Karnataka High Court
Management Of Bharat Earth Movers Ltd vs Mr G Jayaprakash on 12 July, 2023
1
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WP No. 58158 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.58158 OF 2015 (L-RES)
BETWEEN:
MANAGEMENT OF BHARAT EARTH MOVERS LTD.,
NOW BEML LTD.,
BANGALORE COMPLEX,
NEW THIPPASANDRA POST,
BANGALORE - 560 075.
REPRESENTED BY ITS
SENIOR MANAGER (LEGAL)
SMT. DIVYA B.
AGED 43 YEARS. ... PETITIONER
(BY SRI NARASIMHA SWAMY N.S., ADVOCATE)
AND:
MR. G. JAYAPRAKASH
S/O. LATE GOVINDAPPA,
AGED ABOUT 58 YEARS,
Digitally signed RESIDING AT NO.38,
by SHYAMALA KODIHALLI, HAL 2ND STAGE,
Location: HIGH BANGALORE - 560 008. ... RESPONDENT
COURT OF
KARNATAKA (BY SRI K.B. NARAYANASWAMY, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED AWARD DATED 24.07.2015 PASSED BY THE SECOND
ADDITIONAL LABOUR COURT, BANGALORE IN I.D.NO.5/2008
(ANNEXURE-K).
THIS WRIT PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 58158 of 2015
ORDER
The management is assailing the impugned award dated 24.07.2015 passed in ID.No.5/2008 by the II Addl.
Labour Court, Bangalore (Annexure - "K"), whereby, the claim petition filed by the workman under Section 10(4-A) read with Section 2-A of the (Karnataka Amendment) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the ID Act" for the sake of convenience) came to be allowed substituting the order of dismissal by imposing reduction of salary by one stage in his existing pay scale -
and the petitioner - management was directed to reinstate the respondent - workman with all other consequential benefits.
2. The petitioner herein is referred to as the management and the respondent as workman for the sake of convenience.
3. Brief facts of the case are that, the workman was working as a Mechanic, Wage Group - B and during the year 2006-07, the management issued two charge 3 NC: 2023:KHC:24210 WP No. 58158 of 2015 sheets for different misconducts committed by him. The first charge sheet dated 17.11.2006 was with regard to "sleeping while on duty" and for "possession of mobile phone in the factory premises" and the second charge sheet dated 09.01.2007 was issued for "habitual late coming/early going during the years 2004, 2005 and 2006". The workman replied to the said charge sheets and denied the charges levelled against him. The Enquiry Officer was appointed and after two separate detailed enquiry, the Enquiry Officer submitted his report holding that the charges levelled against the workman were proved. The Disciplinary Authority, evaluating the material placed before it, accepted the enquiry report and imposed the punishment of "removal from service, which does not disqualify from future employment" vide order dated 02.08.2007. The workman filed claim statement in ID.No.5/2008 and the management filed counter statement.
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4. The Labour Court by way of impugned order set aside the order of removal from service and directed reinstatement with back wages and consequential benefits.
However, imposed punishment on the workman by reducing salary by one stage in his existing pay scale.
Aggrieved by which the present petition by the management.
5. Heard Sri Narasimha Swamy N.S., learned counsel for the petitioner - management and Sri K.B.Narayanaswamy, learned counsel for the respondent -
workman as well as perused the material on record.
6. Learned counsel for the petitioner would submit that
(i) The Labour Court has placed reliance on the instances of other workmen to pass the impugned order and that the said instances of the other workmen were not applicable to the present workman;
(ii) The Labour Court has interfered with the order of removal passed by the Disciplinary Authority without 5 NC: 2023:KHC:24210 WP No. 58158 of 2015 there being any perversity or victimization on the party of the management and the interference by the Labour Court is beyond the scope of Section 11A of the Industrial Disputes Act, 1947 ("the ID Act" for short);
(iii) Workman has admitted charge No.2 that he was habitual late coming and leaving the work place early and that was sleeping while on duty as is evident from his reply vide Annexure - D, he pleaded that he would mend his ways and he would assure that he will be more vigilant while on duty and the Labour Court had lost sight of the said aspect of the matter and the impugned order is not justified.
