Himachal Pradesh High Court
Cement Corporation Of India vs State Of H.P. And Ors. on 13 December, 1994
Equivalent citations: (1995)IILLJ987HP
JUDGMENT Gulab C. Gupta, C.J.
1. The petitioner is a Government Company, financed and controlled by the Union of India and runs a Cement Plant at Rajban, District Sirmour. It also has a Lime-Stone Quarry situate at a distance of 10 Kms. from the said factory. The petitioner had, dismissed respondent Nos. 2 to 6 by an order dated May 21, 1988 on proved misconduct consisting of assaulting senior officers of the plant and mine, abusing and threatening them and otherwise bringing the work of the factory and mine to stand still. The appeal filed by the respondents workmen having been dismissed, they raised an industrial dispute under the provisions of the Industrial Disputes Act, 1947 and the same was referred to the respondent Labour Court for adjudication. The respondent-Labour Court by its award dated September 23, 1991 (Annexure P-13) held that the domestic enquiry held by the petitioner-Management against the respondents workers was legal and valid. The respondent Labour Court, however, held that the punishment of dismissal was unreasonable inasmuch as the past record of the respondents was not considered. The respondent-Labour Court, therefore, directed their re-instatement and substituted the said punishment with stoppage of three increments with cumulative effect. The respondent-workmen were also granted continuity of service but no back wages were allowed. The petitioner aggrieved by the aforesaid award challenges its legal validity in this writ petition filed under Article 226 of the Constitution.
2. Respondent Nos. 2 and 3 are the President and General Secretary respectively of the Workers' Union at the petitioners' establishment and the other respondents are their active officers and workers. According to the petitioner Management, one Rajinder Parkash, employed in the electrical department of the factory wanted a change in his shift on October 27, 1986 and approached Shri A.K. Gupta, Manager (Electrical) for the purpose. This was not accepted, as according to him, it was not possible to make alternative arrangement within the short time. The said Rajinder Parkash, thereafter complained to respondent Nos. 2 and 3, President and General Secretary to the Union against the said Shri A.K. Gupta, Manager. These two respondents, thereafter approached the said Shri Gupta, Manager and insisted on the change in the shift. Since it was not agreed, they allegedly abused the Manager Shri A.K. Gupta and manhandled him. The matter was, therefore, reported to the General Manager of the establishment who ordered suspension of both the respondents. On service of the aforesaid order on October 29, 1986, the two respondents became angry, forcibly entered the factory gate and sounded the siren. On hearing the siren all factory workers came out of their work and were addressed by the two respondents. Thereafter these two respondents associated by others led a mob of workmen to the office of the General Manager. Since the General Manager was not in the office, they damaged office furniture and table lamp and went to the office of the Manager (Personnel). They thereafter assaulted the said Manager (P), dragged him inside the office and gave him blows. Thereafter the mob went to the office of the Deputy Manager (Personnel) Shri K.V. Kurup, who was similarly assaulted. The mob under the leadership of the two respondents, thereafter attacked another official Shri G.S. Anand who was also manhandled. Manager (Finance) Mr. Pilley was also similarly assaulted. The respondent Nos. 2 and 3, thereafter led the mob into the factory and attacked Sh. V.P. Gupta, Manager (M and S), Sh. A.K. Shrivastava (Deputy Manager Production), G.S.A. Hussain (Mechanical Engineer), and A.K. Srivastava (Sr. Mechanical Engineer). The riot and assault aforesaid continued between 9 a.m. to 11 a.m. Wireless and telephones' lines were also damaged and put out of use. Window panes were also damaged besides the furniture. A report of the incident was lodged at the Police Station, Rajban, (Paonta Sahib) and a case of rioting and assault registered.
