Patna High Court
The Workmen Of Usha Martin Black Co. Ltd. vs Presiding Officer, Labour Court Ranchi ... on 4 March, 1991
Equivalent citations: 1991(39)BLJR1340
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This writ application is directed against an award dated 11th August, 1986 passed by the Presiding Officer, Labour Court Ranchi (respondent No. 1) in Reference Case No. 2/82 whereby and where under an industrial dispute referred to the said authority for its adjudication was answered in favour of the respondent No. 2 and against petitioner.
2. The fact of the matter lies in a very narrow compass:-
Admittedly, the concerned workmen at all material times were employed by Usha Martin Black Limited which has a factory at Tatisilwai. On 9-3-1991, four concerned workmen received charge-sheets dated 5-34981, 6-3-1981 and 7-3-1981which are contained in Annexures 2, 2-A and 2-B to the writ application wherein it was inter alia alleged that they on 5th March, 1981 at about 4 p.m. along with some other workmen struck work and also incited and coerced other workmen of Machine Shop to strike work with the result that the workmen in Machine Shop stopped working from 3.00 p.m. The concerned workmen gave a reply to the Management which haying not been found satisfactory, a disciplinary proceeding was initiated against them. One Sri Madan Gopal, Advocate, was appointed as an enquiry officer. On 27-4-1991 and on subsequent dates, the Management's witnesses were examined, and cross-examined. A report was submitted by the Enquiry Officer and the Management, thereafter, passed orders dismissing the concerned workmen from services. According to the Management, the charge leveled as against the workmen were of very grave and serious nature and warranted extreme punishment.
3. On the other hand, the workmen denied the charges and alleged that they had all along been working to the entire satisfaction of the management and, in fact, they neither stopped work on that date nor incited others to do so. It was further contended that the venue of the enquiry was far away from the place of incident, but despite requests made by the concerned workmen to the Management to hold the enquiry in the factory premises, the same was not acceded to.
4. An industrial dispute was raised in relation to the aforementioned action on the part of the Management in terminating the services of four concerned workmen and eventually by a notification dated 19-3-1982, the Government of Bihar in exercise of its power conferred upon it under Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter to be referred to and called for the sake of brevity as the said Act) referred the following dispute for adjudication of the respondent No. 1:-
Whether the dismissal of Sarvshri Satyeshwar Pal, Arjun Sharma, Fankaj Kumar Chakarborty and Manoranjan Sarkar is justified? If not, whether they are entitled to reinstatement or/and any other relief ?
5. Before the respondent No. 1, the Management appears to have filed an application contending therein that legality or validity of the domestic enquiry be decided as a preliminary issue and in the event the said issue was decided against the Management it may be permitted to adduce fresh evidence before the respondent No. 1. The petitioner, however, contended that the purported order of termination dated 26-10-1981 is in effect and substance an order of retrenchment and, thus, the Management should not be permitted to adduce evidence before the Labour Court.
6. By an order dated 5-10-1983, the said application of the Management was allowed, but it was observed that the Union shall always be at liberty to prove its contention that the 'termination amounted to retrenchment'.
The said order dated 5-10-1983 is contained in Annexure-8 to the supplementary affidavit filed on behalf of the petitioner. Thereafter 12 witnesses were examined on behalf of the Management. The petitioner Union also examined several witnesses. Respondet No. 1 in his award dated 11-8-1936 on the basis of the evidence adduced by the Management before it came to the conclusion that the management has been able to prove its case as against the concerned workmen. It further negatived the plea of victimization raised on behalf of the workmen. Respondent No. 1, thereafter, considered the matter of quantum of punishment to be inflicted upon the concerned workmen and held that in view of the serious charge of misconduct proved as against the Workmen, and there being no extenuating circumstances, he did not find any reason to interfere with the punishment awarded against the workmen.
7. Mr. T.K. Das, learned Counsel appearing for the petitioner firstly submitted that in view of the definition of 'retrenchment' as contained in Section 2(oo) of the said Act, the order of termination of services dated 26-10-1981 passed by the Management as against the concerned workmen would come within the purview thereof in as much as no domestic enquiry was held in accordance with the certified standing order.
According to the learned Counsel, all termination would amount to retrenchment subject to the exceptions referred to in Section 2(oo) of the Act which inter alia includes 'punishment' inflicted by way of disciplinary action.
8. Developing his arguments, Dr. Das submitted that unless an until a disciplinary action is taken, the question of infliction of any punishment by way of disciplinary action does not arise and in that view of the matter, unless a legal and valid departmental proceeding had been held, the question of inflicting any punishment upon a workman by way of disciplinary action did not arise. Learned Counsel, therefore, contended that in this view of the matter, the order of termination must be held to be wholly illegal and without jurisdiction inasmuch as before passing the said order, the provisions of Section 25-F of the said Act was not complied with. The learned Counsel, in this connection relied upon Anand Cinema of Maheshwari and Barnard v. Mohan Tiwari reported in 49 FIR 357 : 1986 Lab and IC 336.
9. Learned Counsel further submitted that before a punishment by way of discharge or dismissal is inflicted upon a workman, the disciplinary proceeding must be completed. In this connection, learned Counsel relied upon a decision of the Supreme Court in the Imperial Tobacco Co. of India Ltd. v. Its Workmen and L. Robert D'Shouza v. The Executive Engineer, as reported in AIR 1982 SO 854.
10. Mr. Das further submitted that from a perusal of the decision of the Supreme Court in Indian Iron and Steel Co. Ltd. and Anr. v. Their Workmen AIR 1958 SC 130, it would appear that therein the Supreme Court had been dealing with tin; limited power of the Labour Court and/or Industrial Tribunal to interfere with the findings of the domestic enquiry and only in that view of the matter, it was held that the Management, in the event a disciplinary proceeding is held to be vitiated in law, may be permitted to adduce fresh evidence before the Labour Court and/or Industrial Tribunal, as the case may be. According to Mr. Das, Section 11-A of the Act is a procedural provision and as the same was enacted only for the purpose of meeting the exigencies arising out of Indian Iron's case (supra), the Management cannot be permitted to adduce fresh evidence in the event it is held that the domestic enquiry was invalid in law.
It was further contended by Mr. Das that in Workmen of Firestone Tyre and Rubber Co. v. The Management and Ors. AIR 1473 SC 1227, the Supreme Court did not take into consideration the effect and purport of Section 2(oo) of the Act. According to the learned Counsel if it is held that in terms of Section 2(oo) of the said Act, if a punishment is not inflicted upon conclusion of a disciplinary proceeding in accordance with the provisions of the Certified Standing Order, the same would amount to a retrenchment and thus the question of giving a fresh opportunity to the employer to prove the charges by adducing evidence for the first time before the Industrial Tribunal or the Labour Court would not arise. Learned Counsel in this connection as noticed hereinbefore, has relied upon Anand Cinema of Maheshwari and Barnard, v. Mohan Tiwari 1986 Labour and Industrial Cases 336.
