Calcutta High Court
Statesman Limited vs Second Industrial Tribunal And Ors. on 18 May, 2006
Equivalent citations: 2007(1)CHN229
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose, Tapan Kumar Dutt
JUDGMENT Pinaki Chandra Ghose, J.
1. This appeal is directed against an order dated 10th March, 2003 passed by this Hon'ble First Court whereby His Lordship was pleased to dismiss the writ petition challenging an award by the learned Tribunal.
2. Facts of the case briefly are as follows:
On 8th March, 1984 a printing machine was stopped while printing the dak edition of the 'Statesman' at about 4.20 p.m. Respondent No. 3 herein, an electrician, on being asked to rectify the fault, refused to do so since he was to get off the work at 5.00 p.m. A chargesheet was drawn on such misconduct against the respondent No. 3 on 10th March, 1984, service whereof stated to be avoided by the respondent No. 3. Thereafter, on 11th February, 1985, he was dismissed from service of the company. An industrial dispute was raised by him and subsequent thereto, the matter was referred before the Second Industrial Tribunal by the respondent No. 3 (the workman) under Section 10(2A) of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act).
3. On 8th April, 1993 the said learned Tribunal in exercise of its power under Section 11A of the said Act, directed the company to reinstate the workman with 75% back wages w.e.f. the date of dismissal i.e. from 11th February, 1985.
4. The writ petition was filed by the appellant herein from the said award published on 8th April, 1993 and on 10th March, 2003 the Hon'ble First Court was pleased to hold that the order passed by learned Tribunal cannot be held to be unjust and/or illegal and further does not suffer from any illegality or irregularity, hence dismissed. Subsequent thereto, at the time of interim stage on 25th June, 2003, it was directed by the Hon'ble Division Bench staying the operation of the said order dated 10th March, 2003 directed the appellant to pay a sum of Rs. 2,000/- towards the wages month by month to the said workman.
5. The case of the appellant that although the learned Tribunal upheld the validity of the domestic enquiry and also held that the delinquent workman was guilty of misconduct and that he had made an admission to that effect. But the learned Tribunal yet set aside the order of dismissal on the ground that the same was grossly disproportionate to the misconduct alleged.
6. It is submitted that the ground for which the learned Tribunal came to the conclusion was that the past records of the delinquent workman do not contain any instance of the kind of misconduct that he had committed in the instant case. It is further the case of the appellant that the delinquent workman was duly chargesheeted and the domestic enquiry was held and after he was found guilty of misconduct at the said enquiry, the order of dismissal was passed against him.
7. Mr. Abhijit Chatterjee, learned Senior Advocate appearing in support of this appeal drew our attention to the award published by the learned Tribunal and submitted that the company adduced evidence both oral and documentary before the learned Tribunal in support of their case and also exhibited the documents (being Exhibit Nos. 1 to 6) and the workman did not adduce either oral or documentary evidence before the learned Tribunal. He further contended that from the award itself, it would be evident that the learned Tribunal held that the findings of the Enquiry Officer were not perverse (page 111 of the paper book). Learned Tribunal also held that the charge of misconduct against the deliquent workman stood proved (appearing at page 119 of the paper book).
8. He further drew our attention to the observation made in the award dated 21st June, 1993 (appearing at page 117 of the paper book) which is reproduced hereunder:
The workman in his statement made at the enquiry admitted that on 8.3.1984 at about 4.30 p.m. he was asked by the electrical supervisor to rectify the defect in the detector of the S.F.II rotary machine and they went to the site of the said machine. He admitted further that ultimately without doing the job he left the place and also left his offence sometimes after 5 p.m. and alleged that he had told the said electrician supervisor and also the production manager that as his duty hour was ending at 5 p.m. he would go home.
9. He also drew our attention to the said award at page 119 of the paper book which is also reproduced hereunder:
As already stated, nothing has been provided that on previous occasion the workman concerned had restored to such act or that he had been guilty of any misconduct by way of disobeying the order of the superior officer so as to come within the purview of the standing orders.
In the facts and circumstances of the case I must say that the punishment of dismissal which has been inflicted upon the workman in the instant case is disproportionately high.