(iv) According to the learned counsel for the petitioner, no reason has been assigned by the Tribunal while setting aside the order of removal and imposing minor punishment, the Tribunal has not held that the punishment was disproportionate or proportionate while passing the impugned award, in the absence of the same, the order of the Tribunal is unsustainable.
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7. Per contra, learned counsel appearing for the respondent would justify the order passed by the Labour Court on the following ground:
(i) The workman at the first instance itself has denied the charges leveled against the workman and the Disciplinary Authority without considering the said aspect has passed the impugned order of punishment directing the workman to be removed from service.
(ii) The reply at Annexure - D insofar as charge No.2 is concerned, the workman was late to work has specifically stated as to why the workman was unable to attend the work on time and he had sought to condone the same and the same cannot be accepted to have been admitted regarding charge No.2 against the workman.
(iii) The Tribunal, exercising the power under Section 11A of the ID Act, has rightly imposed minor punishment by looking into the misconduct and the proportionality of punishment ordered by the Disciplinary Authority. In support of his contention, learned counsel has relied upon the following judgments:7
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(a) K.V.S. Ram vs. Bangalore Metropolitan Transport Corporation [AIR SC 998] (para No.15);
(b) LIC of India vs. R. Dhandapani [(2006) 13 SCC 613];
(c) Colour-Chem Ltd. vs. A.L. Alaspurkar & others [(1998)3 SCC 192];
(d) Sengara Singh & others vs. State of Punjab & others [(1983) 4 SCC 225];
(e) Poonacha vs. New Government Electric Factory [1986 ILR 3181]
8. Having heard learned counsel for the petitioner and learned counsel for the respondent, the only point that arises for consideration is, Whether the order passed by the Tribunal under Section 11A of the ID Act is beyond the scope, is justified in the facts and circumstances of the case?
9. The undisputed facts are that the petitioner was working as a Mechanic, Wage Group - B and during the year 2006-07, on 14.11.2006, he was assigned duty in the 8 NC: 2023:KHC:24210 WP No. 58158 of 2015 first shift and that the following charges were leveled against the respondent - workman:
"Clause 21.34 : "Sleeping while on duty"
Clause 21.25 : "Negligence or neglect of duty...." Clause 21.3 : "Breach of Standing Orders or rules Or any law applicable to the Establishment"
Punishable under Clause 22 of the Company's Standing Order."
On 09.01.2007, another charge sheet was issued by the management to the respondent-workman as under:
"Clause 21.21 -"Habitual late attendance or leaving of Work before due time or absence from place of work without due permission".
10. On 23.11.2006, the workman submitted his reply to the said charge sheets stating that, on 14.11.2006, he was attending to the job assigned to him at coach No.6806, Model No.816, along with other five members, he was actually tightening the nuts beneath the lower berth seat. Meanwhile around 9.45 a.m., when the senior executive approached the workman and took his staff number asking that he was sleeping. But to avoid the 9 NC: 2023:KHC:24210 WP No. 58158 of 2015 burrs, dust and glass wool on the coach, he was using carton sheet beneath the lower berth seat, which was misunderstood by the senior executive that he was sleeping on the carton sheet. After completion of work assigned, the matter has been duly reported to the incharge concerned on the same day, on which day, due to medical problem of his mother, he had to bring the mobile phone, whereby, he was expecting call from his mother who was admitted at Hosmat Hospital as she was suffering from acute diabetic affected leg disease. However, on service of the charge sheet, on 29.01.2007, the workman submitted another explanation to the second charge sheet through proper channel stating that on account of escalating health problems in the family circle, and mother's ill health he was forced to attend to such problems which forced him to be away from the duties resulting in coming late to work and leaving work before due time, but the same was not intentional.
