Calcutta High Court
Alliance Mills (Lessees) Pvt. Ltd. vs State Of West Bengal And Ors. on 25 August, 1989
Equivalent citations: 94CWN451, (1991)ILLJ71CAL
JUDGMENT Mukul Gopal Mukherji, J.
1. The petitioner, M/s. Alliance Mills (Lessees) Pvt. Ltd. has impugned in the present proceeding an Award passed by the Third Industrial Tribunal on 12th February, 1988 in Case No. VII-129 of 1986.
2. It was contended that the respondent No. 4 Pradip Chakraborty, was a badli/casual labourer. On 21st December, 1982, the said Pradip Chakraborty severely assaulted one Kanai Charan Das, a co-worker at about 11.15 A.M. while the latter was going for lunch. He was beaten with a lathi which caused severe injuries and bruises and medical aid had to be given to the said Kanai Charan Das. The said Kanai Charan Das made a verbal complaint to Salil Banerjee, the Manager, Engineering Department and lodged a complaint at the police station. Sri Salil Banerjee, the Manager, sent a report to the Labour Officer of the petitioner company on the same day. The management of the company thoroughly examined and considered the matter and decided to remove the name of the respondent No. 4 from the Badli/Casual List for the reason stated in Clause (1) of Rule 5(b) of the Rules of Service incorporated in the Second Part of Certified Standing Order, which is quoted hereinbelow:--
"As special or registered badli workmen's name may be removed from the list of registered badli for any of the acts or omission listed as misconduct in the standing order."
3. By a notice dated 22nd December, 1982, the Mill Manager of the company intimated the removal of the respondent No. 4 from badli/casual list. After receipt of the said notice, the respondent No. 4 submitted a letter dated 3rd January, 1983 to the Mill Superintendent admitting his guilt and tendered apology. In the said letter, the respondent No. 4 specifically stated that he would not do it in future and that he could be pardoned and/or allowed to work. The management of the company, however, could not grant the prayer of the respondent No. 4 in consideration of the gravity of the offence and also considering his past record of service. The petitioner company contends that off and on the respondent No. 4 did not listen to the instruction given to him by the office superiors. Once in 1981, he committed a gross misconduct for which his name was removed from badli/casual list. Thereafter, the respondent No. 4 expressed regret, the management pardoned him on his regret for commission of misconduct and allowed him to work. Thereafter, the respondent No. 4 raised a dispute before the Labour Directorate. Conciliation also failed. On the basis of the conciliation report, the Government of West Bengal referred the matter as an industrial dispute to the Third Industrial Tribunal for adjudication of the issue as to whether the termination of service of Pradip Chakraborty was justified and to what relief, if any, was he entitled to.
4. The Tribunal directed the parties to submit their written statements. Accordingly, the respondent No. 4 filed his written statement on 30th Statement, 1986 and made various allegations against the petitioner company and further contended that no retrenchment compensation was paid to the respondent workmen under Section 25-F of the Industrial Disputes Act, 1947. The respondent No. 4 contended that as such the said order of termination was bad in law and the respondent No. 4 prayed for reinstatement of his service along with all back wages and other benefits of service. The petitioner company filed its written statement on 22nd December, 1986 denying and disputing the allegations made by the respondent No. 4. It was contended on behalf of the petitioner company that the order of reference was not a valid one since the State Government had no proper and sufficient materials before it to make the reference and further contended that the dispute was not really an industrial dispute. The petitioner company also challenged the locus startdi of the Union, namely, Jagatdal Thana Chatkal Mazdoor Union, as a true representative of the workman. That apart, it was pointed out that the Union did not sign the written statement; but then, it was signed by the respondent No. 4 above.