10. He submitted that in these circumstances the power and jurisdiction of the learned Tribunal to interfere with a finding arrived at a domestic enquiry has to be exercised in proper and relevant materials and the power of interference is very limited. According to him, it is also well-settled that the High Court in its jurisdiction under Article 226 of the Constitution of India can and should correct the exercise of discretion by the learned Tribunal under Section 11A of the said Act, if such exercise of power is perverse or manifestly erroneous and he relied upon the decisions , M.P. Electricity Board v. Jagdieh Chandra Sharma , Mahindra and Mahindra Ltd. v. N.B. Narawade and , Bharat Heavy Electricals Ltd. v. M. Chandrasekhar Reddy and Ors. in support of his such contention.
11. He also relied upon a decision , South Kanara Central Co-operative Wholesale Stores Limited and Ors. v. Secretary, Sahakary Noukarara Sangha and Ors. where the Hon'ble Supreme Court held that two important considerations would deter the learned Tribunal from interfering with an order passed in a domestic enquiry are firstly the need for maintaining discipline in an organization which would mean that all acts of insubordination have to be dealt with severely and secondly, loss of confidence of the employer in the workman concerned. The same considerations would justify the High Court setting aside an order of the learned Tribunal passed under Section 11A of the said Act interfering with an order passed in a domestic enquiry.
12. It is his case that the minconduct of the delinquent workman stood proved and if any effect is given to the award so published by the learned Tribunal, it would encourage indiscipline in the organization because similarly placed employees would get encouraged to flout the orders of the superiors on specious pleas. It is importanct as to whether misconduct of the delinquent workman really resulted in disruption in the publication of the newspaper on the following day. What is important is that the delinquent workman by his act of insubordination exposed the employer to a great risk. There is also a question of loss of confidence of the employer in such workman. The entire case has to be viewed in the perspective of the fact that in a newspaper industry, disruption in publication of the morning newspaper is a matter of serious concern which would result in total loss of goodwill and reputation from the point of view of the newspaper management.
13. Mr. Arunava Ghosh, learned Advocate appearing on behalf of the redpondent No. 3 workman, submitted that the workman was not ready to perform overtime work. He denied the charge levelled against him and ultimately the domestic enquiry was held and the workman was found guilty. Workman due to ignorance did not lead evidence before the enquiry. Hence, workman was dismissed from service by a letter dated 11th February, 1985.
14. He further submitted that during the long tenure of service of 10 years with the company, there were no allegations against the workman. It is true that learned Tribunal found that the domestic enquiry was to be proper, fair and therefore valid. It is also a fact that the workman before the learned Tribunal did not lead any evidence with regard to validity of the domestic enquiry. After holding the same learned Tribunal proceeded under Section 11A of the said Act which gives power to the Industrial Tribunal to give appropriate relief in cases of discharge and dismissal of a workman in case it is satisfied that the order of discharge and dismissal was not justified and learned Tribunal thought it fit to grant him a lesser punishment instead of dismissal and thereafter, learned Tribunal directed the company to reinstate the workman with a cut off 25% of the back wages from 11th February, 1985. Company was further directed to pay 75% of the back wages to the workman forthwith.
15. Mr. Ghosh further submitted that in the decision reported in 2000 (7) SCC 517 (supra), the Hon'ble Supreme Court had confined the ratio of the said Judgment in cases of proved misappropriation only and not to all cases where Domestic Enquiries were found to be valid. He further submitted that the learned Tribunal had power to exercise its discretion under Section 11A of the said Act. If the order of dismissal is found to be bad for the reasons of violation of natural justice in the domestic enquiry, question of proceeding under Section 11A of the said Act does not arise. Section 11A of the said Act gives power to learned Tribunal to interfere with the order of punishment of dismissal and discharge only when the same been validly passed by the employer. If the order itself is invalid, there is no question of proceeding under Section 11A.
