Bombay High Court
Colour-Chem. Limited And Ors. vs A.L. Alsapurkar, Member, Industrial ... on 13 September, 1991
Equivalent citations: (1993)IIILLJ838BOM
JUDGMENT B.N. Srikrishna, J.
1. These are two cross petitions impugning the orders of the Labour Court, Thane dated 31st December, 1987, and the order of the Industrial Court, Thane dated June 27, 1989, made under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act). Though these petitions are described as petitions under Articles 226 and 227 of the Constitution of India, in my view, the relief prayed for can be substantially granted under Article 227 and I have entertained them as such.
2. Since these are cross petitions, instead of referring to the parties as petitioners and respondents, the petitioner in Writ Petition No. 3863 of 1989 shall be henceforth referred to as 'the employer' and the respondents 3 and 4 as 'the workmen'.
3. The employer is a company manufacturing pigments, dyestuffs, intermediates for pesticides and chemicals etc. at its factory at Thane. The workmen were employed as Operators in the Mill Plant Department of the Employer's Factory. The workmen were served with charge-sheets dated 18th May, 1982, in which it was alleged against them that while working in the shift from 10.00 P.M. to 6.00 A.M. during the night of 5th/6th May, 1982, at around 3.30 A.M. when the plant incharge was taking round in the plant, he noticed that the two workmen, who were Operators, the eight Mazdoors attached to that section and the Supervisor were absent from the Department. He further noticed that these persons were fast asleep on the adjoining terrace lying on a piece of filter cloth spread on the floor. The plant incharge noticed that though there was no material being fed into the Mill, the machines were running without operators incharge of them. An inquiry was held into the charges levelled against the two workmen. By order dated 4th June, 1983, the employer dismissed the two workmen by taking the view that the charges had been proved at the domestic enquiry, that considering the seriousness of the charges and considering the past record of the workmen which contained no extenuating circumstances, it had been decided to dismiss each of the workmen from service. The workmen challenged their respective dismissal orders by their Complaint (ULP) Nos. 104 and 105 of 1983, which were moved under Section 28 read with Item 1(a), (b), (d), (f) and (g) of Schedule IV of the Act. The Labour Court, in the first instance, went into the issue as to whether the domestic enquiry held against the concerned workmen was valid, legal and proper. By an order dated 31st December, 1987 the Labour Court recorded its conclusion that the domestic enquiries held against the workmen were vitiated on account of several reasons. This order was challenged by the employer before this Court and I am informed that the writ petition of the employer was summarily rejected. The Labour Court then recorded evidence on the merits of the charges, at the instance of the parties. Upon appreciation of the evidence recorded on the merits of the charge, the Labour Court came to the conclusion that the facts alleged against the two workmen were true. It found that, on the day in question, at the material time, they were fast asleep on the terrace in the company of the ten Mazdoors and the supervisor. The Labour Court took the view that no unfair labour practice within the meaning of Clauses (a),(b),(d) and (f) of Item 1 of Schedule IV had been proved. It, however, came to the conclusion that an unfair labour practice within the meaning of Clause (g) often 1 or Schedule IV of the Act had been proved as, in its view, though sleeping while on duty by itself could not be described as a misconduct of a minor or technical nature, when the miconduct had been committed by all the ten employees in the Department including the supervisor en masse, the misconduct was of a serious nature. The Labour Court then went on to consider whether regard had been had by the employer to the nature of this specific misconduct and the past record of the workmen. After analysing the evidence on record, the Labour Court came to the conclusion that the punishment of dismissal imposed upon the workmen was, without his regard to the nature of the particular misconduct or the past record or the service of the employee so as to amount shockingly disproportionate punishment. That the Labour Court concluded that the unfair labour practice under Clause (g) of Item 1 of Schedule IV of the Act was made out. When it came to the question of giving relief, the Labour Court reinstated the two workmen, but declined to grant them full back wages as it had arrived at the conclusion that each of them was guilty of the misconduct to some extent. It directed payment of 40 per cent backwages to the workman. Arjunsingh and 50 per cent backwages to the workman Vishwanath. Both employer and the workmen moved revision applications before the Industrial Court against the order of the Labour Court. The Industrial Court, broadly agreeing with the reasoning of the Labour Court, dismissed both the revision applications. The employer has challenged the order of the Labour Court directing reinstatement with a part of the back wages to each of the workmen while the workmen have challenged the denial of full back wages to them, by these two cross writ petitions.