5. Be that as it may, the petitioner company contended further that the respondent No. 4 was employed as a badli/casual worker since 4th December, 1978 as and when necessary. On 21st December, 1982, he severely assaulted Kanai Charan Das at about 11.15 A.M. while he was going out for lunch and the latter being beaten with a lathi, which caused him severe injuries and bruises necessitating immediate medical aid, sent a report to Salil Kr. Banerjee, who also sent a report to the Labour Officer of the Mills with regard to the said incident. The management of the company thoroughly examined and considered the report and the complaint and decided to remove the name of the respondent No. 4 from the list of badli/casual workers for the reason stated in Clause (1) of Rule 5(b) of the Rules of Service incorporated in the second part of the Certified Standing Order of the Company. Accordingly, by a notice dated 22nd December 1982, the Manager of the Mills intimated the removal of respondent No. 4 from the badli/casual list. The petitioner company further contended that Pradip Chakraborty, the respondent No. 4 also committed misconduct in 1981 for which he was removed from the badli/casual list and thereafter he expressed his regret for the misconduct committed by him and tendered apology for the same. The management of the petitioner company pardoned him and allowed him to work. The petitioner-company further submitted that the removal of the name of the respondent No. 4 was not a case of retrenchment and as such, the provisions of Section 25(F) of the Industrial Disputes Act, 1947, were not at all applicable. It is further contended that the removal of the name of the respondent No. 4 from the badli/casual list had been proper and wholly justified and there had been no violation of the rules of natural justice. The petitioner-company as such contended before the Tribunal to hold that the removal of the respondent No. 4's case from the badli/casual list was justified and he was not entitled to any relief.
6. Both the parties filed before the Tribunal various documents in the said proceeding in support of their respective contentions.
7. The learned Advocate appearing on behalf of the company, submitted that though no domestic enquiry was held in the case, the decision of the company should not be held to be illegal ipso facto. The reference in this context was given to the decision of Firestone Tyre and Rubber Company (1981-II-LLJ-218), where it was held : that even though no enquiry was held or the enquiry held was not proper, the Tribunal has jurisdiction to allow the management to lead evidence justifying its action. The allegation was that the respondent No. 4 assaulted Kanai Charan Das with a lathi on 21st December, 1982 causing severe injuries. As such, the Tribunal allowed the company to produce its witness for justification of its action and pursuant to the direction of the Tribunal, the company produced three witnesses to prove the occurrence.
8. After the closure of the evidence it was suggested on behalf of the petitioner-company before the Tribunal that it being a case of Clause 14 (c), VIII of the Certified Standing Order of the company, the management was justified to remove him from his service under Rule 5, Sub-rule 1(b). The respondent No. 4 did not warrant any sympathy or mercy since he also committed riotous behaviour in the year 1981 and he had admitted the offence for which he tendered his apology. On the earlier occasion, the management condoned his offence and pardoned him and allowed him to work. But he did not amend his misbehaviour and for the second offence he could not pray for any lenient sentence. Hence, the management was justified to remove him from the roll of the badli/casual list.
9. The Tribunal, however, passed an Award on 12th February, 1988 and held that since no charge-sheet was served against the respondent No. 4 nor any enquiry was held, the Tribunal was to allow the management of the company to lead evidence. The same opportunity was being given to the management and the management having produced as many as three witnesses, it was proved that the management had been able to prove the guilt of the respondent No. 4. The Tribunal also observed that when the provisions of Section 25(F) of the Industrial Disputes Act were not followed, the retrenchment became illegal and invalid and so, the decision of the management to remove the name of the respondent No. 4 from the list of badli workmen stood set aside. Having considered the nature and gravity of the offence, the Tribunal was of the view that lenient punishment was sufficient to meet the ends of justice. Under Section 11A of the Industrial Disputes Act, 1947 the Tribunal had the power to prescribe any other form of punishment or lesser punishment as the circumstance of the case did require, in lieu of discharge or dismissal. The Tribunal as such, directed that the company should reinstate the respondent No. 4 in his position as he was on 21st December, 1982: but as regards the arrear of wages, from that day till the date of joining his duty, he would be entitled to receive 3/4th of the pay and all benefits that would accrue to him in the meantime.
