Gujarat High Court
Mohd vs Municipal on 5 May, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/5508/2003 24/ 27 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5508 of 2003
With
SPECIAL
CIVIL APPLICATION No. 3979 of 2004
With
CIVIL
APPLICATION No. 1552 of 2004
In
SPECIAL CIVIL APPLICATION No. 5508 of 2003
With
CIVIL
APPLICATION No. 2055 of 2006
In
SPECIAL CIVIL APPLICATION No. 3979 of 2004
=========================================================
MOHD.
HUSSAIN M. MANSURI - Petitioner(s)
Versus
MUNICIPAL
COMMISSIONER - Respondent(s)
=========================================================
Appearance
:
MR
RD RAVAL for
Petitioner(s) : 1,
MR PRANAV G DESAI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/05/2010
ORAL
ORDER
Heard learned Advocate Mr. RD Raval for workman Mohd. Hussain M. Mansuri and learned Advocate Mr. Pranav Desai for Vadodara Municipal Corporation.
Both petitions have been filed by respective parties challenging one common award passed by labour court, Baroda in Reference NO. 878 of 1994 decided on 28th October, 2002, vide Exh.42. Labour Court has granted reinstatement with continuity of service but without back wages and, therefore, grievance is raised by Corporation by filing petition against relief of reinstatement and grievance is raised by workman against denial of back wages for interim period. Thus, both petitions are arising from one common award for different grievance raised in their respective petitions.
Learned Advocate Mr. Pranav G. Desai for Corporation submitted that the workman was appointed as labourer with effect from 27.2.1986 on compassionate ground on probation. He submitted that he was made permanent on the post of labourer with effect from 3rd September, 1988. Respondent workman has not reported for duty from 1st May, 1991 and remained unauthorizedly absent without informing in writing to department. Workman has not replied notice issued by corporation but subsequently, it has come to notice of corporation that respondent was involved in offence of communal riots and Arms Prohibition Act and, therefore, he was put behind bars and, therefore, charges were framed against him and he was placed under suspension and after following due inquiry, one of the charges levelled against respondent was proved and looking to seriousness of charges leveled against him, respondent was dismissed from service. Against that, departmental appeal was preferred before Standing Committee which was also rejected. Thereafter, industrial dispute was raised which was referred to for adjudication and ultimately labour court has granted relief of reinstatement without back wages for interim period in favour of workman and, therefore, corporation is challenging award in so far as reinstatement granted in favour of workman is concerned.
Learned Advocate Mr. Raval for workman has submitted that in criminal case which was lodged against respondent workman, where he was acquitted by competent criminal court and against that judgment of acquittal, no appeal was preferred by any party including State Government. It is necessary to note that at the time of issuing notice in Special Civil Application NO. 3979 of 2004, rule has been issued and ad interim relief in terms of para 8(D) was granted by this court (Coram : Hon'ble Mr. Justice Jayant Patel,J.) on 2nd April, 2004. Said order is quoted as under:
Mr.Manish Upadhyay for Mr.Desai states that till now the award is not implemented and the petitioner has not reinstated the respondent.
2. Primafacie, it appears that there is callous approach on the part of the concerned officer of the petitioner-corporation in not challenging the award of October, 2002 till January, 2004, i.e. roughly for a period of about one and half years, though there is a good case on merits.
3. Rule to be heard with SCA No.5508/03. Ad interim relief in terms of para 8(D) with further direction that the Commissioner of the petitioner-Corporation shall hold an inquiry for the aforesaid callous approach on the part of the concerned officer of the corporation in not pursuing the litigation in time and causing delay of about one and half years in preferring this petition. Such inquiry shall also include as to why exemplary costs should not be ordered and the same should not be recovered from the salary of the concerned erring officer. Such report to be submitted on or before 26.4.04 and if the report is not submitted before 26.4.04 the Commissioner of the petitioner corporation shall remain personally present before this court on 27.4.04.