11. Learned Counsel next contended that even on merits, respondent No. 1 should not have passed the impugned award inasmuch as M.W. 10 and M.W. 11 in their depositions categorically stated that the workmen who were allegedly stopped from performing their job by the concerned workmen not only completed their shift duties, but, in fact, did some overtime work also.
12. Learned Counsel further submitted that in this case no finding of fact has been arrived at by the respondent No. 1 that the concerned workmen participated in an illegal strike. According to the learned Counsel, participation by the workmen in an illegal strike being as sine que non for holding as to whether the concerned workman committed a misconduct within the purview of the certified Standing Order, a finding to that effect was a must. Learned Counsel contended that from a perusal of the impugned award, it would appear that only a finding has been arrived at to the. affect that the . concerned workman resorted to a strike and not to an illegal strike. Learned Counsel, contended that the misconduct contained in the certified Standing Order is exhaustive.
In this connection relience has been placed on Shri Rasiklal Vaghajtbhai Patel v. Ahmadabad Municipal Corporation 1985 (50) FLR 201 and Workmen of Hindustan Steel Ltd. v. Hindustan Steel Ltd. reported in 1985 (50) FLR 147.
Learned Counsel further sumbitted that the respondent No. 1 has also not taken into consideration, the true scope and effect of Section 11-A of the Industrial Disputes Act and has further not taken into consideration the relevant facts.
13. It was further submitted that respondent No. 1 did not at all consider" the scope and object of Section 11-A of the said Act insofar as it failed to consider the nature and consequence of misconduct upon industrial peace and harmony as well as the relationship between that workman and the Management and further failed to take into consideration that punishment of dismissal from service is not commensurate with the charges of misconduct of the concerned workmen. The learned Counsel, relied upon R.M. Parmar v. Gujarat Electricity Board, Baroda reported in 1982 Lab IC 1031 and Alliance mills (Lessees) P. Ltd. v. State of Bengal and Ors. (1990) 61 FIR 218 it was further submitted that the respondent No. 1 misdirected himself as he fatted to consider the material facts. It was also contended that the impugned award is perverse.
14. Learned Counsel further submitted that in any event learned labour court ought to have considered the quantum of punishment in the light of the decisions of the Supreme Court in 1980 Vol. 1 LLJ 137, and Deshraj Gupta v. Industrial Tribunal, reported in 1990 Labour and Industrial Cases 1892.
15. Dr. Debi Pal learned Counsel appearing on behalf of the Management on the other hand, submitted that in several decisions, the Supreme Court of India has reiterated that by reason of insertion of Section 11-A of the said Act, the position in law as it stood prior to Industrial Disputes (Amendment) Act, 1971 was not altered whereby and where under the Management was held to be entitled to adduce independent evidence before the Labour Court or the Industrial Tribunal as the case may be, in the event in a preliminary issue it is held that the Management did not pass an order of termination without holding any domestic enquiry or if the domestic inquiry was found to be illegal as invalid.
Learned Counsel in this connection has strongly relies upon the well known decision of the Supreme Court in workmen of Firestone Tyre and Rubber Co. v. Management and Ors. AIR 1913 SC 1227 and a recent Full Bench decision of this Court in Indian Aluminium Co. Ltd. v. Presiding Officer, Labour Court 1990 Vol. 2 PLJR 797.
16. Learned Counsel further submitted that the concerned workmen having been charge-sheeted and having been found guilty is a departmental proceedings, the action taken as against the concerned workmen must be held to have been done by way of a disciplinary action within the meaning of provision of Section 2(oo) of the said Act. Learned Counsel in this connection has relied upon a recent Supreme Court decision in State Bank of India v. Workmen of State Bank of India 1991 Vol. 1 SCC 13.
Learned Counsel further submitted that this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India should not normally interfere with the quantum of punishment as Section 11-A confers a discretionary power upon the Tribunal. Learned Counsel in this connection has relied upon a decision of mine reported in Shabir Ahmad Khan v. P.O. Labour Court, Hanchi 1990 Current Labour Reports 708; 1990 Labour and Industrial Cases 1447.
17. Dr. Pal further brought to my notice the order dated 28-4-1987 whereby a Division Bench of this Court at the time of admission of this writ application directed that this application would be heard only on the question of Section 11-A of the said Act. Learned Counsel, therefore, contended that the counsel for the petitioner should not be permitted to raise any other question.
18. Mr. T.K. Das, in reply, submitted that this Court despite the said order can allow the petitioner to raise other questions.
In this connection reliance was placed on Eastern Railway Employees' Congress v. General Manager Eastern Ry. .
19. In view at the contentions of the parties as noticed hereinbefore, the following questions would arise for consideration in this application:-
A. Whether in view of the provisions contained in Section 2(oo) of, the said Act, the termination of the services of, the petitioners would amount to retrenchment as the domestic enquiry as against them was not completed?
B. Whether in view of the fact that the domestic enquiry as against the concerned workmen was not completed by the Management, the respondent No. 1 acted-illegally and without jurisdiction in allowing it to adduce evidence in order to prove the charge of misconduct against the concerned workmen?
C. Whether respondent No. 1 misdirected itself in passing the impugned award insofar as it failed to take into consideration the relevant facts and/or the said award is otherwise perverse?
D. Whether the respondent No. 1 failed to apply his judicial mind in considering as to whether the punishment awarded by the Management was commensurate with the charges of misconduct as envisaged in proving to Section 11-A of the said Act?
E. Whether in view of the order of this Court dated 28-4-1987, the petitioner can be permitted to raise contentions other than the question of Section 11-A of the said Act?
20. Re. question Nos. (A) and (B):
Section 2(oo) of the said Act reads as follows:
Retrenchment' means the termination by the employer of the service of a workmen for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action, but does not Include:
(a) voluntary retirement of the workmen; or
(b) retirement of the workmen on reaching the age of superannuation of the contract of employment between the employer and the workmen concerned contains a stipulation in that behalf; or
(c) termination of the service of a workmen on the ground of continued ill-health.
(underlining is mine)
21. From a bare perusal of the said provision, it would be evident that in the event punishment has been inflicted by the Management by way of disciplinary action, the same would not come within the purview of the term 'retrenchment'.