10. The petitioner-company contends that the Tribunal has completely overlooked that the Standing Orders of the company did provide that no workman can be said to be permanent unless made permanent in writing. He was never treated as a permanent worker. The Tribunal has misconstrued the evidence on record and had arrived at an erroneous conclusion and the Award was perverse and bad in law. The petitioner-company further contends that it was on the respondent No. 4 to prove that he was a permanent employee. He having admitted that there was no document to show that he was permanently employed in the company, the Tribunal arrived at an erroneous conclusion in treating him as such in the Award dated 28th February, 1988.
11. The question as to whether the respondent No. 4 was a permanent employee or not is basically a question of fact. If the Tribunal has come to a finding on that score, it is not for this Court to sit in appeal on the propriety of the said decision. Both the parties have led evidence as to whether the respondent No. 4 was really a badli workman or a permanent employee. The Tribunal has come to a positive finding that the company has not been able to prove that the respondent No. 4 was a badli/casual workman. That apart, the Tribunal came to the other finding that the respondent No. 4 must get a notice and benefits as provided under Section 25(F) of the Act and without it, the retrenchment could not be held to be valid. It is not the case of the management that the respondent No. 4 was in fact retrenched under Section 25(F) of the Act. On the other hand, both the parties have adduced evidence on the question as to whether or not the respondent No. 4 was really guilty of any misconduct. The petitioner-company admitted that there was no domestic enquiry. In the decision of Firestone Tyre & Rubber Company reported in (1981-II-LLJ-218) it was held that if there be no enquiry or the enquiry held is improper, the Tribunal had every jurisdiction to allow the management to lead evidence to justify its action. As to whether or not Kanai Charan Das was really assaulted by the respondent No. 4 with a lathi on 21st December, 1982 causing injuries, was gone into by the Tribunal on the basis of the evidence as adduced by the Company. O.P.W. 1, Kanai Charan Das deposed in this matter and he frankly admitted that within the crowd it was very difficult for him to say as to who assaulted him. But it was his evidence that other persons who were there, stated to him that the assault was by the respondent No. 4, O.P.W. 2, the Manager deposed, inter alia, to the effect that Kanai Charan Das reported to him about the occurrence and he submitted a report to that effect which was Ext. D. He also saw the injury on his part. O.P.W. 3, Ramji Singh, a Sardar of the Company, stated that Pradip assaulted Kanai with a lathi. On a scrutiny of the evidence, the Tribunal held that the occurrence of assault by the respondent No. 4 stood proved. Ramji Singh was the person who saw the assault. There were also corroborating documents such as the report of the Manager, O.P.W.2 and the report of Kanai Charan Das, Ext. A filed immediately after the occurrence. There was no scope for concoction and embellishment. Ext. B was an application filed by the respondent No. 4 stating that the dispute was settled with Kanai Mistry amicably and he apologised for the same with an undertaking that in future no such occurrence would at all take place. The Tribunal found that it was also a clear proof that the respondent No. 4 knew Kanai Mistry and there was an occurrence with him for which he had to apologise. Though Pradip Chakraborty denied the signature and the management had produced O.P.W.6, Pursottan Chakraborty, a private document examiner of the Government Panel, who proved that Ext. B contained the signature of Pradip Chakraborty. The Tribunal ultimately held that the management has been able to prove the guilt of Pradip Chakraborty. Curious enough, the Tribunal was also under a misconception of law when it held that the provisions of Section 25(F) of the Act were not followed and as such, the retrenchment became illegal and invalid. This was a finding clearly unsustainable in law as well as in facts. The Tribunal had no business to hold in this particular perspective that the decision of the management to remove the name of the respondent No. 4 from the list of badli workmen stood set aside. The Tribunal, however, held that a lenient punishment would be sufficient to meet the ends of justice and in fact under the provisions of Section 11-A of the Industrial Disputes Act it has been held that the Tribunal has the power to prescribe any other form of punishment or lesser punishment as the circumstances of the case may require, in lieu of discharge or dismissal. The Tribunal directed the company to reinstate the respondent No. 4 in his position as he was on 21st December, 1982. As regards the arrears of wages from that date till the date of his joining the duty, the respondent No. 4 was found entitled to receive 3/4th of the pay and all benefits that would have accrued to him in the meantime.