16. It is submitted that the Hon'ble First Court held that the decision of the learned Tribunal was based on proper assessment of the materials on record and as such, Hon'ble High Court was not entitled to examine the validity and legality of such satisfaction of the learned Tribunal. The Hon'ble First Court also observed that the High Court should be reluctant to interfere with the award of the Labour Court unless it is contrary to the provisions of law. No documents and/or material evidence produced to show that the discretion exercised by the learned Tribunal was arbitrary, illegal and/or wrongful.
17. Mr. Ghosh further contended that the decisions reported in 2005 (2) SCC 481 (supra), 2005 (3) SCC 401 supra and 2005 (3) SCC 254 (supra) have no application in the facts and circumstances of this case and according to him, in the said decisions the Hon'ble Supreme Court decided the matter concerning loss of confedence due to misappropriation by the workman and the ratio of the said two decisions were that in a case of proved misconduct with regard to misappropriation of fund leading to loss of confidence under Section 11A it was proper to reinstate such workman in service. The said fact cannot be applicable in the facts and circumstances of this case.
18. He further submitted that the other case which has been relied upon by the Senior Advocate on behalf of the appellant in 2005 (3) SCC 401 (supra), relates to physical assault on the employer and/or superior and on the given facts the Hon'ble Supreme Court held that the employee could not have been reinstated in service. According to him, learned Tribunal rightly came to the conclusion in the facts and circumstances of this case since dismissal was too harsh and the employee was entitled to lesser punishment awarded by the company. In the facts and circumstances of this case if the learned Tribunal does not interfere with the quantum of punishment, then the purpose of introduction of Section 11A in the said Act would become meaningless.
19. He further submitted that the reduction in back wages after setting aside the order of dismissal is itself a punishment. He further submitted that the company has already paid an amount payable under Sections 15(2)(9b) and 17(b) of the said Act and as such company will not have to pay the entire amount of 75% back wages after adjusting the money already been paid. In these circumstances, he submitted that the appeal should be dismissed.
20. In reply, Mr. Chatterjee pointed out that it has been submitted on behalf of the workman that the facts involved in the case cited on behalf of the appellant, were different. He submitted that while the facts of the two cases can never be the same, the enunciation of law and principle made by the Apex Court would be binding and would govern the situation although the facts may be different from the facts of the cases relied upon. He submitted that what has been relied upon by the appellant are the observations on principle and not observations based on peculiar facts of a particular case.
21. He further submitted that the workman concerned refused to attend to the defect because of some illness in his family for which he wanted to go home early which has been submitted by learned Advocate on behalf of the delinquent workman, but the said submission was not supported by any evidence neither in writing nor oral before the authorities. On the contrary, workman replied that he had some domestic business and as such he would not be able to do overtime work and in his statement the workman admitted the guilt (appearing at page 117 of the paper book) and admitted further that he left the office without doing the job. In the award learned Tribunal further held that in the statement before the Enquiry Officer it has not been alleged by the workman that he wanted to go home as he had some domestic business in his house on the said date and as such there was no occasion on the part of the Enquiry Officer to consider whether the refusal to perform the job on that day by the workman was justified or not. On the contrary, the Enquiry Officer found in evidence that unless the detected fault could be rectified immediately there would have been disruption of work and the same machine would also have been damaged and the Enquiry Officer held that the workman's witness conceded during the cross-examination that there was possibility of disruption in publication of the newspaper. Therefore, from the above facts, the appeal should be allowed and the order passed by the Hon'ble First Court should be set aside.
22. After hearing the learned Counsel for the parties and after scrutinizing the facts placed before us we have found admittedly that the workman admitted the guilt and further the learned Tribunal also came to the conclusion that the domestic enquiry which was conducted against the workman was held to be valid and proper. It was also held that the findings of the Enquiry Officer were not perverse as contended by the learned Advocate for the workman which are reproduced hereunder:
From the order sheet dated 7.8.89 passed by my learned predecessor in office it is seen that the domestic enquiry which was conducted against the workman was held to be valid and proper. It was also held by the learned Tribunal that the findings of the E.O. were not perverse as contended by the learned Advocate for the workman.