22. Section 11-A reads as follows:-
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 workmen 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, be its award, set aside the order of discharge or dismissal and direct reinstatement of the workmen on such terms and conditions, if any, as it thinks fit, or give such relief to the workmen including the award of any lesser punishment in lieu of discharge or other dismissal as the circumstances of the case may 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.
The said provision was inserted by Industrial Disputes (Amendment) Act, 1971, Prior to the said Amendment Act, the jurisdiction of the Industrial Tribunal or the Labour Court were restricted one. The statement of objects and reasons for insertion of the said provision reads as follows:-
In Indian Iron and Steel Co. limited and Anr. v. Their Workmen 1958 ILLJ 260, the Supreme Court, while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the services of a workmen, has observed that in oases of dismissal or misconduct the Tribunal does not act as a court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimization, unfair labour practice etc. on the part of the management.
(2) The International Labour Organization, in its recommendation (No. 11) concerning termination of employment at the initiative of the employer' adopted in June, 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination, among others, to a natural body such as an arbitrator, a court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and the other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organization has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned, unless reinstated with unpaid wages should be paid adequate compensation or afforded some other relief.
(3) In accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power, in cases wherever necessary, to set aside the order of discharge or dismissal and direct reinstatement of the workmen 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 require. For this purpose, a new Section 11-A is proposed to be inserted in the Industrial Disputes Act, 1947.
23. In the workmen of Firestone Tyre and Rubber Co. of India (P) Ltd. v. The Management and Ors. , the Supreme Court held that by insertion of Section 11-A in the Act, the entire law as laid down by the various of the Supreme Court had not been altered and that there was no indication therein that the rights of the parties recognized by the Supreme Court in its various decision in the matter of industrial adjudication relating to disciplinary action taken by the employer had been taken away.
24. It was further held:
The provision specifies matters, the Tribunal shall take into account as also matters which it shall not. The expression 'materials on record'. occurring in the proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other band the materials on record' in the proviso must be held to refer to materials on record before the Tribunal. They take in:-
(1) the evidence taken by the management at the enquiry and the proceedings of the enquiry; or (2) the above evidence and in addition any further evidence led before the Tribunal; or (3) evidence placed before the Tribunal for the first time on support of the action taken by an employer as well as the evidence adduced by the workmen contra. The above items by and large, should be considered to be the 'materials on record' as specified in the proviso. We are not inclined to limit that expression as meaning only that material that has been placed in a domestic enquiry.
25. This Court in Indian Aluminium Co. Ltd. v. Presiding Officer reported in 1990 Vol. 2 PLJR 797 observed as follows:-
It would thus be clear that Section 11-A was not inserted in the Act to limit the jurisdiction of the Tribunal which it possessed by virtue of the law laid down by the Supreme Court but it was inserted to confer power on the Tribunal to reappraise evidence adduced in the domestic enquiry and to grant appropriate relief to workmen, powers which the Tribunal did not possess earlier. In the circumstances the question for consideration is how Section 11-A of the Act should be construed.
26. It is, therefore, clear that by reason of insertion of the aforementioned provision, the power of the Labour Court or the Industrial Tribunal, as the ease may be, has been widened inasmuch as, prior thereto the jurisdiction of the Tribunals hearing a reference did not extend to reappraisal of evidence in the domestic enquiry like an appellate authority.
27. In M/s. Indian Aluminium Co. Ltd., (supra) it was held:-
As has been indicated by the Supreme Court in the Fire Stone's case the various decisions following the same, that it would be open to the employer to make a prayer before the Labour Court or the Industrial Tribunal, as the case may be, that the legality, validity or otherwise of the domestic enquiry should be decided by way of preliminary issue and in the event if it be held that the said domestic enquiry is found to be vitiated by reason of being illegal or invalid for any reason whatsoever, the employer may pray for adducing fresh evidence before the Labour Court or the Tribunal to prove the charges of misconduct against the concerned workmen.
In such a situation, the concerned workmen also lead evidence contra.
However, the workmen can bring any evidence an record to show at the time of hearing of the preliminary issue, if decided to be framed and disposed of on the prayer of the employer or if otherwise all the issues are to be determined together, as to enable him to show that for any reason whatsoever the domestic enquiry was vitiated in law and/or the order of dismissal or discharge is other wise, illegal, invalid or unjust.
It was further observed:-
Evidently thus the Parliament had no intention to curtail the power of Industrial or Labour Court; as the case may be, which it had prior to insertion of Section 11-A of the Industrial Disputes Act. Thus, in my opinion in the instant case, the Parliament by inserting Section 11-A of the Act, has remedied the then existing unsatisfactory states of affairs. See (1975) 1 All ER page 810, at 818, which has been referred to the Supreme Court in Goodyear India Ltd. v. State of Haryana, reported in 1989 (4) JT 229 : 1990 (2) SCC 72 at page 85. Section 11-A of the Act has, thus, to be construed in this backdrop. In this view of the matter, the proviso which seeks to restrict the power conferred upon the Industrial Tribunal or the Labour Court as the case may be, in terms of Section 11-A of the Act must be read in the context of the said provision only and the restrictions imposed by the proviso to Section 11-A cannot be extended to any other power of the Industrial Tribunal or the Labour Court as the case may be Section 11-A read with its proviso, if- thus construed, would not only be in consonance with the intent and object of the Act but also would be In consonance with the principles of interpretation of statutes.
28. From a perusal of the order of termination dated 26-10-1981 it is evident that the service, of the concerned workmen were terminated by inflicting a punishment of dismissal of service by way of disciplinary action.
29. The question whether a. particular termination is by way of retrenchment or is by way of punishment would depead upon the facts and circumstances of each. case. In Laehman Das and Anr. v. Indian Express Newspapers 1977 LIC 823, a Division Bench of the Delhi High Court held that as the concerned workmen were victimized because of their union activities, the order of termination of service was held to be as a measure of punishment by way of disciplinary action. A similar view has been taken in New India Ansurance Co. v. Dalbir Singh Khera, reported in 1982 Vol. 1 LLJ39.
30. The Supreme Court recently in State Bank of India v. Workmen of State Bank of India upon interpreting and considering paragraphs 521 and 522 of the Shashtri award hold:-
The result of our aforesaid discussion is that the termination of -service of the employee in the present case under paragraph 521(10)(o) of the award is as a result of the disciplinary: proceedings and is punitive. It is, therefore, not 'retrenchment' within the meaning of Section 2(oo) of the. Act. Hence, there was no question of complying with the provisions of Section 25-F of the Act. The decision of the High Court, has, therefore, to be set aside.