3. It is also the case of the petitioner-Management that news of rioting was conveyed to the workers of the mines through rope-way-system at about 2.30 p.m. when the respondent Nos. 4 and 6 requested for a vehicle to go to Rajban in order to participate in the Trade Union Activity. Respondent No. 6 Gita Ram claimed to be senior Vice-President of the Union and in the company of respondent No. 4, Kishan Singh, assaulted A.D. Burmen, Manager (Mining) on his refusal to provide the vehicle. Respondent No. 3 is alleged to have gone to the mines at 4 p.m. on October 29, 1986, collected workmen and addressed them. He, in the company of others, led the mob to the mining-office, attacked D.P. Soni, Mining Engineer, Sh. Kul Sareshta, Senior Mining Officer, Sh. R.K. Harkawat, Deputy Manager (Mechanical). Respondent Nos. 2 to 6 and others were charge-sheeted for "fighting or riotous, disorderly or indecent behaviour, threatening, abusing or assaulting superior officers, causing wilful damage to work in progress, and property of the petitioner and preaching and inciting - violence". There was another minor charge of leaving the places of work without permission against some of them. Since the charges were denied, a regular departmental enquiry was held in which they fully participated. The Inquiry Officer however, held the respondents guilty, of assault on the officers, causing damage to the property and otherwise behaving in disorderly and indecent manner. The findings of the Inquiry Officer were considered by the disciplinary authority who passed the order of dismissal against Respondent Nos. 2 to 6. Some other workmen were awarded minor punishment of stoppage of two increments or reduction to a lower post as they were held to be not the leaders of the group. The appeal filed by the respondents having failed, they raised an industrial dispute as aforesaid, which was referred to adjudication to the Labour Court.
4. The respondent-Labour Court in its impugned award held that the departmental enquiry was held in accordance with law and the respondents-workers were given full opportunity of participating therein. Their defence was not prejudiced in any manner. The enquiry was therefore held to be legal and valid. As regards charge of victimisation, the view of the Labour Court is that "the circumstances of this case do not show that the case was cooked for victimisation of the petitioners" (respondents in the writ petition). Inspite of it, the Labour Court held as under
"In view of my findings and discussions on issues and reasons recorded, I uphold the finding of the Enquiry Officer but I think from the surrounding circumstances of this case and the workers being the office bearers of the union have been awarded unreasonable punishment by way of dismissal and discharge. The disciplinary authority did not consider their past record. The circumstance under which the misconduct was committed by the petitioners does not warrant the extreme penalty of discharge or dismissal, especially when co-workers who took part in the same incident have been given/awarded lesser punishment by the respondent Management, It shows that arbitrary punishment has been awarded to the petitioners on account of their being office bearers of the Union and prejudice is writ large in awarding the punishment by way of terminating their services."
On the aforesaid reasoning, the punishment of dismissal was substituted by the punishment of stoppage of three increments with cumulative effect.
5. The submission of the petitioner is that the respondent Labour Court has mis-conducted himself in ordering the re-instatement and has violated all legal principles, well settled by the several decisions of the Supreme Court and this Court. It is, therefore, submitted that the impugned award deserves to be set aside. The learned Counsel for the respondents, however, supported the impugned award and submitted that Section 11-A of the Industrial Disputes Act confers jurisdiction on the Labour Court to substitute the penalty awarded by the management and hence the impugned award is legal and valid.