4. Notice as to interim relief returnable on 27.4.04.
Learned Advocate Mr. RD Raval appearing for Workman has submitted that since award of reinstatement has been stayed by this Court, respondent workman was receiving last drawn wages from petitioner corporation regularly and for that, he is having no complaint or grievance and because of stay granted by this court against reinstatement, corporation has made compliance of section 17B of ID Act, 1947. Special Civil Application No. 5508 of 2003 filed by workman has been admitted by this Court by order dated 28.4.2003. In Special Civil Application NO. 3979 of 2004 filed by Corporation, rule was issued by this court on 2.4.2004 and was ordered to be heard with SCA No.5508 of 2003.
Learned Advocate Mr.Raval for workman has raised contention before this court that labour court has committed gross error in not awarding any back wages for interim period when termination order has been held to be illegal. He submitted that it is burden upon employer to prove gainful employment of workman which has not been discharged by employer but only considering cross examination of workman wherein it was deposed by him that whatever work was being carried out by workman in corporation,for that, he has not made any efforts in the society and labour court has committed gross error in not granting any amount of back wages for entire period only on the ground that for such a pretty long period, workman would not have remained unemployed because he has maintained family and survived for this much period and that is the basic error committed by labour court which would require interference of this court.
Learned Advocate Mr. Pranav G. Desai appearing for petitioner corporation has submitted that labour court has committed gross error in granting relief of reinstatement to such a person who was involved in offence of communal riots and considered to be terrorist and he was arrested by police authority. Before labour court, statement of claim was filed by workman at Exh. 3 who was working in work shop as helper and his service was terminated on 9th March, 1993and at that time, his salary was Rs.1364.00. Against statement of claim, written statement was filed at Exh. 5 by corporation where details were given by corporation that in communal riots at Baroda, respondent workman was involved and, therefore, he was remaining absent with effect from 1st May, 1991. Such activities carried out by workman and his involvement in communal riots had adversely affected prestige of corporation. In departmental inquiry, charge was established against workman, for that, show cause notice was issued and considering serious allegation and offence committed by workman, he was dismissed from service. Before labour court, legality and validity of departmental inquiry was not challenged by workman and, thereafter, documents were produced by corporation before labour court at Exh. 6/1 to 6/29 including papers of departmental inquiry. Workman was examined at Exh. 8 before labour court who has supported facts of statement of claim. According to workman, efforts were made by workman for obtaining service but nobody was prepared to give job to him. However, it was admitted by him that for getting whatever work which he was carrying out in workshop, no efforts were made by him. Then, evidence of workman was closed and on behalf of corporation, no witness was examined before labour court and thereafter, matter was heard by labour court and submissions made by both learned advocates were considered by labour court and, thereafter, labour court has come to conclusion and gave reasons in para 9 while framing issues and discussed evidence in para 10 onward. Since legality and validity of departmental inquiry was not challenged by workman before labour court, labour court has considered only question of punishment while exercising powers under section 11-A of ID Act, 1947. Labour court has discussed allegations made against workman. Labour court has also considered that looking to gravity of misconduct which has been established against workman, whether punishment of dismissal imposed against workman can be considered to be proportionate or not. For that, whether interference under sec. 11-A of ID Act, 1947 is necessary or not. For that purpose, labour court has considered each allegation or misconduct alleged against workman. As per allegation No.1, he remained absent without prior permission and as per second allegation, it was alleged that on 23.4.1991, at Bel Bazar, by giving blows by means of sharp edged weapon, he committed murder of one person and created an atmosphere of tense and terror and also committed breach of the provisions of Arms Act and for that, I CR NO. 191/91 was registered before City Police Station (Vadodara City Police) for offence punishable under section 147, 148, 143, 302, 43, 426, 427 of the Indian Penal Code and section 4,5 of TADA Act against workman. As per charge no.3 levelled against workman, it was alleged that as per rule 18 of the Gujarat Civil Services Conduct Rules, 1971, when an offence is registered against any employee, then, intimation thereof is required to be given by such employee to the head of the department in writing but workman has not given information of offence registered against him as per charge no.2 to head of department and thus, he has committed breach of Gujarat Civil Conduct Rules and has committed lapse in performance of duty. Charge No.1 and 2 as aforesaid were not proved against workman in departmental inquiry. But because