31. Yet recently in J.K. Cotton Spinning and Weaving Mills Co. v. State of U.P. (1991) 71 FLR 12 at page 18 the Supreme Court again held that Section 2(oo) of the Act will have no application in a case where order of dismissal has been passed as a measure of punishment by way of disciplinary action.
32. In State Bank's case (supra) a departmental enquiry was held against the concerned workmen, for acts of misconduct and the enquiry officer came to the conclusion that two of the charges were fully proved while one charge was proved to a limited extent. The disciplinary authority in that case passed the following order:
Looking at the entire case I find that the established charges, viz., uttering indecent word? threatening the agent and failure to do the work allotted are quite serious charges and would warrant dismissal. However, the employee has had the benefit of a very tenacious defence from the date of the issue of the show cause notice for dismissal and various arguments have been raised with a view to evade the punishment which would normally follow out of the seriousness of the offence, Taking note of them, even though I do not quite find them tenable, as indicated in my detailed observations 'thereon, of the extenuating circumstances (most important of which is the comparatively young age of the employee) 1 have decided not to impose the punishment of dismissal. At the same time, I am of the opinion that it would not be desirable to retain Sari Sadavarte in the Bank's service and accordingly I order that he be discharged on payment of one month's pay and allowances in lieu of notice. In terms of para 521(10)(c) of the Sastri Award, this would not amount to disciplinary action.
But despite the same, as indicated hereinbefore, it was held that the order was punitive.
33. In my opinion, the construction of Section 2(oo) of the said Act sought to be put forth by Mr. Das would lead to an absurd result. An order of punishment passed by way of disciplinary measure on the part of the Management would come within the ambit of the definition of 'retrenchment' as contained in Section 2(oo) of the Act, as it cannot be said that only because a disciplinary proceedings was not initiated and/or disciplinary proceeding so initiated against the concerned workmen was not in consonance with the fair play and principles, of natural justice and/or otherwise illegal and invalid; thereby the Management cannot be deprived of adducing evidence before the Labour Court or the Tribunal as the case may be in order to prove the charges of misconduct as against the concerned workmen. It will be a different matter wherefrom the conduct of the employer it becomes evident that the order of termination was one of simpliciter and not by way of punishment. What is, therefore, necessary is that there must be an effectual order of termination of service even though ultimately the same may be held to be illegal.
34. In Punjab Beverages v. Jagdish Singh and Anr. 1978 Vol. 2 LLJ 1, the Supreme Court that an order of termination passed in violation of Section 33(2)(b)of the Act ifso facto does not render the order void ab initio.
35. From the discussions made hereinbefore, it is evident that for the purpose of coming to the conclusion as to whether the action on the part of the Management in passing the order of discharge or dismissal as against a workmen has been done as measure of punishment by way of disciplinary action or not depends upon fact of each case. For the purpose of coming to such a conclusion, the form of the order is also not decisive. However, in a given case, it may be possible for the workmen to contend, in the event the order of termination appears to be a termination simpliciter that, tire Management could not be permitted to alter its stand in a proceeding before the Labour Court or the Industrial Tribunal as the case may be, so as to enable it to contend that although the termination of the employee was a termination simpliciter, but in effect and substance the same, was a punitive one. However, so far as the workmen are concerned, they pan always contend that the form of the order is not decisive and although the order of termination on the face of it appears to be innocuous, the same in tact was passed mala fid and it was as a measure of punishment.
36. For the purpose of construction of an order of termination in the light of Section 2(oo) of the said Act, it is necessary to consider what is the intention on the part of the Management. In a given case, an order of termination may be passed even without holding a disciplinary roceeding if it is held that the intention of the Management was to inflict punishment upon the concerned workmen by way of disciplinary action. The words 'punishment' and 'disciplinary action' are complementary to each other. A punishment can be inflicted under the industrial law only by way of disciplinary action, but a punishment so inflicted by way of disciplinary action, does not loose its character only because in doing so, the procedures provided, for in the certified Standing Order and/or the contract of service were not adhered to or therein the Management failed to comply with the principles of natural justice and/or fair play in action.
37. In a given case, it is also possible, that although a disciplinary proceeding was held in substantial compliance of the provision contained in certified Standing Order, it may be found that the person constituting a disciplinary proceeding or appointing an enquiry officer was competent to do so. In such an event also, although the principles of natural justice and/or fair play in action might have been complied with, the disciplinary action must be held to be vitiated in law.
In Central Bank of India v. C. Bernard , the Supreme Court held when an order of dismissal has been passed by an authority who lacked inherent jurisdiction the same wan a nullity. In all such case as also in the cases where a disciplinary proceeding at all has not been initiated, there cannot be any doubt that in view of the decision of the Supreme Court in Firestone's case (supra) the Management would be entitled to raise question that the validity and/or legality of the domestic enquiry be decided as a preliminary issue and in the event if it be held that the domestic enquiry is not legal, and valid, the Management may be permitted to adduce evidence for the first time and/or independent evidence before the Labour Court and/or Industrial Tribunal as the case may be in order to prove the charge of misconduct as against the concerned workmen.
38. The submissions made by Sri Das, in view of the decisions of the Supreme Court in Firestone's case and all other decisions following it cannot be accepted.
39. In the Imperial Tobacco Co. of India Ltd. v. Its Workmen , the Supreme Court held that although a workmen may withdraw from the enquiry, the Management is not absolved from following procedure and continuing the enquiry ex parte.
40. However in that case, itself the Supreme Court held that once it is found that the order of dismissal of the workmen was not done after a valid enquiry as is required by the Standing Order of the appellant. The Supreme Court further held:-
Once this conclusion was reached, the matter was open before the labour court to decide for itself whether the charges on which Akhileshwar Prasad was dismissed had been proved before it but as to that no evidence was led before the Labour Court except the production of the record of the inquiry proceedings and certain documentary evidence.
This decision of the Supreme Court, therefore, does against the contention of Mr. Das.
41. In L. Robert D'Souza v. The Executive Engineer Southern Railway and Anr. reported in AIR 1982 SC 854, upon which, as noticed hereinbefore, Mr. Das placed strong reliance, the Supreme Court while considering a case as to whether striking off the name of a workmen from the Rolls of the Management would amount to a retrenchment or not held:-
Therefore, we adopt as binding the well-settled position In law that if termination of service of a workmen is brought about for any reason whatsoever, it would be retrenchment exoept if the ease falls within any of the excepted categories, i.e. (i) termination by way of punishment inflicted pursuant to disciplinery action; (ii) voluntary retirement of the workmen; (iii) retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; (iv) or termination of the service on the ground of continued ill-health.