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11. Though the workman has specifically stated about the health problems in the family and mother's ill health due to which he was coming late to work, the management has held that the workman has admitted about the second charge and the impugned order of punishment was passed by the Disciplinary Authority directing removal of the workman from service. The Labour Court by the impugned order held that the misconduct and the proportionality of punishment is not proper as per Section 11A of the ID Act. Section 11A reads as under:
"11A. Powers of Labour Courts, Tribunals and Nationl 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 workman has been referred to the discharge or dismissal of a workman 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 11 NC: 2023:KHC:24210 WP No. 58158 of 2015 satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman 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:
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."
12. It is settled proposition of law that while considering the decision of the management terminating the workman, the Labour Court can interfere with the decision of the management when the punishment imposed is highly disproportionate to the degree of guilt of the workmen concerned. At this stage, it is relevant to consider that subsequent to the order of dismissal passed by the Disciplinary Authority, an inter-office memo came to be issued vide Annexures - H and J dated 06.08.2008 12 NC: 2023:KHC:24210 WP No. 58158 of 2015 and 26.08.2008 respectively, wherein it is mentioned at para No.3 as under:
"3. In order to uniformly deal all such cases i,e., of 'sleeping while on duty', henceforth the following system is proposed to be brought into force so as to ensure that the employees carryout their duties sincerely.
Act of Misconduct Action to be taken
If reported 'sleeping while on
duty:
1st Instance 01 day suspension with show cause
2nd instance notice
3rd Instance 02 days suspension with charge sheet
4th Instance 03 days suspension with charge sheet
Suspension pending disposal of
disciplinary action
In case of repeated Instances of 'Removal from Service' after following
'sleeping while on duty' due disciplinary procedure
13. This inter office memo came to be issued subsequent to the order of dismissal by the Disciplinary Authority is not in dispute. What can be gathered from the inter office memo at Annexures - H and J is that, when found sleeping while on duty at the first instance, there could be minor punishment and on repeated instances of sleeping while on duty, the course could only then be "removal from service after following disciplinary procedure". Though this inter office memo came to be 13 NC: 2023:KHC:24210 WP No. 58158 of 2015 issued on 06.08.2008 after the order of removal of the workman from the service, it would be necessary to state here that the workman was issued with charge memo only for one instance and the Disciplinary Authority has gone to the extent of removing the workman from service, the other charge memos are in respect of habitual late coming and early going and the workman has tendered his explanation. In the event the Disciplinary Authority or the management comes to the conclusion that he was coming late to work and going early, he has assigned reasons for the same and sought for apology. The Labour Court considering and exercising the power under Section 11A, has interfered with the order of the Labour Court on the ground that the punishment found to be certainly disproportionate to the degree of guilt of the workman.
14. The other reasons assigned by the Tribunal is that the similarly placed workman were given lesser punishment for the same charges which were as issued to the workman herein and considering the material at 14 NC: 2023:KHC:24210 WP No. 58158 of 2015 Exs.W.5 to W.10 has held that the punishment is disproportionate to the guilt of the workman. The Apex Court in the case of K.V.S. RAM VS. Bangalore Metropolitan Transport Corporation [AIR 2015 SC 998] at para Nos.10, 11 and 15 held as under:
"10. It is settled proposition of law that while considering the management's decision to dismiss or terminate the services of a workman, the Labour Court can interfere with the decision of the management only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. Considering the delay in completing the enquiry and the age of the appellant and the fact that similarly situated workmen were reinstated with lesser punishment, the Labour Court ordered reinstatement, in exercise of its discretion under Section 11A of the Industrial Disputes Act.