charge No.3 has been found to be proved because though criminal offence was registered against workman, same was not informed by workman to Municipal Commissioner or highest officer of corporation and, therefore, labour court has considered charge which has been proved against him. Labour Court has considered letter dated 28.2.1992 and 28.4.1992 sent by workman by RPD to Corporation that against him, criminal offence has been registered by police authority and at present, he is in custody of police and remained in jail as under trial prisoner. These facts were brought to notice of corporation by workman through jail. Therefore, question was arising why these two letters were sent by workman to corporation. He was required to inform higher officer or immediate head of department immediately but that was not done by workman immediately but subsequently, by two letters as referred to above, facts were brought to notice of corporation. Labour Court has considered that the workman was helper, labourer having no knowledge of service rules and when he was arrested by police authority, at that time, he must be in disturbed mental condition and worried about himself and his family members and, therefore, not able to inform higher authority or immediate head of department immediately about criminal offence registered against him and also about his imprisonment. So, in light of misconduct, allegation no.3, labour court has examined whether punishment of dismissal is proportionate or not and in such circumstances, whether one chance is required to be given to workman or not. Labour court has also considered that charge no.1 and 2 have not been proved against workman in departmental inquiry and in criminal case registered against him, he was acquitted by competent criminal court and against such order of acquittal, appeal has not been preferred by any party including State Government and, therefore, in light of this back ground, labour court has, in exercise of powers under section 11A of ID Act, 1947, come to conclusion that when only one charge of not informing highest authority of department in time has been established against workman, which cannot be considered tobe serious one because subsequently, corporation was informed by workman by letters dated 28.2.92 and 28.4.92 and, therefore, in light of this back ground, labour court was of view that the punishment of dismissal from service is harsh and unjustified and, therefore, it is required to be modified looking to misconduct which has been established against workman. Labour Court has also considered second aspect that in such cases, if back wages are paid, then, it is having adverse impact in society and also against corporation. Before labour court, gainful employment of workman was not proved by corporation but it was stated by workman in his cross examination that sincere efforts were not made by him to have work similar to work which was being carried out by him in corporation as a helper. Labour court has granted relief of reinstatement in favour of workman while holding that for such proved misconduct of not informing highest authority or immediate head of department in time, punishment of dismissal from service is harsh, unjustified and shockingly disproportionate to guilt established against delinquent. While granting relief of reinstatement, labour court has denied back wages by way of punishment considering misconduct proved against him and has, thereby, modified order of punishment passed by corporation. Labour court has considered that denial of back wages would amount to punishment, for that, labour court is having power to deny back wages by way of punishment. Therefore, labour court has considered question of proportionality in light of power under sec. 11A of ID Act, 1947. Allegation No.3 misconduct that is lapse or at the most negligence on the part of workman in not bringing to the notice of employer about registration of offence against him but for that, punishment of dismissal is considered to be harsh and unjustified by labour court and, therefore, relief of reinstatement is granted while denying back wages for interim period by way of punishment in exercise of powers under sec.11A of ID Act, 1947. According to my opinion, relief of reinstatement and denial of back wages for interim period by way of punishment is proper as labour court has considered and examined proportionality.
Recently, question of proportionality of punishment has been examined by apex court in case of Chairman cum Managing Director, Coal India Ltd. & Anr. v. Mukul Kumar Choudhuri & Ors., reported in 2009 Lab IC page 3890. In said case before apex court, misconduct of delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey order of higher authority or violate any of Company's Rules and Regulations but reason was purely personal and beyond his control and as a matter of fact, he sent his resignation which was not accepted. It was held that order of removal cannot be held to be justified since no reasonable employer would have imposed extreme punishment of removal in the circumstances. Relevant observations made by apex court in aforesaid judgment in para 21 to 26 are quoted as under:
21. The Division Bench like the Single Bench fell into grave error in not adequately adverting to the fact that the charges were admitted by the delinquent unequivocally and unambiguously and, therefore, misconduct of the Respondent No. 1 was clearly established. We are, therefore, unable to persuade ourselves to concur with the view of the High Court.