It is, therefore, clear that Supreme Court in that case also held that termination by way of punishment inflicted pursuant to a disciplinery action would bring the case out of the purview of Section 2(oo) of the Act.
42. In Anand Cinema of Maheshwari and Bernard v. Mohan Tiwari and Anr. reported in 1986 Lab IC 336, B.M. Lal, J. of Madhya Pradesh High Court noticed the decision of the Supreme Court in Workman of Firestone Tyre and Rubber Co. v. The Management 1973 Lab 1C 851; State Bank of India v. R.K. Jain and Delhi Cloth and General Mills Co. v. Ludh Budh Singh 1972 Lab IC 573 and after quoting a paragraph 27 of the decision of the Supreme Court in Fire Stone's case proceeded to hold:-
The above referred decisions are of no avail to the petitioner in these petitions for two reasons:
(i) that in those cases the effect of Section 2(oo) mad with Section 25-F of the Act was not at all considered; and
(ii) the proviso to Section 11-A completely bars the Labour Court to take any fresh evidence.
43. The learned Judge applied the same reasonings for not following the other Supreme Court decisions in Management of Karnataka State Road Transport Corporation v. M. Boraiah and Shambhu Nath Goyal v. Bank of Baroda .
44. The learned Judge, further held that in a case where a workman has been dismissed from service without holding any disciplinary proceeding, the order of termination would be invalid in law as before doing so the conditions precedent laid down under Section 25 were not complied with. Learned Judge held:-
The distinction between an action being illegal and invalid and the action being null and void is that if the action is illegal, the party who violates the law may have to surfer some consequence but the act even if illegal has got its factual existence, and if the illegality goes to the root of the facts which are essential constituents of the act when the law will presume that in the absence of observance of the essential requirements of law, the act itself is of no consequence and is absolutely null and void. That means that in the eye of law, the act does not exist.
45. With utmost respect to the learned Judge, it is not possible for to agree with him. As indicated hereinbefore, for the purpose of considering me as to whether the order of punishment has been inflicted by way of disciplines action or not, the intention of the Management in this regard would be relevant. For imposing a punishment by way of a disciplinery action, in view pf the decisions of the Supreme Court, as referred to hereinbefore, as also the other decisions referred to by Mr. Das himself, it is not necessary for the Management to bold a disciplinery proceeding as such.
46. What would be the effect of imposing a punishment of discharge or dismissal against a workman upon completion of a defective enquiry or upon holding no enquiry was also taken into consideration in Firestone's case as also by the Full Bench of this Court in M/s. Indian Aluminium Co. Ltd. (supra). The Full Bench, in Indian Aluminium Co. Ltd., case pointedoutm what circumstances both the Management and the workmen can adduce fresh evidence before the Labour Court and/or Industrial Tribunal. In the Indian Aluminium's case (supra) it was pointed out that Parliament while amending a law is presumed to know the law of the land existing at the time of legislation. In that case, it was hold by me:-
As has been indicated by the Supreme. Court in the Firestone & case and the various decisions following the same, that it would be open-to the employer to make a prayer before the Labour Court of the Industrial Tribunal, as the case may be, that the legality, validity or otherwise of the domestic enquiry should be decided by way of preliminary issue and in the, event if it be held that the said domestic enquiry is found to be vitiated by reason of being illegal or invalid for any reason whatsoever the employer may pray for adducing fresh evidence before the Labour Court or the Tribunal to prove, the charges of miconduct against the concerned workman.
In such a situation, the concerned workmen can also lead evidence contra.
35. However, the workmen can bring any evidence on record to show at the time of hearing of the preliminary issue if decided to be framed and disposed of on the prayer of the emloyer or if otherwise all the issues are to be determined together, as to enable him to show that for any reason whatsoever the domestic enquiry was vitiated in law and/or the order of dismissal or discharge is otherwise illegal, invalid or unjust.
It was further held;--
The Supreme Court, in Firestone's case (supra)'clearly laid down that although in the event a preliminary issue with regard to the validity or legality of the domestic enquiry is decided against the management, it can lead fresh evidence in order to satisfy the Labour Court or the Tribunal that the concerned, workmen in fact has committed a misconduct and in that event, the workmen will get an opportunity to lead evidence contra. It is thus evidence that such evidence will form part of the 'materials on records.
47. In Firestone's case (supra), the Supreme Court has also dealt with a situation where no enquiry has been held by an employer before passing an order of dismissal or discharge. Even in such a situation, according to the Supreme Court, it is open to the Management to adduce evidence for the first time before the Tribunal. The Supreme Court held:-
Therefore, an attempt must be made to construe Section 11-A in a reasonable manner. It is another reason for holding that the right to adduce evidence for the first time recognised, by the employer has not been disturbed by Section 11-A. Proceeding further, the Supreme Court held:-
We have indicated the changes effected in the law by Section 11-A. We should not be understood as laying down that there is no obligation whatsoever on the part of an employer to hold an enquiry before passing an order of discharge or dismissal. This Court has consistently been holding that an employer is expected ' to hold a proper enquiry according to the Standing Orders and principles of natural justice. It has also been emphasised that such an enquiry should not be an empty formality. If 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 oogent reasons for not accepting the view of the employer. Further by holding a proper enquiry, the employer will also escape the charge of having acted arbitrarily or mala fide. It cannot be over emphasised that - conducting of a proper and valid enquiry by an employer will conduce to harmonious and healthy relationship between him and the workmen and it will serve the cause of industrial peace. Further it will also enable an employer to persuade the Tribunal to accept the enquiry me proper and the finding also as correct.
48. In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Maadoor Sabha reported in 198 J Vol. I LLJ 137, the Supreme Court was considering a case where 853 workmen were discharged from services for reasons of misconduct sot out in separate but integrated proceedings and on the face of the said order the workmen were discharged simpliciter. The Arbitrater, however, found that the workmen were punished as they resorted to illegal strike.
49. Repelling an argument advanced on behalf of the Management that the orders were not punitive in nature, it was held that in such cases substance of matters has to be taken into consideration. It was further held:-
What is decisive is the plain reason, for the discharge, not the strategy of a non-enquiry of clever avoidance of stigmatising opithatis.
The Supreme Court in that case having held that the Management removed all 853 workmen from service in punitive ground prooeeded to hold:-
The law is trite that the management may still ask for an opportunity to make out a case for dismissal before the Tribunal. The refinements of industrial law in this branch need not detain us because the arbitrator did investigate and hold that the workmen were guilty of misconduct and the 'sentence' of dismissal was merited, even as the High Court did reapraise any reach, on both course, the reverse conclusion.