4. Mr. Rele, learned Advocate for the employer, strenuously urged that the Labour Court had acted in excess of the jurisdiction vested in it. He contended that the Labour Court, on the material before it, could not have come to a finding that there was unfair labour practice within the meaning of Clause (g) of Item 1 of Schedule IV of the Act. He submitted that the construction put upon this relevant clause by the Labour Court is erroneous and, by taking an erroneous view of the law, the Labour Court had misdirected itself and exercised jurisdiction which it did not possess under the Act. Mr. Rele canvassed that, upon a proper construction of Clause (g) of Item 1 of Schedule IV of the Act, a finding as to unfair labour practice can be arrived at only upon a conjunctive finding of all the factors enumerated therein, together with the additional finding that the punishment is shockingly disproportionate. Mr. Rele relied on the observations of this Court in Maharashtra State Road Transport Corporation v. Niranjan Shridhar Gade and Anr. 1985 MLJ, 983 in support of his contention that Clause (g) of Item 1 of Schedule IV of the Act could never come into play unless misconduct was of a minor or technical nature. Mr. Rele's contention is that afinding of an unfair labour practice under Item 1 (g) of Schedule IV to the Act can be arrived at only if there is a discharge or dismissal of an employee for a misconduct of a minor or technical character without regard being had to the nature of the specific misconduct or the past record of the employee and, to top it all, the Court finds that the punishment is shockingly disproportionate.
5. It would be necessary to reproduce the relevant clause to facilitate appreciation of the contention. Read in the full context of Item 1 of Schedule IV of the Act, Clause (g) would read as under:
" 1. To discharge or dismiss employee-(g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to shockingly disproportionate punishment".
In my view, it is not possible to accept the extreme contention canvassed by Mr. Rele. There is no indication to this effect in the section that the four clauses used in Clause (g) must necessarily be read together before a finding of unfair labour practice thereunder could be made. I am not inclined to accept the contention of Mr. Rele that the judgment in Niranjan Gade's case (supra) has concluded the issue. The observations of this Court in Paragraph 11 of the judgment do not lay down the proposition of law canvassed by Mr. Rele. In that case, an argument was made that on facts Item 1 (g) was attracted as the punishment was for misconduct of a minor or technical character and this argu-ment was rightly rejected on the facts. It cannot be gainsaid that this clause is intended to operate in a situation where the punishment imposed upon an employee found guilty of misconduct is shockingly disproportionate. This concept of "shockingly disproportionate" was very fami-liar in industrial jurisprudence. Despite limited powers available to an Industrial Adjudicator before the introduction of Section 11-A into the Industrial Disputes Act, 'shockingly disproportionate punishment' was one ground on which an Industrial Adjudicator could have interferred with the order of dismissal or other punishment imposed upon an erring employee. By a series of judgments, of which the decision of the Supreme Court in Hindi Construction and Engineering Company Ltd. v. Their Workmen 1965 I LLJ 462 and that of our High Court in Sarabhai M. Chemicals, (S.M. Chemicals and Electronics Ltd), Bombay v. M.S. Ajmere and Anr. 1982 LIC 97, are notable, this proposition of law was well settled. The Supreme Court, in Hindi Construction 's case (supra), elucidated the concept of "shockingly disproportionate" punishment in the following words :
"But where the punishment is shockingly disproportionate to, regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimisation or unfair labour practice".
A Division Bench of this Court, in Sarabhai M. Chemicals' case (supra), following the judgment of the Supreme Court pointed out that the Tribunal was not required to consider the 'propriety or adequacy' of the punishment or whether it was 'excessive' or 'too severe' and that in case the punishment is shockingly disproportionate, regard being had to the particular conduct of the workmen, the test being that no reasonable employer would ever impose such punishment in like circumstance, then alone the Tribunal would be entitled to treat the punishment as amounting to victimisation or unfair labour practice.