11. In the Writ Petition, while setting aside the award of the Labour Court, learned Single Judge placed reliance upon the judgment of this Court passed in the case of Punjab Water Supply Sewerage Board & Anr. vs. Ramsajivan & Anr., reported in 2007 (2) SCC (L&S) 668 = (2007) 9 SCC 86 and also another judgment of the High Court and observed that a 15 NC: 2023:KHC:24210 WP No. 58158 of 2015 person who practices fraud for securing employment cannot perpetuate on the ground of delay and the learned Single Judge faulted the Labour Court for exercising discretion under Section 11A of the Industrial Disputes Act and interfering with the punishment of dismissal from service. In our considered view, in exercise of its power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the Tribunal, only, when there has been a patent perversity in the orders of tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. In our view, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court.
xxx xxx xxx
15. Once the Labour Court has exercised the discretion judicially, the High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws. We do not find that the award passed by the Labour Court suffers from any such flaws. While interfering with the award of the Labour Court, the High Court 16 NC: 2023:KHC:24210 WP No. 58158 of 2015 did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution of India and the impugned judgment cannot be sustained."
In another judgment in the case of LIC of India vs. R. Dhandapani [(2006) 13 SCC 613] at para Nos.7 to 11 held as under:
"7. It is not necessary to go into in detail regarding the power exercisable under Section 11-A of the Act. The power under said Section 11- A has to be exercised judiciously and the Industrial Tribunal or the Labour Court, as the case may be, is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that punishment imposed by the management is wholly and shockingly disproportionate to the degree of guilt of the workman concerned. To support its conclusion the Industrial Tribunal or the Labour Court, as the case may be, has to give reasons in support of its decision. The power has to be exercised judiciously and mere use of the words 'disproportionate' or 'grossly disproportionate' by itself will not be sufficient.17
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8. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. [See: Kerala Solvent Extractions Ltd. v. A. Unnikrishnan and Anr. [1994 (1) SCALE]
9. Though under Section 11-A, the Tribunal has the power to reduce the quantum of punishment it has to be done within the parameters of law. Possession of power is itself not sufficient; it has to be exercised in accordance with law.18
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10. The High Court found that the Industrial Tribunal had not indicated any reason to justify variations of the penalty imposed. Though learned counsel for the respondent tried to justify the Award of the Tribunal and submitted that the Tribunal and the learned Single Judge have considered the case in its proper perspective, we do not find any substance in the plea. Industrial Tribunals and Labour Courts are not forums whose task is to dole out private benevolence to workmen found by Labour Court/Tribunal to be guilty of misconduct. The Tribunal and the High Court, in this case, have found a pattern of defiance and proved misconduct on not one but on several occasions. The compassion which was shown by the Tribunal and unfortunately endorsed by learned single Judge was fully misplaced.
11. In the aforesaid background the Division Bench of the High Court was wholly unjustified in giving directions contained in paragraph 20 of its order, having set aside the award of the Tribunal as affirmed by learned Single Judge. The High Court has not even indicated as to under what provision of law and/or statutory enactment or Regulation or Scheme, pension was payable to the respondent. On the contrary, the Pension Rules and the Scheme referred to above clearly justified the stand of the 19 NC: 2023:KHC:24210 WP No. 58158 of 2015 appellant that the respondent was not entitled to receive any pension or benefit under the scheme."
In the similar circumstance, the Apex Court in the case of Colour Chem Ltd. vs. A.L.Alaspurkar & others [(1998) 3 SCC 192] at para Nos.11, 13 and 14 held as under:
"11. Learned Senior Counsel for the respondents was right when she contended that this being a labour welfare legislation liberal construction should be placed on the relevant provisions of the Act. She rightly invited our attention to para 41 of the Report of the aforesaid case in this connection. She also invited our attention to a decision of this Court in the case of Workmen v. Firestone Tyre and Rubber Co. of India (P) Ltd. [(1973) 1 SCC 813 : 1973 SCC (L&S) 341] especially the observations made in para 35 of the Report. It has been observed therein that if two constructions are reasonably possible to be placed on the section, it follows that the construction which furthers the policy and object of the Act and is more beneficial to the employee, has to be preferred. But it is further observed in the very said para that there is another canon of interpretation that a statute or for that matter even a particular section, has to be interpreted according to its plain words and without 20 NC: 2023:KHC:24210 WP No. 58158 of 2015 doing violence to the language used by the legislature. In our view, clause (g) of Item 1 of Schedule IV of the Act is not reasonably capable of two constructions. Only one reasonable construction is possible on the express language of clause (g), namely, that it seeks to cover only those types of unfair labour practices where minor misconduct or technical misconduct has resulted in dismissal or discharge of delinquent workmen and such punishment in the light of the nature of misconduct or past record of the delinquent is found to be shockingly disproportionate to the charges of minor misconduct or charges of technical misconduct held proved against the delinquent. The one and only subject-matter of clause (g) is the misconduct of minor or technical character. The remaining parts of the clause do not indicate any separate subject- matter like the major misconduct. But they are all adjuncts and corollaries or appendages of the principal subject, namely, minor or technical misconduct which in a given set of cases may amount to resulting in a shockingly disproportionate punishment if they are followed by discharge or dismissal of the delinquent. The first point, therefore, will have to be answered in the negative in favour of the appellant and against the respondent- delinquents.