50. Even in Deshraj Gupta v. Industrial Tribunal , the Supreme Court held that the order of the Tribunal asking the Management to justify punishment by adducing additional evidence in a case where the domestio enquiry was found to be invalid by reason of non-compliance of the principles of natural justice, was legal.
51. A proved. misconduct in the circumstances should mean that a misconduct which is said to have been proved according to the Management in order to enable it to pass a punitive order of discharge or dismissal.
52. In view of the authoritative pronouncements of the Supreme Court - also of this Court, as noticed hereinbefore, it must be held that the decision of the Madhya Pradesh High Court in Anand Cinema case (supra), does not lay down a good law.
53. In this view of the matter, in my opinion, the order of termination of the concerned workmen, as contained in Annexure-3 series to the writ application must be held to have been passed as a measure of punishment by way of a disciplines action and the same does not amount to retrenchment within the meaning and scope of Section 2(oo) of the said Act.
54. Ref.--Question No. C:
Before respondent No. 1, the Management examined 12 witnesses; whereas the workmen examined seven witnesses. It was admitted that domestic enquiry was not completed and the enquiry officer showed his inability to proceed further with the domestic enquiry. He, therefore, submitted his report to the Management together with the evidences adduced before him. However, before the respondent No. 1 neither the Management nor the workmen relied upon the said domestio enquiry and thus, the Labour Court proceeded to consider the question as to whether the Management has been able to prove the misconduct against the workmen justifying their dismissal on the basis of the evidence recorded before it. The respondent No. 1 considered the evidences of all the witnesses examined on behalf of the Management as also those witnesses examined on behalf of the workmen and held:-
Thus after going through the evidence of both the sides I find that the management has been able to prove the charges of Misconducts i.e., going on strike on 5-3-1981 inciting other workers to join the strike and coercing them to go on strike, stopping them from their work and refusing to accept the charge-sheet-cum-suspension orders tendered to them by shop foreman an superintendent (M.Ws 2 and 4).
55. Mr. T.K. Das learned Counsel for the petitioner, however, submitted that respondent No. 1 in his award did not give any' finding as to whether had gone on illegal strike or were guilty of disorderly behaviour. Learned Counsel submitted that going on strike by itself is not ground of dismissal and in this connection learned Counsel relied upon Section 2(q) and Section 24 the said Act as well as the Standing Order No. 5(F) (6.7 of the new Standing Order) wherein the word 'strike' has been assigned tho same meaning as defined in - the Industrial Disputes Act.
Learned Counsel submitted that the concerned workmen were charged for causing the alleged misconduct, namely:-
(a) instigation and/or participation in the illegal strike;
(b) disorderly behaviour and coercing other employees;
(c) interfering with the work of other employees;
(d) in subordination and/or disobedience of the lawful order of the superior.
At would appear from the charge-sheet which is contained in Annexure-1 to the writ application, the learned Counsel submitted, the petitioners cannot be held to be guilty of the charges mentioned hereinbefore. Learned Counsel in this connection strongly relied upon 1985 (50) FLR 501. Learned Counsel on the basis of the aforementioned decision submitted that there is no provision In the Standing Order with regard to a misconduct for going on a strike, the orders of termination passed by the Management must be held to be bad in law. It was further submitted that in any event from the evidence OP record, it would appear that the workmen who allegedly were not permitted to do work not only completed their B shift work but also worked in C shift.
In this connection learned Counsel referred to Exts. M - 118 (Annexure 5) wherein it was mentioned that all workers except Billu Oraon and Bandhan Kujur were absent.
56. Learned Counsel, therefore, submitted that from the said Exhibit, it is clear that the aforementioned two workmen did their duties and, thus, it cannot be said that they were prevented from doing their work.
57. Learned Counsel further drew my attention to Ext. M-119 which is contained in Annexure 5-A that 14 workers reported before 12 midnight who were called for overtime job and one of them was the aforementioned Billu Oraon. He further submitted that M.W. 11, Birendra Kumar also worked in C. shift. Learned Counsel, therfore, submitting that these aspect of the matter having not been considered, the award of respondent No. 1 to the effect that the petitioners terminated the concerned workmen from working must be held to be incorrect.
58. With regard to the refusal to accept charge-sheet, learned Counsel submitted that although M.W. 4 Jaswant Singh was the only witness who supported Dildar Singh (M.W. 2) but there is nothing in writing that the charge was not served. This, according to the learned Counsel, amounts to non-consideration of the relevant facts. With regard to the alleged meeting, it was submitted that none has stated about the meeting and in any event there bing no organised assembly, the meeting could not be said to have been proved. According to the learned Counsel, respondent No. 1 proceeded to hold about the purported meeting without any evidence and, thus, the award is perverse.
59. The Court in exercise of Its writ jurisdiction cannot usurp the function of an appellate Court. This Court in exercise of its writ jurisdiction is not concerned with the decision itself but is concerned.with the decisionmaking process (See AIR 1989 SC 997).
60. It is further well kown that even if there be some evidence to sustain the finding, this Court in exercise of its writ jurisdiction shall not interfere with a finding of fact. In other words, sufficiency of materials cannot be a ground for interfering with an award passed by a competent court.
61. M.W. 4 who was Superintendent of Machine Shop in his evidence clearly stated that from Mr. Dildar Singh he came to learn that as annual increment was not shown in the pay slip the work was stopped by the workmen at the instance of the concerned workmen and it was not started despite Dildar Singh's request.
62. He further stated that the concerned workmen when served with the charge-sheet by Dildar Singh, M.N. Pandey, Captain Chopra, M.W. 2, M.W. 4 and M.W. 10, respectively returned the same after reading the said charge.
63. From the impugned order as contained in Annexure-1 to the writ application, it is evident that for coming to the finding-as to whether the concerned workmen were guilty of charges, there are some evidence on record and thus it cannot be said that the said award is perverse being based on evidence.
64. The question which now arises for consideration is as to whether the findings of the Tribunal with regard to the alleged misconduct committed by the concerned workmen come within the purview of the certified Standing Order or not.
63. The learned Counsel for the Management submitted that misconduct on the part of the concerned workmen would come within the purview of Major Misdemeanours as contained in Clause II(2), II(16), II(22), II(29) and II(39) which read as follows:-
2. Participation in or instigation to an illegal strike.
16. Riotous or disorderly behaviour, threatening, intimidating, coercing other employee or employees, interfering with the work of other employee or employees, assault or threat of assault either provoked or otherwise, within the factory premises.
22. Organising, holding, attending or taking part in any meeting within the factory premises without the prior sanction of the Manager.
29. Refusal to accept a charge-sheet, of other communication served either in accordance with the standing orders or in the interests of discipline in presence of workers.