12. In Wimco Sramik Union v. Seventh Industrial Tribunal and Ors. 1987 L.I.C.77, a Division Bench of our High Court held that if the workman is found guilty of theft and there was a punishment of dismissal, which was felt not unjustified, no interference under Section 11-A on the ground that the workman had rendered a long period of unblemished service and the stolen property worth of Rs. 150/-, was called for. That was a case where after holding a fair and proper enquiry, the workman concerned was found guilty of charge of attempting to steal company's property. An order of dismissal was passed against him for the proved misconduct. The question for consideration was whether the order of dismissal was unjustified so as to warrant interference by the Tribunal in exercise of its discretion under Section 11-A of the Industrial Disputes Act, regard being had to his past service and further the fact that the value of the property stolen was Rs.150/-. It was held by the Division Bench that the order of dismissal passed against the workman for the proved misconduct of theft was not unjustified as to merit interference by the Tribunal under Section 11-A. The offence of theft, which was committed by the employee concerned, showed that he was dishonest and his suitability and reliability to continue in service might be affected by that reason and would have a bearing on his contract of service and as such, the said offence was a good ground for dismissing the employee concerned from his service. The fact that the workman had rendered a long period of unblemished service and the property stolen was worth only Rs.150/- did not justify a lesser punishment. If the workman was allowed to gel away with s lesser punishment under Section 11-A of the Act, it would be very difficult for the management to maintain discipline in the company and such being the fact, and when the dismissal of the workman was preceded by a fair and proper enquiry, there was no justification for interference with the order of dismissal under Section 11-A of the Industrial Disputes Act. Such is, however, not the case here. In the present case, there was no fair and proper enquiry and that was the precise reason why the Tribunal allowed the Management to adduce evidence to justify the finding.
13. A judgment of Andhra Pradesh High Court in the Milk Products Factory, A.P. Dairy Development Corporation Ltd. v. K. Durga Rao 1988 L.I.C 833, was cited before us by the learned Advocate fur the respondent No. 4. That was a case where the Labour Court under Section 11-A of the Act was empowered to go into the question of the adequacy of the punishment. Where an attender was entrusted with the duties of receiving milk, weighing it and making entries in several registers and if there were a few lapses on his part and the delinquent did not gain any particular amount of money illegally by manipulation of the entries in the weighing register the punishment of dismissal for such lapses is undoubtedly a harsh one, unrelated to the magnitude of the lapses committed. The principle of proportionality must always be borne in mind and the magnitude of the punishment should match the atrocity of the lapses committed. It was decided in this case that the Labour Court was bound to uphold whatever punishment was awarded by the management, without considering the nature of the punishment and the nature of the lapses of the workman held proved. It was also found that a reference made by the Government to the Labour Court in such circumstances was not illegal.
14. As was held in The Workmen of Firestone Tyre & Rubber Co. of Inida (P) Ltd. v. The Management and Ors. (1973-I-LLJ-278), once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimization. Under Section 11-A of the Act, though the Tribunal may hold that the misconduct is proved, nevertheless it may be of the opinion that the order of discharge, or dismissal for the said misconduct is not justified. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now recognised to have been conferred on the Tribunal by Section 11-A of the Industrial Disputes Act.