23. It also appears that the learned Tribunal also came to the conclusion and held that the company has been proved the charge of misconduct as alleged against the workman. Therefore, the only question arose whether the learned Tribunal after applying Section 11A of the said Act can direct the reinstatement of the delinquent workman in the given facts.
24. We have also considered the decisions cited before us by the learned Counsel.
In M.P. Electricity Board v. Jagdish Chandra Sharma (supra) it is true that the Hon'ble Supreme Court held that the punishment of termination awarded for hitting and injuring a superior officer supervising the work of the employee, with no extenuating circumstances established, it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate. The Hon'ble Supreme Court also held that this clearly amounted to breach of discipline in the organization. Discipline at the workplace 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.
25. The Hon'ble Supreme Court in Mahindra and Mahindra Ltd. v. N.B. Narawade (supra) summed up the position which is reproduced hereunder:
20. 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 judgements 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 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.
26. In Bharat Heavy Electricals Ltd. v. M. Chandrasekhar Reddy and Ors. (supra), where the Hon'ble Supreme Court came to the conclusion that without giving any cogent reasons for not accepting the view of the employer when the learned Tribunal is accepting that a proper enquiry is conducted by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it has now power to differ from the conclusions arrived at by the management, will have to give very cogent reasons for not accepting the view of the employer and further the learned Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11A of the said Act only when it is satisfied that the punishment imposed by the management is highly, disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision and without such reasons the Court held in the given facts as stated in the said decision set aside the order of reinstatement of the delinquent workman and the order of dismissal passed by the company was upheld.
27. In Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane (supra) the Hon'ble Supreme Court held that when an employee is found guilty of misappropriating a corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such case there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefor with the quantum of punishment. It is further held by the Hon'ble Supreme Court in the said decision that when a domestic Tribunal based on evidence comes to a particular conclusion, normally it is not open to the Appellate Tribunal and Courts to substitute their subjective opinion in place of the one arrived at by the domestic Tribunal. Domestic Tribunal accepted the evidence and found the respondent's guilt and the Court in such cases coming to the question of quantum of punishment, should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment.
28. In the instant case, it appears that the workman, the respondent No. 3 herein, accepted the guilt and furthermore reasons by which the Labour Court reduced the penalty, are not sufficient for the purpose of reinstating the workman by using its discretionary power granted under Section HA of the said Act. The fact that the misconduct now alleged is the first misconduct again is no ground to condone the misconduct. On the facts of this case, it appears that as has been pointed out by the learned senior Advocate appearing on behalf of the appellant, that delinquent workman by his act of insubordination exposed the employer to a great risk. Thus also there is a question of loss of confidence of the employer in such workman. The entire case has to be viewd in the perspective of the fact that in a newspaper industry, disruption in publication of the morning newspaper is a matter of serious concern which would result in total loss of goodwill and reputation from the point of view of the newspaper management.
29. We have also considered the award published by the learned Tribunal and we have found that the learned Tribunal without giving any cogent reasons only held that punishment of dismissal is disproportionately high, too harsh and in support of such decision and/or application of Section 11A of the said Act, in our opinion, learned Tribunal has failed to give any reason whatsoever.
30. In South Kanara Central Co-operative Wholesale Stores Ltd. and Ors. v. Secretary, Sahakary Naukarara Sangha and Ors. (supra) it has also been emphasized that in exercise of jurisdiction and/or discretion under Section 11A of the said Act, two important considerations which deter the learned Tribunal from interfering with an order passed in a domestic enquiry are the need for maintaining discipline in an organization which would mean that all acts of insubordination have to be dealt with severely and the loss of confidence of the employer in the workman concerned. The aforesaid considerations and/or the principles as laid down by the Hon'ble Supreme Court would justify the Hon'ble High Court to set aside an order of the learned Tribunal passed under Section 11A of the said Act interfering with an order so passed in a domestic enquiry.
31. After applying such tests in the facts and circumstances of this case, we find that the order so passed by the learned Tribunal cannot be sustainable in law. Hence we set aside the said award.
32. For the reasons stated hereinabove the appeal is allowed and the order of the Hon'ble First Court is set aside.
Tapan Kumar Dutt, J.
33. I agree.