39. Instigation, incitement, abetment, or furtherance of any of the above acts of misconduct.
66. From a perusal of Paragraph 22 of the impugned award which has been quoted hereinbefore, it would appear that the respondent No. 1 held in the matter of the concerned workmen as follows:-
(1) the workmen had gone on strike on 5-3-1989 and incited other workmen to join the same;
(2) Coerced them to go on strike;
(3) Stopped them from their work;
(4) Refused to accept the charge-sheet-cum-suspension orders.
67. The question now arises for consideration is as to whether the concerned workmen committed' any misconduct' in terms of the certified Standing Order or not ?
68. 'Strike' has been defined in Section 2(q) of the Act which reads as follows:-
strike means a cessation of work by a body of person employed in any industry acting in combination, or a Concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed, to continue to work or to accept employment.
Illegal strike has been defined in Section 24 of the Act which reads as follows:-
Illegal strike' and lock-outs: 1. A strike or a look-out shall be illegal if--
(i) it is commenced or declared ia contravention of Section 22 or Section 23;or
(ii) it is continued in contravention of an order made under Sub-section (3) of Section 10 or Section (4-A) of Section 10-A. (2) Where a strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time of the reference of the dispute to a Board, an arbitrator, a Labour Court, Tribunal or National Tribuhal, the continuance of such strike or lock-out shall not be deemed to be illegal:
Provided that such strike or lock-out was not at its commencement in contravention of the provisions of this Act or the continuance thereof was not prohibited under Sub-section (3) of Section 10 or Sub-section (4-A) of Section 10-A. (3) A lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal.
69. As indicated hereinbefore, the certified Standing Order incorporates the definition of strike by reference to the provisions of Section 2(q) of the said Act.
70. As has been hereinbefore, respondent No, 1 has found that the concerned workmen had gone on strike and/or incited others for going, on strike, S.O. 11.2 read with S.O. 11.39 refers to participation in or instigation to an illegal strike and/or incitmont, abatement or furtherance of any of the misconducts mentioned in S.O. 11 which in the context would mean inciting other workers to go on in an illegal strike.
71. It is, therefore, clear that by going on strike or inciting some other workmen to go on strike by itself would not amount to any misconduct within the meaning of Clause 11.2 read with S.O.11.39 of the Certified Standing Order.
72. There cannot be any doubt that the list of misconduct enumerated in the Certified Standing Order may not be exhaustive.
In this connection learned Counsel for the Management has relied upon the following decisions of the Supreme Court.
AIR 1961 SC 1189--Central India Coalfields Ltd. v. Ram Bilas Shobhath.
--Tata Oil Milts Co. v. The Workmen.
. Mulchandani Electrical v. The Workmen.
73. In the Central India Coalfield's case the Supreme Court was considering a case for grant of approval under Section 33(2)(b) of the Act. In that case, there was no dispute with regard to the allegations made as against the concerned workmen. No evidence was adduced before the Tribunal about the allegations of mala fide. In such a situation, the Supreme Court held that the respondents should not be permitted to raise a question of mala fide for the first time in the appeal and in that context it was held that there could not have been any difficulty in approving the order of dismissal.
74. In Tata Oil Mills Co. Ltd. v. The Workmen , it was held that the misconduct was committed outside the factory premises. I that case, the relevant standing order being S.O. No. 22(VIII) provided that without prejudice to the general meaning of the term 'misconduct' it shall be deemed to mean inter alia, drunkenness, fighting, riotious, disorderly or indecent behaviour within or without the factory. Even in that context it was held that it would be unreasonable to include within the Standing Order No. 22(viii) any riotious behaviour outside the factory which was result of purely private and individual dispute and, in course of which tempers of both the contestants became hot. The Supreme Court further held that:
In order that Standing Order 22(viii) may be attracted it must be shown that the disorderly or riotous behavior had some rational connection with the employment of the assailant and the victim.
In that case, however, it was found the assault committed on the victim was not a purely private or individual matter.
75. In Mulchandani Electrical and Radio Industries Ltd. v. The Workmen it was held that assault by operator on chargeman of same factory would be an act subversive of discipline, irrespective of the fact as to whether the said assault took place outside the factory or within the premises or precincts of the establishment. In that case, it was held that although the actual took place in a sub-urban train, the same had the effect of subverting the discipline or good behaviour within the premises or precincts of the establishment, the same would amount to misconduct within the meaning of S.O. 24(1) which reads as follows:-
commission of any act subversive of discipline or good behaviour within the premises or precincts of the establishment.
76. On the other hand, the Supreme Cout in Shri Rasiklal Vaghajibhai Patel v. Ahmadabad Municipal Corporation and Anr. reported in 1985 (50) FLR 201, following its earlier decision in Galxo Laboratories v. The Presiding Officer, Labour Court reported in (1984)1 SCR 230, held as follows:-
It is thus well-settled that unless either in the Certified Standing Order or in the service regulation an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workmen even though the alleged misconduct would not be comprehended in any of the enumerated misconduct.
77. It is, therefore, clear that if the Standing Order which has the force of law states-that only participation or inciting the workers of instigating them to an illegal strike would be a misconduct, by finding that they resorted to a strike which was not illegal, no order of punishment can be passed on the basis thereof. In view of the fact that Certified Standing Order comprehends only participation in or instigation incitement, abatement ar furtherance of such illegal strike would be a misconduct, participation in or instigation to a simple strike and not an illegal strike would not come within the purview of misconduct.
78. However, stopping the workmen from work would, come within the purview of S.O. 11.16. Similarly, refusal to accept charge-sheet and the order of suspension would come within the purview of S.O. 11.29.
79. Kef. Question No. D. In view of the provisions contained in Section 11-A of the Industrial Disputes Act, it would be evident that the Parliament intended to confer a wide power upon the Labour Court and Industrial Tribunal to satisfy itself that not only the order of discharge of dismissal passed as against the concerned workmen by the Management is justified but also to consider as to whether the punishment imposed upon him was commensurate with the misconduct committed by him and in the event if it is so found, to award any lesser punishment in lieu of an order of discharge or dismissal as the circumstances may require.
80. In terms of Section 11-A of the Industrial Disputes Act, the Labour Court and Industrial Tribunal has disrection to exercise its jurisdiction to pass suitable order of punishment, in lieu of the order of discharge or termination of service passed against the concerned workmen by the Management, if a case in relation thereto is made out.
81. This Court in exercise of its writ jurisdiction normally should not interfere with the order of Labour Court of Industrial Tribunal under Section 11-A of the Industrial Disputes Act, refusing to exercise his discretion in favour of the workmen, as has been held by me in Shabir Ahmad Khan v. Presiding Officer, Labour Court, Ranchi and Anr. 1990 LIC 1447.