6. In the context of submissions aforesaid, the question requiring consideration of this Court is whether the discretion exercised by the respondent Labour Court is in accordance with law? It may at this stage be noticed that the respondents workmen have not challenged the findings of the Labour Court with regard to the domestic enquiry and hence the same must be deemed to have become final. This court will, therefore, assume that the domestic enquiry conducted by the petitioner-Management against respondent Nos. 2 to 6 was in accordance with law. It is also clear that the findings, that there was no victimisation of the respondents by the petitioner-management, is also not under challenge and hence the same must also be deemed to have become final. A perusal of the Enquiry Report would indicate that respondents had assaulted Shri Tarsem Lal, Manager (P and A), Shri K.V. Ku-rup, Deputy Manager (P and A), Sh. G.S. Anand (PAO), Shri Pilley, Manager (Fin), besides Shri S.K. Sharma, P.S. to General Manager. It is also clear that they damaged the furniture in the office of the General Manager, wireless set, telephones besides other properties. They have also been held guilty of causing wilful damage to the work in progress. Charge of preaching and inciting other workers to violence and threatening, abusing and assaulting superior officers has also been held to be proved. It is true that the respondents are important officers of the workers' Union but there is a finding that nothing whatsoever has been done by the petitioner that may amount to their victimisation. The victimisation has acquired special meaning in industrial law and means that an innocent worker is being punished because he has somehow displeased the employer either by being an active officer of a trade-union or otherwise. Yet another meaning of word 'victimisation' is where an employee is given punishment disproportionate to the proved misconduct simply because he has incurred the displeasure of the employer because of his trade-Union-activities. Fortunately, for the petitioner, there is an unchallenged findings of the respondent Labour Court that there is no element of victimisation of the respondents in the instant case. Even otherwise, the mere fact that the respondents are active office bearers of the workers' Union is not sufficient to hold that they have been victimised. In Bharat Iron Works v. Bhagubhai Balubhai Patel and Ors., 1976 Lab IC 4 (SC), it was held that the Tribunal will not readily accept a plea of victimisation as answer to a gross misconduct even when an employee, be he an active office bearer of the union, commits assault, and there is a reliable legal evidence to that effect. In such a case the employee found guilty, cannot be equated with a victim or a scapegoat and the plea of victimisation as defence will fall flat. It may also be noticed that an office-bearer of a Union does not get licence to engage in lawlessness and assault officers of the management, damage the property and bring the work of the establishment to a grinding halt.
7. Inspite of it, it is clear that Section 11-A of the Industrial Disputes Act permits a Labour Court to which an industrial dispute relating to dismissal of workmen has been referred for adjudication to consider whether the punishment imposed by the management is justified and if the finding be that the punishment was not justified, substitute the same with proper punishment even if the domestic enquiry was found to be in accordance with law. The Labour Court, however, is required to exercise this discretion judicially and in accordance with the recognised principles carefully examining the circumstances of each case. If the Labour Court exercises its discretion in disregard of the principles laid down by the Supreme Court and High Courts, it would be a case either of no exercise of jurisdiction or of one illegal exercise of jurisdiction. In Rails (India) Ltd. v. K. Natarajan (1977-I-LLJ-33)(Kar) and Jai Bahadur v. Motor Industries Co. Ltd. (1977) Lab 143, Karnataka High Court has held that the power of an industrial adjudicator under Section 11-A, to give any relief to the workman including reinstatement or to subject the order of reinstatement to any terms and conditions, can be exercised only when the order of dismissal or discharge is found to be unjustified or illegal, and not when it affirms the order of discharge. The Supreme Court in Hindustan Steel Ltd. v. A.K. Roy, (1970-I-LLJ-228), has held that the decision of the Labour Court will be amenable to judicial review and the reviewing court cannot content itself by simply saying that since the Tribunal has exercised its jurisdiction, it will not examine the circumstances of the case to ascertain whether or not such exercise has been made in accordance with well established principles. If it were to do so, it would be a refusal on its part to exercise its own jurisdiction. Inspite of it, it is clear that where the Labour Court has objectively assessed the over all position on a fair consideration of the material placed before it and came to the conclusion that the dismissal was wrongful and granted relief of reinstatement, the reviewing court will not interfere with the discretion of the Tribunal. The instant case is a case where the Labour Court has held that the dismissal was not illegal. Inspite of it, it has been held that the respondent Nos. 2 to 6 were entitled to relief of reinstatement. We have