on merits, the plea of victimization will not carry the case of the employee any further. A proved misconduct is antithesis of victimization as understood in industrial relations. This is not to say that the Tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimization. (underlining by me)"
: 29 : (RC)
32. In view of the above discussion, I am satisfied that the workman is guilty of misconduct alleged against him vide letter dated 12.10.96, Ex.MW1/M6.
33. Now, the question is : As to whether the punishment awarded to him is lawful and justified? It is submitted by Ld. AR for workman that the punishment of dismissal awarded to the workman is harsh, excessive and disproportionate to the misconduct alleged against him. It was the first incident and there is no previous record of any misbehavior or misconduct by the workman. It is submitted that a lenient view may kindly be taken and some other punishment in place of dismissal may be awarded.
34. On the other hand, Ld. AR for management submitted that abusing and assaulting a coemployee is a serious : 30 : (RC) misconduct and cannot be ignored or condoned. It is repeatedly submitted by him that punishment of dismissal imposed upon the workman is lawful and justified for the misconduct committed by him.
35. Section 11 A of the Act provides as under: "Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, 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 : 31 : (RC) require:
Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be , shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."
36. In an authority reported as Life Insurance Corporation of India Vs. R. Dhandapani, 2006 1 LLJ SC 329, Hon'ble Supreme Court dealt with powers of court under section 11A of the Act and observed in paragraphs 8 to 10 as under: "8. 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 : 32 : (RC) 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.
: 33 : (RC)
10. 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."
37. Similarly, in an authority reported as State of U.P. Vs. Sheo Shanker Lal Srivastave & Ors., 2006 III AD (S.C.) 248 while dealing with question of punishment to delinquent employee, who was a stenographer, Hon'ble Supreme Court observed in paragraph 25 as under: "It is now wellsettled that principles of law that the High Court or the Tribunal in exercise of its power of judicial review would not normally interfere with the quantum of punishment. Doctrine of proportionality can be invoked only under certain situations. It is now wellsettled that the High Court shall be very slow in interfering with the quantum of punishment, unless it is found to be shocking to one's conscience."
: 34 : (RC)
38. In another authority reported as Madhya Pradesh Electricity Board Vs. Jagdish Chandra Sharma, 2005 III AD (S.C.) 424, Hon'ble Supreme Court dealt with the case of an employee who had assaulted his official superior. The punishment of dismissal was upheld with the following observations in paragraph 9 : "In the case on hand, the employee has been found guilty of hitting and injuring his superior officer at the work place, obviously in the presence of other employees. This clearly amounted to breach of discipline in the organization. Discipline at the work place in an organization like the employer herein, is the sine qua non for the efficient working of the organization. When an employee breaches such discipline and the employer terminates his services, it is not open to a Labour Court or an Industrial Tribunal to take the view that the punishment awarded is shockingly disproportionate to the charge proved. We have already referred to the views of this Court. To quote Jack Chan, "discipline is a form of civilly responsible behaviour which helps maintain social order and contributes to the preservation, if : 35 : (RC) not advancement, of collective interests of society at large". Obviously this idea is more relevant in considering the working of an organization like the employer herein or an industrial undertaking. Obedience to authority in a workplace is not slavery. It is not violative of one's natural rights. It is essential for the prosperity of the organization as well as that of its employees. When in such a situation, a punishment of termination is awarded for hitting and injuring a superior officer supervising the work of the employee, with no extenuating circumstance established, it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate. The Labour Court and the High Court in this case totally misdirected themselves while exercising their jurisdiction. The Industrial Court made the correct approach and came to the right conclusion".
39. Similarly in L.K. Verma (Supra), Hon'ble Supreme Court observed in paragraphs 15 and 16 as under : "15. So far as the contention as regard quantum of punishment is concerned, suffice it to say that verbal abuse has been : 36 : (RC) held to be sufficient for inflicting a punishment of dismissal.
Mahindra and Mahindra Ltd. Vs. N.N. Narwade ete., is a case wherein the misconduct against delinquent was 'verbal abuse'. This Court held:
"It is no doubt true that after introduction of section 11A 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 11A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to : 37 : (RC) 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 11A 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 : 38 : (RC) 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."
In Muriadih Colliery Vs. Bihar Colliery Kamgar Union, this Court, inter alia, following Mahindra and Mahindra (Supra) held :
"It is wellestablished principle in law that in a given circumstance it is open to the Industrial Tribunal acting under section 11A of the Industrial Disputes Act, 1947 has the jurisdiction to interfere with the punishment awarded in the domestic inquiry for good and valid reasons. If the Tribunal decides to interfere with such punishment it should bear in mind the principle of proportionality between the gravity of the offence and the stringency of the punishment. In the instant case it is the finding of the : 39 : (RC) Tribunal which is not disturbed by the writ Courts that the two workmen involved in this appeal along with the others formed themselves into an unlawful assembly, armed with deadly weapons, went to the office of the General Manager and assaulted him and his colleagues causing them injuries. The injuries suffered by the General Manager were caused by lathi on the head. The fact that the victim did not die is not a mitigating circumstance to reduce the sentence of dismissal."
16. These questions recently came up for consideration in Hombe Gowda Edn. Trust and another Vs. State of Karnataka and others, upon considering a large number of cases, this Court held : "Indiscipline in an educational institution should not be tolerated. Only because the Principal of the Institution had not been proceeded against, the same by itself cannot be a ground : 40 : (RC) for not exercising the discretionary jurisdiction by us. It may or may not be that the Management was selectively vindictive but no Management can ignore a serious lapse on the part of a teacher whose conduct should be an example to the pupils.
This Court has come a long way from its earlier view points. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach of the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed that how discipline at the workplaces /industrial undertaking received a set back. In view of the change in economic place of the country, it may not now be proper to allow the employees to break the discipline with impunity.
: 41 : (RC) Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution of India, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless and appropriate case is made out therefor. The Tribunal being inferior to that of this Court was bound to follow the decisions of this Court which are applicable to the fact of the present case in question.
The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same."
See also State of Rajasthan and another Vs. Mohmmed Ayub Naz."
40. In the instant case, the management has been successful in proving that on 7.10.96, the workman had : 42 : (RC) verbally abused and physically assaulted Sh. Ram Singh Mandal, a coemployee. As such, his misconduct is quite serious and deserves to be punished appropriately and severely in order to ensure discipline at the work place. The law referred to above is quite clear in this regard. As such, the punishment of dismissal imposed upon the workman is lawful, justified and proportionate. Moreover, the management is engaged in hospitality business and is running a hotel and in such institutions/ managements, behaviour of the work force is of utmost importance and their work force is expected to be well behaved and disciplined.
41. The punishment of dismissal, as such, does not call for any interference by the court and the same is upheld. The dismissal is as a result of disciplinary proceedings initiated against the workman and, as such, he is not entitled to any relief.
The issue is accordingly decided in favour of the management : 43 : (RC) and against the workman.
42. The reference is answered in the above terms and award is passed accordingly. Six copies of the award be sent to the appropriate government. File be consigned to record room.
Dated : 2.5.2007 (O.P. SAINI) PRESIDING OFFICER, LABOUR COURT NO. VII, DELHI.
: 44 : (RC)