15. As has been pointed out in the case of R.M. Parmar v. Gujarat Electricity Board, Baroda (1983-I-LLJ-261) by a Division Bench of the Gujarat High Court, the punishment is not and cannot be the 'end' in itself. The punishment for the sake of punishment cannot be the motto. Whilst deliberating upon the jurisprudential dimension the following factors must be considered (pp. 264-265):
1. In a disciplinary proceedings for an alleged fault of an employee punishment is imposed not in order to seek retribution or to give vent -to feeling of wrath.
2. The main purpose of a punishment is to correct the fault of the employee concerned by making him more alert in the future and to hold out a warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment. And the approach to be made is the approach parents make towards an erring or misguided child.
3. It is not expedient in the interest of the administration to visit every employee against whom a fault is established with the penalty of dismissal and to get rid of him. It would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault.
4. In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide.
5. When different categories of penalties can be imposed in respect of the alleged fault, one of which is dismissal from service, the disciplinary authority perforce is required to consult himself for selecting the most appropriate penalty from out of the range of penalties available that can be imposed, having regard to the nature, content and gravity of the default. Unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concerned it would be absolutely unsafe to retain him in service, the maximum penalty of dismissal cannot be imposed. If a lesser penalty can be imposed without seriously jeopardising the interest of the employer the disciplinary authority cannot impose the maximum penalty of dismissal from service. He is bound to ask his inner voice and rational faculty why a lesser penalty cannot be imposed.
6. It cannot be overlooked that by and large it is because the maximum penalty is imposed and total ruination stares one in the eyes that the employee concerned is obliged to approach the Court and avail of the costly and time-consuming machinery to challenge in desperation the order passed by the disciplinary authority. If a lesser penalty was imposed, he might not have been obliged to take recourse to costly legal proceedings which result in loss of public time and also result in considerable hardship and misery to the employee concerned.
7. When the disciplinary proceedings are in favour of the employee the employer has often to pay back wages say for about 5 years without being able to take work from the employee concerned. On the other hand, the employee concerned would have had to suffer economic misery and mental torture for all these years. Even the misery of being obliged to remain idle without work would constitute an unbearable burden. And when the curtain drops everyone is left with a bitter taste in the mouth. All because extreme penalty of dismissal or removal is imposed instead of a lighter one.
8. Every harsh order of removal from service creates bitterness and arouses a feeling of antagonism in the collective mind of the workers and gives rise to a feeling of class conflict. It does more harm than good to the employer as also to society.
9. Taking of a petty article by a worker in a moment of weakness when he yields to a temptation does not call for an extreme penalty of dismissal from service. More particularly when he does not hold a sensitive post of trust (pilferage by a cashier or by a store-keeper from the stores in his charge, for instance, may be viewed with seriousness). A worker brought up and living in an atmosphere of poverty and want when faced with temptation, ought not to, but may, yield to it in a moment of weakness. It cannot be approved, but it can certainly be understood, particularly in an age when even the rich commit economic offences to get richer and do so by and large with impunity. (And even tax evasion or possession of black-money is not considered to be dishonourable by and large). A penalty of removal from service, is, therefore, not called for when a poor worker yields to a momentary temptation and commits an offence which often passes under the honourable name of Kleptomania when committed by the rich.
16. The Tribunal or the Labour Court in exercising its power to reduce the penalty has to inform itself of these considerations and play the role assigned to it by its creator loyally and faithfully and in harmony with the enlightened spirit which permeates the legislation.
17. Taking an overall view of this judgment, I do not find that any case has been made out by the petitioner company calling for an interference in this matter. As regards the ultimate penal order that was passed by the Tribunal, though I set aside the finding as made by the Tribunal so far as it concerns Section 25(F) of the Industrial Disputes Act, I hold that the respondent No. 4 would be entitled to a reinstatement along with the back wages as directed by the Tribunal.
18. The writ application stands disposed of accordingly. There will however be no order as to costs. The prayer for stay of operation of this order is considered and rejected.
19. Application disposed of.