inspite of our serious efforts and questioning of the learned counsel for the respondents, not able to find an authority for the proposition that even in cases where order of dismissal has been passed in accordance with law and the charges against the workmen were, assault of officers and damaging the properties of the management, the penalty of dismissal was extreme or harsh. There are large number of cases of Supreme Court where inspite of the finding that the dismissal was illegal, reinstatement was refused. Assam Oil Co. Ltd. v. Its Workmen (1960-I-LLJ-587)(SC), is an important case of this type where the Supreme Court had refused reinstatement to the employee because he held a position of trust and confidence. In Doomur Dullung Tea Estate v. The Workmen, C.A. No. 516 of 1966 decided on October 26, 1967, the Supreme Court set aside the order of reinstatement only on the ground that the workmen were found guilty and convicted for violent misconduct by a criminal court. In Hindustan Steel Ltd. (supra) reinstatement was refused because the workmen was employed in the blast furnace which was a crucial part of the works. These cases would justify the conclusion that even when Labour Court came to the conclusion that order of dismissal was not passed in accordance with law, the normal relief of reinstatement could be refused. Learned Counsel for the petitioner has relied on a decision in Workmen of Bharat Fritz Werner (P) Ltd v. Bharat Fritz Werner (P) Ltd. and Anr., (1990-II-LLJ-226)(SC), to submit that the discretion vested in the Labour Court was not exercised in accordance with law. This was a case where misconduct found proved consisted of threatening the highest executive with dire consequences, wrongfully confining him in his room and compelling him to withdraw a notice. The Tribunal had held that the enquiry held by the Management was not fair and proper. The management was thereafter directed to produce the evidence on merits, but in the meantime the Tribunal awarded compensation by way of interim relief. The matter therefore went to the High Court which held that the enquiry was not in accordance with law. Thereafter considering the matter on merits, the High Court held that it was not a case of reinstatement. The workmen were awarded compensation in lieu of loss of employment. That is how the matter was taken to the Supreme Court by the workmen and the Supreme Court held that the settled position in law is that the Industrial Tribunal has jurisdiction to direct the reinstatement in appropriate cases. In a case of wrongful dismissal, the normal rule adopted is to order reinstatement. There are, however, exceptions to this rule and even when it is found that the dismissal was wrongful, the workmen may be denied reinstatement if the same was not expedient. The Supreme Court also held that where the misconduct found proved against certain workmen involved threatening the highest executive with dire consequences, wrongfully confining him in his room and compelling him to withdraw the notice, it would not be desirable and expedient to direct reinstatement of the workmen. This case is, therefore, the authority for the proposition that even a case where the departmental enquiry has been held to be illegal, reinstatement should not be granted if the misconduct consists of aforesaid facts. There is unfortunately nothing in the order of the respondent Labour Court to even indicate that the aforesaid legal principles have been kept in mind.
8. Since the misconduct in the instant case involve physical assault of almost all the officers of the Factory and mine we asked the learned Counsel of the respondents workmen to indicate any one misconduct where the dismissal would be appropriate in such a case. The learned Counsel has not been able to cite any such misconduct. Indeed, there could not be any more serious misconduct than the misconduct found proved in the instant case. May be that the employees are entitled to agitate against financial irregularities allegedly committed by the petitioner management, they are however, not entitled to close the factory by illegally blowing the siren, creating a violent mob and engage in a wide spread physical assault of almost all officers. It is our considered view that there can be no other misconduct more serious than the one in the present case. It is also our considered view that there is no other proper and justified misconduct deserving the extreme penalty of punishment. Under the circumstances, it is our considered view that the discretion vested in the respondent Labour Court has not been exercised in accordance with law and, therefore, the impugned award is vitiated.
9. The learned Counsel for the respondents, however, made a passionate appeal to this Court to permit these respondents to improve, which plea, without doubt, deserves sympathetic consideration. But this Court has accountability of its own. It has its deep and sincere commitment to the rule of law. Under the circumstances our sympathy, by itself would not be decisive of the matter. The rule of law must prevail.
10. The petition consequently succeeds and is allowed. The impugned award in so far as it directs reinstatement of respondent Nos. 2 to 6 is quashed. The reference made to the respondent Labour Court is answered by holding that the penalty of dismissal imposed on the respondent workmen was legal and justified and hence they are not entitled to any relief. No costs.