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13. The term "victimisation" is not defined by the present Act. Sub-section (18) of Section 3 of the Act which is the definition section lays down that:
"Words and expressions used in this Act and not defined therein, but defined in the Bombay Act, shall, in relation to any industry to which the provisions of the Bombay Act apply, have the meanings assigned to them by the Bombay Act; and in any other case, shall have the meanings assigned to them by the Central Act".
Bombay Act is the Bombay Industrial Relations Act, 1946 and the Central Act is the Industrial Disputes Act, 1947 as laid down by definition Sections 3(1) and 3(2) of the Act. The term "victimisation" is defined neither by the Central Act nor by the Bombay Act. Therefore, the term "victimisation" has to be given general dictionary meaning. In Concise Oxford Dictionary, 7th Edn., the term "victimisation" is defined at p. 1197 as follows:
"make a victim; cheat; make suffer by dismissal or other exceptional treatments."
Thus if a person is made to suffer by some exceptional treatment it would amount to 22 NC: 2023:KHC:24210 WP No. 58158 of 2015 victimisation. The term "victimisation" is of comprehensive import. It may be victimisation in fact or in law. Factual victimisation may consist of diverse acts of employers who are out to drive out and punish an employee for no real reason and for extraneous reasons. As for example a militant trade union leader who is a thorn in the side of the management may be discharged or dismissed for that very reason camouflaged by another ostensibly different reason. Such instances amount to unfair labour practices on account of factual victimisation. Once that happens clause (a) of Item 1 of Schedule IV of the Act would get attracted, even apart from the very same act being covered by unfair labour practices envisaged by clauses (b), (c), (d) and (e) of the very same Item 1 of Schedule IV. But it cannot be said that clause (a) of Item 1 which deals with victimisation covers only factual victimisation. There can be in addition legal victimisation and it is this type of victimisation which is contemplated by the decision of this Court in Hind Construction [AIR 1965 SC 917 : (1965) 2 SCR 85 : (1965) 1 LLJ 462] . It must, therefore, be held that if the punishment of dismissal or discharge is found shockingly disproportionate by the Court regard being had to the particular major misconduct and the past service record of the delinquent or is such as no reasonable employer could ever impose in like circumstances, it 23 NC: 2023:KHC:24210 WP No. 58158 of 2015 would be unfair labour practice by itself being an instance of victimisation in law or legal victimisation independent of factual victimisation, if any. Such an unfair labour practice is covered by the present Act by enactment of clause (a) of Item 1 of Schedule IV of the Act as it would be an act of victimisation in law as clearly ruled by this Court in the aforesaid decision. On the same lines is a latter decision of this Court in the case of Bharat Iron Works v. Bhagubhai Balubhai Patel [(1976) 1 SCC 518 : 1976 SCC (L&S) 92 : (1976) 2 SCR 80] wherein a Bench of three learned Judges speaking through Goswami, J. laid down the parameters of the term "victimisation" as understood in labour laws and as contemplated by industrial jurisprudence. It has been observed that ordinarily a person is victimised if he is made a victim or a scapegoat and is subjected to persecution, prosecution or punishment for no real fault or guilt of his own. If actual fault or guilt meriting punishment is established, such action will be rid of the taint of victimisation. The aforesaid observations obviously refer to factual victimisation. But then follows further elucidation of the term "victimisation" to the following effect: (SCR Headnote) "Victimisation may partake of various types, as for example, pressurising an 24 NC: 2023:KHC:24210 WP No. 58158 of 2015 employee to leave the union or union activities, treating an employee in a discriminatory manner or inflicting a grossly monstrous punishment which no rational person would impose upon an employee and the like."