22.
The question, however, remains : is the punishment of removal grossly disproportionate to the proved charge of unauthorized absence for more than six months?
23. In order to answer the aforesaid question, it would be appropriate to refer to a few of decisions of this Court wherein doctrine of proportionality has been considered. In Union of India and Another v. G. Ganayutham2, this Court elaborately considered the proportionality in the administrative law in England as well as in our own country. The court considered some important English decisions, viz., Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, Council of Civil Service Unions v. Minister for Civil Service, R. v. Goldstein5 and R. v. Secretary for Home Dept. ex. p. Brind and few decisions of this Court, viz., Ranjit Thakur v. Union of India, State of Maharashtra v. M.H. Mazumdar, Ex-Naik Sardar Singh v. Union of India, Tata Cellular v. Union of (1997) 7SCC463 this court elaborately considered the proportionality in the administration of law in England as well as in our own country. The Court considered some important English decisions, viz., Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947 ) 2 All ER 680, Council of Civil Service Unions v. Minister for Civil Service (1984) 3 All ER 935, R. v. Goldstein (1983) 1 All ER 434 and R. v. Secretary for Home Dept. , ex.p. Brind (1991) 1 All ER 720 and few decisions of this Court, viz. Ranjuit Thakur v.Union of India (1987) 4 SCC 611, State of Maharashtra v. MH Mazmudar (1988) 2 SCC 52 Ex Naik Sarda Singh v. Union of India (1991) 3 SCC 213, Tata Cellular v.Union of India (1994) 6 SCC 651, State of AP v. McDowel & Co. (1996) 3 SCC 709 and summed up position of proportionality in administrative law in England and India thus;
"(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury test.
(2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational -- in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU principles.
(3)(a) As per Bugdaycay (1987 AC 514), Brind and Smith as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14."
24. Dealing with the question of proportionality with regard to punishment in disciplinary matters, the court said :
"32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of "proportionality". There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to "irrationality", there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in "outrageous" defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain "Ranjit Thakur".
In Ranjit Thakur this Court interfered with the punishment only after coming to the conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, Wednesbury and CCSU tests were satisfied. In another case, in B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749] a three-Judge Bench said the same thing as follows: (SCC p. 762, para 18) "18. ... The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
Similar view was taken in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora [(1997) 3 SCC 72] that the Court will not intervene unless the punishment is wholly disproportionate.
34. In such a situation, unless the court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi case that the Court might to shorten litigation -- think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. (In B.C. Chaturvedi and other cases referred to therein it has however been made clear that the power of this Court under Article 136 is different.) For the reasons given above, the case cited for the respondent, namely, State of Maharashtra v. M.H. Mazumdar cannot be of any help."
25. Again, in the case of Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn. and Another this court considered the doctrine of proportionality and it was held :
So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the "doctrine of proportionality".
"Proportionality" is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise--the elaboration of a rule of permissible priorities.
de Smith states that "proportionality"
involves "balancing test" and "necessity test". Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; see also Wade & Forsyth:
Administrative Law (2005), p. 366.] In Halsbury's Laws of England (4th Edn.), Reissue, Vol. 1(1), pp. 144-45, para 78, it is stated:
"The court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground for review in English law, but is regarded as one indication of manifest unreasonableness."
21. The doctrine has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no "pick and choose", selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a "sledgehammer to crack a nut". As has been said many a time; "where paring knife suffices, battle axe is precluded".
22. In the celebrated decision of Council of Civil Service Union v. Minister for Civil Service(1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL) Lord Diplock proclaimed: (All ER p. 950h-j) "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call `illegality', the second `irrationality' and the third `procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality'...." (emphasis supplied)
23. CCSU has been reiterated by English courts in several subsequent cases. We do not think it necessary to refer to all those cases.