82. However, it is well known that the discretion must be exercised reasonably. In Alliance Mills(Lessees) Pvt. Ltd. v. State of W. Bengal and Ors. 1990 FLR (Vol. 61) 218, a learned Single Judge of the Calcutta High Court quoted with approval a decision of the Gujarat High Court in R.M. Parmar v. Gujarat Electricity Board, Baroda 1982 LIC 1031, in the following terms:-
As has been pointed out in the case of R.M. Parmar v. Gujarat Electricity Board Baroda, (supra) 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. While deliberating upon the jurisprudential dimonsion the following factors must be considered:
(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 the 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 a parent makes towards an erring of 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 them. It would be counter productive to do so for it would be futile to except 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 reached 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 jeopardizing the interest of the employer the disciplinary authority cannot impose the maximum penalty of dismissal from service, he is bound to ask him inner voice and rational faculty why a lessor penalty connot be imposed.
83. In Management of the Federation of Indian Chamber of Commerce and Industry v. Their Workmen, Shri R.K. Mittal reported in 1971 Vol. II LLJ 630, the Supreme Court observed:-
In these circumstances, it is open to the Tribunal to go into the question whether the punishment was disproportionate to the misconduct complained of as to amount to victimisation. In W.M. Agnani v. Badri Dai and Ors. (1963)(1) LLJ 684, it was so held by this Court. It was also held in Hind Construction and Engineering Co. Ltd. v. The Workmen , that although it is a settled rule that the award of punishment for misconduct is a matter for the management to decide and if there is justification for punishment improsed, the Tribunal should not interfere; but where the punishment is so disproportionate that no reasonable employer would ever have imposed it in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimisation or unfair labour practice. In view of the fact that the domestic Tribunal acted on no evidence at all because it was found that the intention with which the respondent issued the notice to the International Chamber of Commerce and Industry could not be ascertained, the Tribunal was justified in allowing evidence to be led and on that evidence to come to the conclusion that the termination of service was wrong. We cannot help feeling that the Federation had made a mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation.
84. From the decisions aforementioned, it is clear that where the discretion has properly been exercised by the Tribunal in exercise of its power conferred upon it under Section 11-A of the Act, there cannot be any doubt that this Court in exercise of its jurisdiction under Article 226 of the Constitution would not interfere therewith.
85. In this case, the respondent No. 1 held that the punishment inflicted upon the concerned workmen by the Management was justified upon taking into consideration the cumulative effect of all the charges of misconduct proved against them.
The Management in the order of termination of services of the concerned workmen also took into consideration their past records.
86. It is, therefore, clear that the order of dismissal was passed by the Management upon taking cumulative effect of the fact that all the charges stood proved.
87. In Binny Ltd. v. Their Workmen and Anr. as , the Supreme Court held as follows:-
Where a delinquent is charged of a particular misconduct but the dismissal order is passed as a result of the cumulative effect of the particular misconduct charged as well as past lapses for which opportunity to explain was not given, the order is not maintainable. In such a case it cannot be treated that two separate charges have been framed against the delinquent and they are of such a serious nature that the finding of guilt on anyone would warrant the dismissal of the delinquent from service.
88. The respondent No. 1 has considered the quantum of punishment only in the following words:-
Now considering the quantum of punishment W.W. 5 had admitted that he was charge-sheeted for misconduct in the year 1971 and the management produced the charge-sheet as well as the explanation submitted by him. There are no extenuating circumstances to show that the concerned workmen had been working in the factory to keep the industrial peace and harmony between them and the management. The alleged misconducts are admittedly misconduct of major nature according to the certified standing order of the company and considering the seriousness of the misconducts, their nature and the consequences upon the Industrial peace and harmony and the relationship between the workmen and the management I do not find any reason to interfere with the punishment awarded.
He, therefore, did not consider the case of other concerned workmen except W.W. 5 at all.
89. From the award, it does not appear that the past records of the concerned workmen were produced before the respondent No. 1 which evidently was also taken into consideration by the Management in issuing the orders of termination which are contained in Annexure-3. The respondent No. 1 should have also considered the back drop of the event for the purpose considering as to whether there was some occasion for the workmen to get agitated or note.
90. In this situation, I have no other option but hold that the respondent No. 1 failed to take into consideration relevant facts in awarding the extreme punishment of dismissal as against the concerned workmen and thus the award has to be set aside and the matter be remitted back for due consideration on the question of quantum of punishment only. In view of my findings aforementioned, the contention of Mr. Das in this regard are not necessary to be taken into consideration.
91. Re. Question No. (e) There cannot be any doubt that this Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India has the power to issue a limited rule. However, the power of the court being supervisory in nature, it is open to this, Court to consider other points which may be raised even if a limited rule is issued.
92. In this case except the point Nos. (a) and (b) as referred to hereinbefore, all other questions fall within the framework of the rule nisi issued in this case by this Court in its order dated 28-4-1987.
93. The other questions raised by Mr. Das were important questions and were specifically raised in the writ petition as also in the supplementary affidavit.
94. As noticed hereinbefore, at least there was a direct necision of the Madhya Pradesh High Court in favour of the petitioner.
95. In Eastern Railway Employees' Congress v. General Manager Eastern Rly. , the Calcutta High Court relying on its earlier decision in Vol. 68 Calcutta Weekly Notes 179 held that the court hearing the case on merits is not precluded from considering grounds other than those on which rule nisi might have been issued, of course, after giving proper opportunities to the parties.
96. This aspect of the matter has recently been considered by a Full Bench of this Court in Rama Nand Choudhary v. S.D. Pandey and Anr. reported in 1990 BBCJ 695 : 1991 PLJR 171, wherein the Full Bench while considering the question as to whether when the criminal rrevision application is admitted on the question of sentence only, the court is entitled to consider the revision application on merits held that although the case on merits should not be decided but in a given case, the court hearing the application may exercise its suo motu jurisdiction.
97. This Court while exercising its jurisdiction under Articles 226 and 227 of the Constitution of India exercises a plenary power. This Court not only is a court of law but also is a court of justice.
98. If on behalf of the workmen, a substantial question of law is raised, this Court may decide the said question irrespective of the fact that a limited rule nisi was issued.
99. In the result, this application is allowed in part. The award as contained in Annexure-1 to the writ application is set aside to the extent mentioned hereinbefore and matter is remitted back to respondent No. 1 for due consideration on the question of quantum of punishment only in the light of the observations made in this judgment. There will, however, be no order as to costs.