The aforesaid observations in this decision fall in line with the observations in the earlier decision of this Court in Hind Construction [AIR 1965 SC 917 : (1965) 2 SCR 85 : (1965) 1 LLJ 462] . Consequently it must be held that when looking to the nature of the charge of even major misconduct which is found proved if the punishment of dismissal or discharge as imposed is found to be grossly disproportionate in the light of the nature of the misconduct or the past record of the employee concerned involved in the misconduct or is such which no reasonable employer would ever impose in like circumstances, inflicting of such punishment itself could be treated as legal victimisation. On the facts of the present case there is a clear finding reached by the Labour Court and as confirmed by the Industrial Court that the charges levelled against the respondent-delinquents which were held proved even though reflecting major misconducts, were not such in the light of their past service record as would merit imposition of punishment of dismissal. This factual finding would obviously attract the conclusion that by 25 NC: 2023:KHC:24210 WP No. 58158 of 2015 imposing such punishment the appellant-management had victimised the respondent-delinquents. Imposition of such a shockingly disproportionate punishment by itself, therefore, has to be treated as legal victimisation apart from not being factual victimisation as on the latter aspect the Labour Court has held against the respondent-workmen and that finding has also remained well sustained on record. Thus it must be held that the management even though not guilty of factual victimisation was guilty of legal victimisation in the light of the proved facts which squarely attracted the ratio of the decisions of this Court in Hind Construction [AIR 1965 SC 917 : (1965) 2 SCR 85 :
(1965) 1 LLJ 462] and Bharat Iron Works [(1976) 1 SCC 518 : 1976 SCC (L&S) 92 : (1976) 2 SCR 80] . It is easy to visualise that no reasonable management could have punished a delinquent workman who in the late hours of the night shift by about 3.30 a.m. had gone to sleep keeping the machine in a working condition especially in the absence of any gross misconduct reflected by the past service record, with the extreme penalty of dismissal. It is also interesting to note that this was a peculiar case in which the Plant-
in-Charge found during his surprise visit at 3.30 a.m. in the early hours of the dawn the entire work force of 10 mazdoors and 2 operators like the respondents and the supervisor all asleep. It is also pertinent to note that so far as the 10 mazdoors were concerned they were let 26 NC: 2023:KHC:24210 WP No. 58158 of 2015 off for this very misconduct by a mere warning while the respondents were dismissed from service. It is, of course, true that the respondents were assigned more responsible duty as compared to the mazdoors, but in the background of the surrounding circumstances and especially in the light of their past service record there is no escape from the conclusion that the punishment of dismissal imposed on them for such misconduct was grossly and shockingly disproportionate, as rightly held by the Labour Court and as confirmed by the revisional court and the High Court. By imposing such grossly disproportionate punishment on the respondents the appellant-management had tried to kill a fly with a sledgehammer. Consequently it must be held that the appellant was guilty of unfair labour practice. Such an act was squarely covered by clause (a) of Item 1 of Schedule IV of the Act being legal victimisation, if not factual victimisation. The ultimate finding of the Labour Court about maintainability of the complaint can be supported on this ground. The second point is answered in the affirmative against the appellant and in favour of the respondent-workmen.