24. So far as our legal system is concerned, the doctrine is well settled. Even prior to CCSU, this Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a court to interfere with such penalty in appropriate cases.
25. In Hind Construction & Engg.
Co. Ltd. v. Workmen (AIR 1965 SC 917), some workers remained absent from duty treating a particular day as holiday. They were dismissed from service. The Industrial Tribunal set aside the action. This Court held that the absence could have been treated as leave without pay. The workmen might have been warned and fined. (But) 'It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner."
(AIR p. 919, para 7) (emphasis supplied) The Court concluded that the punishment imposed on the workmen was "not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed". (AIR pp. 919-20, para 7) (emphasis supplied) In Federation of Indian Chambers of Commerce and Industry v. Workmen [(1972) 1 SCC 40], the allegation against the employee of the Federation was that he issued legal notices to the Federation and to the International Chamber of Commerce which brought discredit to the Federation--the employer. Domestic inquiry was held against the employee and his services were terminated. The punishment was held to be disproportionate to the misconduct alleged and established. This Court observed that: (SCC p. 62, para 34) "[T]he Federation had made a mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation."
In Ranjit Thakur referred to earlier, an army officer did not obey the lawful command of his superior officer by not eating food offered to him. Court-martial proceedings were initiated and a sentence of rigorous imprisonment of one year was imposed. He was also dismissed from service, with Z added disqualification that he would be unfit for future employment.
.
Applying the doctrine of proportionality and following CCSU, Venkatachaliah, J. (as His Lordship then was) observed: (SCC p. 620, para 25) "The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review." (emphasis supplied)
26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.
Labour Court is also having power to deny back wages for interim period by way of punishment while exercising powers under section 11A of ID Act, 1947 as per decision of apex court in case of Jidendra Singh Rathor versus Shri Baidyanath Ayurved Bhawan Ltd., AIR 1984 Supreme Court 976. Relevant observations made by apex court in para 3 and 4 are quoted as under:
3. Wide discretion is vested in theTribunal under this provision and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is a well-settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatement and keeping A the delinquency in view could withhold payment of a part or the whole of the back wages.
In our opinion, the High Court was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty. Withholding of back wages to the extent of half in the facts of the case was, therefore, by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that the relief of reinstatement was being granted on terms of withholding of half of the back wages and, therefore, did not constitute penalty.
4. Under Section 11-A of the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High ult is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. In this case, the Tribunal had directed reinstatement, the High Court vacated the direction of reinstatement and computed compensation of Rs. 15,000 in lieu of restoration of service. We are not impressed by the reasoning of the High Court that reinstatement was not justified when the tribunal in exercise of its wide discretion given under the law found that such relief would meet the ends of justice. The Tribunal had not recorded a finding that there was loss of confidence of the employer. The job of a librarian does not involve the necessity of enjoyment of any special confidence of the employer. At any rate, the High Court too did not record a finding to that effect. Again, there is no indication in the judgment of the High Court as to how many years of service the appellant had put in and how many years of service were still left under the Standing orders. The salary and other service benefits which the appellant was receiving also did not enter into the consideration of the High Court while computing the compensation. We are, therefore, of the view that the High Court had no justification to interfere with the direction regarding reinstatement to service and in proceeding to substitute the direction by quantifying compensation of Rs. 15,000 it acted without any legitimate basis.