14. So far as this point is concerned it has to be held that when the punishment of dismissal was shockingly disproportionate to the charges held proved against them reinstatement with continuity of service was the least that could have been ordered in their favour. There 27 NC: 2023:KHC:24210 WP No. 58158 of 2015 is no question of the appellant losing confidence in them. In this connection learned Senior Counsel for the appellant tried to submit that apart from going to sleep in the early hours of the morning when the night shift was coming to a close the machine was kept working and that would have created a hazard for the working of the plant and the possibility of an explosion was likely to arise. So far as this contention is concerned it must be stated that this was not the case of the management while framing the charge-sheets against the workmen. Not only that, there is not a whisper about the said eventuality and possibility in the evidence led by the management before the Labour Court. But that apart no such contention, even though mentioned in the written objections before the Labour Court, was ever pressed into service for consideration before the Labour Court at the stage of arguments, nor any decision was invited on this aspect. No such contention was also canvassed by the appellant in revision before the Industrial Court or before the High Court. This contention, therefore, must be treated to be clearly an afterthought and appears to have been rightly given up in subsequent stages of the trial by the management itself. All that was alleged by its witness before the Court was that because of the respondents going to sleep and allowing the machine to work without pouring raw material therein the production went down to some extent. That has nothing to do with the working of the unattended machine 28 NC: 2023:KHC:24210 WP No. 58158 of 2015 becoming a hazard or inviting the possibility of any explosion. Under these circumstances and especially looking to the past service record of the respondents it could not be said that the management would lose confidence in these workmen. The work which they were doing was not of any confidential nature which an operator has to carry out in the plant. It was a manual work which could be entrusted to anyone. Consequently the submission of learned Senior Counsel for the appellant, that in lieu of reinstatement compensation may be awarded to the respondents, cannot be countenanced. It must, therefore, be held that the Labour Court was quite justified in ordering reinstatement of the respondent-workmen with continuity of service. However because of the misconduct committed by them, of sleeping while on duty in the night shift the Labour Court has imposed the penalty of depriving the workmen, Respondents 3 and 4 respectively, of 60% and 50% of the back wages. After the award they have been granted 100% back wages till reinstatement. But, in our view, as Respondents 3 and 4 went to sleep while on duty and that too not alone but in the company of the entire staff of 10 mazdoors, they deserve to be further punished by being deprived of at least some part of their back wages even after the award of the Labour Court till actual reinstatement. Interest of justice would be served, in our view, if Respondent 3 is directed to be paid only 40% of the 29 NC: 2023:KHC:24210 WP No. 58158 of 2015 back wages even after the award of the Labour Court till actual reinstatement pursuant to our present order. Similarly Respondent 4 will be entitled to only 50% back wages even after the date of the Labour Court's award till actual reinstatement as per the present order. In addition thereto, the appellant-management will be entitled to give written warnings to both these respondents when they are reinstated in service not to repeat such misconduct in future. The imposition of this type of additional penalty, in our view, would be sufficient in the facts and circumstances of the case and will operate as a suitable corrective for the respondent- employees. They have suffered enough since more than 14 years. They are out of service for all these 14 years. At the time when they went to sleep in the night shift they were pretty young. Now they have naturally grown up in age and with the passage of years more maturity must have dawned on them. Under these circumstances the cut in the back wages as imposed by the Labour Court and as further imposed by us would be quite sufficient to act as a deterrent for them so that such misconduct may not be committed by them in future. The third point is answered as aforesaid by holding that the order of reinstatement is justified but the order of back wages as ordered by the Labour Court requires to be modified to the aforesaid extent."
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15. In the present case, the Labour Court, exercising the power under Section 11A of the ID Act, interfered with the decision of the Disciplinary Authority having found that the punishment imposed by the management is wholly shocking and disproportionate to the misconduct of the workman concerned and imposed lesser punishment which does not call for interference
16. In light of the reasons stated supra, the point framed for consideration needs to be answered in favour of the workman and this Court pass the following:
ORDER
(i) Writ petition is dismissed.
(ii) The impugned order passed by the Labour Court stands confirmed.
Sd/-
JUDGE S*