In Maheshwar Rao P. And Presiding Officer, Labour Court & Anr., reported in 1998-I-LLJ, page 264, Andhra Pradesh High Court observed as under
:
16. After the insertion of Sec. 11-A, two special powers, viz., (i) power of reappraisal of evidence, and (ii) power to consider whether the penalty of dismissal or discharge imposed by the employer as a disciplinary measure is justified or not, have been conferred on the Labour Courts and the Industrial Tribunals. If the penalty imposed by the employer is found to be unjustified, then, the Labour Courts and the Industrial Tribunals are armed with power to set aside the penalty and direct reinstatement of the workmen on such terms and conditions as they think fit or grant such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal. In Workmen of Firestone Tyre and Rubber Company of India (P) Ltd. v. The Management (1973-I-LLJ-278), the Supreme Court held that Section 11-A applies only to disputes which are referred for adjudication after the section came into force because it has the effect of altering the law laid down by the Supreme Court in its earlier pronouncements in this respect by abridging the right of the employer inasmuch as it gives power to the Labour Courts and the Industrial Tribunals, for the first time to differ both on a finding of misconduct arrived at by an employer as well as the punishment imposed by him. The Supreme Court in Christian Medical College Hospital Employees' Union and another v. Christian Medical College, Vellore, Association and others, (1988-I-LLJ-263) while dealing with the scope of the powers of the Labour Courts and Industrial Tribunal under section 11-A, in para 14 of the judgment observed;
'Section 11-A which has been introduced since then into the Act which confers the power on the Industrial Tribunal or the Labour Court to constitute a lesser punishment in lieu of the order of discharge or dismissal passed by the management again cannot be considered as conferring an arbitrary power on the industrial tribunal or the labour court. The power under section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of the management under section 11-A of the 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. The decision of the Industrial Tribunal or the Labour Court is again as already said, subject to Judicial review by the High Court and this Court.' The power of Industrial Tribunal Tribunal or the Labour Court under the Industrial Disputes Act is not uncanalized, unguided and unlimited. It cannot, therefore, be said that the Industrial Tribunal or the Labour Court will function arbitrarily and interfere with every decision of the management as regards dismissal or discharge of a workman arrived at in a disciplinary enquiry.
In view of observations made by apex court and Andhra Pradesh High Court as referred to above and also considering submissions made by both learned advocates and also keeping in mind the fact that only charge no.3 of not to inform higher officer immediately about registration of criminal offence against workman has been proved but it was informed little late by workman and subsequently workman has been given acquittal by competent criminal court and against that decision of acquittal, no appeal has been preferred by any party including State Government, in light of this back ground, labour court has rightly exercised discretionary powers vested in him and has rightly granted relief of reinstatement with continuity of service and has rightly denied back wages for interim period by way of punishment which comes to about nine years, which being sufficient punishment to him, therefore, according to my opinion, it being balanced award passed by labour court in exercise of powers under sec. 11-A of ID Act, 1947, labour court has not committed any error in exercising such power which require interference of this court in exercise of powers under Article 227 of Constitution of India. [State of Haryana v. Manoj Kumar reported in 2010 AIR SCW 1990 decided on 9th March 2010.] Award of reinstatement has been passed by labour court on 28.10.2002. Therefore, workman is entitled for being reinstated from that date onward but he was not reinstated in service because of stay granted by this court against reinstatement and, therefore, last drawn wages have been paid to workman by corporation for interim period from date of award till this date.
Therefore, it is directed to petitioner Corporation to reinstate respondent workman immediately with continuity of service and to pay him regular wages after fixing his salary on the basis of continuity of service and thereafter whatever wages come, after fixation of it in between as per settlement or pay revision and thereafter deduct whatever last drawn wages paid by corporation to workman and remaining amount is to be paid by corporation to workman within three months from date of reinstatement of workman in service. It is also directed to petitioner corporation to reinstate respondent workman in service with continuity of service within one month from date of receiving copy of present order and thereafter within period of three months, to pay difference of salary between regular salary which has to be fixed as per directions issued by this court after deducting last drawn wages paid to workman without fail.
In view of above observations made by this Court, there is no substance in both petitions and accordingly, both petitions are dismissed. Rule is discharged in both petitions with no order as to costs. Interim relief granted by this court in Special Civil Application No. 3979 of 2004 stands vacated with immediate effect.
In view of orders passed by this court in both petitions today, Civil Application NO. 1552 of 2004 and Civil Application No. 2055 of 2006 are also accordingly disposed of with no order as to costs.
(H.K. Rathod,J.) Vyas Top