6. It is an elementary principle of construction of a statute that the legislature must be deemed to be averse of all the law as laid down by the Courts upto the date of the enactment of the statute under interpretation. Hence, while interpreting the words "shockingly disproportionate punishment'' used in Item 1 (g) of Schedule IV of the Act, we cannot ignore the body of the case law on the subject which had developed till the enactment of the Act in 1971. The judgment of the Supreme Court in Hind Construction's case (supra) and of this Court in Sarabhai Chemical's case lay down the test of what is ''shockingly disproportionate punishment''. The key words are "shockingly" and "disproportionate". Something would be shocking only if it drastically deviates from accepted norms of behaviour. The punishment would therefore be shockingly disproportionate if the factors, which are reasonably required to be considered for punishment by normal employers, have been disregarded. This is precisely the test postulated by the Supreme Court in Hind Constru -ction's case (supra). This very familiar concept has been incorporated in Clause (g) of Item 1 of Schedule IV of the Act. Hence, I am unable to accept the extreme contention canvassed by Mr. Rele that each oneof the clauses of Item 1 (g) of Schedule IV of the Act has to be read conjunctively with the other before a finding of unfair labour practice can be arrived at. In my view, a better reading of this section would be the one which is harmonious with and assimilates the principle enunciated by the Supreme Court in Hindi Construction's case (supra). It is possible that a punishment may be imposed for misconduct of a minor or technical nature and this, per se, may amount to shockingly disproportionate punishment. If, however, the misconduct proved is neither minor, nor technical, the punishment has to be judged in the light of what a reasonable employer would have done in the circumstances. A reasonable employer would have balanced several conflicting factors before taking the decision to impose the extreme penalty of dismissal or discharge by way of punishment. [What the factors are is indicated in Item 1(g) of Schedule IV of the Act.] The factors are : (a) the nature of the particular misconduct proved and (b) the past record of service of the employee. A reasonable employer would balance these conflicting factors and arrive at a decision as to whether the extreme punishment of dismissal was called for or not. Conversely, imposition of the extreme punishment of dismissal without having regard to these two conflicting factors would render the punishment "shockingly disproportionate" within the meaning of Item 1(g) of Schedule IV of the Act.
7. Though, Mr. Deshmukh, learned advocate appearing for the employees, strenuously canvassed the contention that the jurisdiction under Clause (g) of Item 1 of Schedule IV of the Act was intended to give wider powers to the Court, similar to the powers under Section 11-A of the Industrial Disputes Act, I am unable to accept this extreme contention also. The two jurisdictions are radically different and, though they may perhaps overlap to some extent, the purposes of the two jurisdictions are distinct and the machineries diverse. The Industrial Disputes Act, as the preamble of the Act itself indicates, is an Act "to make provision for the investigation and settlement of industrial disputes." The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 is an Act "to define and provide for the prevention of certain unfair labour practices; to constitute Courts (as independent machinery) for carrying out the purposes of according recognition to trade unions and for enforcing provisions relating to unfair practices; and to provide for matters connected with the purposes aforesaid." It cannot be forgetten that the Industrial Disputes Act held sway over the field of Industrial adjudication right from the year 1947. An elaborate system of industrial jurisprudence, particularly with reference to adjudication of disputes pertaining termination of service of a workman, had been built up. In this state of law, the Maharshlra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act was enacted in the year 1971 (with effect from 1st February, 1972). As a matter of chronological perspective, it needs to be noted that the Industrial Disputes Act was amended by Act 45 of 197] (with effect from 15th December, 1971) and Section 11-A was incorporated into the Industrial Disputes Act. It was this newly added Section 11-A which invested Industrial Adjudicators with wider powers of inteference with an order of discharge or dismissal, (sic) were satisfied that such an order was not justified. "This section came to be considered depth by the Supreme Court in Workmen of Firestone Tyres & Rubber Co. of India v. The Management and Ors. 1973 (1) LLJ 278. In this case, the Supreme Court, after tracing the development of the law on the subject, interpreted the Section as empowring Industrial Adjudicators to interfere even with the findings of fact as to commission of misconduct recorded at the domestic enquiry or even with the quantum of punishment imposed on the misconduct proved, both powers which were absent hitherto.
8. Though the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act was enacted in 1971, it was brought into effect only on 8th September, 1975. By this time the law as to the import of Section 11-A of the Industrial Disputes Act and the additional powers conferred thereby upon the Industrial Adjudicators had already been settled by the Supreme Court in Wokrmen of Firestone's (supra). Considering the historical background of the Act, it is clear that the Act was not intended to do away with the law as it stood till then, nor was it intended to supplant the provisions of the Industrial Disputes Act, but was intended to create a new jurisdiction, though parallel, yet distinct. I am, therefore, unable to accept the contention of Deshmukh that the provisions of the Act must be read subject or in the light of Section 11-A of the Industrial Disputes Act.
9. Mr. Deshmukh strongly urged that even if the provisions contained in item 1 (g) of Schedule IV of the Act are not to be interpreted penumbrally under Section 11-A of the Industrial Disputes Act, the concept of 'shockingly disproportionate punishment' evolved under the decisions of the Courts was intended to and has been given a go-bye under this provision of the Act. He, submitted that under Item 1 (g) of Schedule IV of the Act, the Labour Court could interfere with a discharge or dismissal of an employee if it was subjectively satisfied that the punishment imposed was shockingly disproportionate. In my view, even this contention is an extreme contention and needs to be rejected. For reasons, already indicated in the preceding paragraphs, I am of the view that the test postulated by the Supreme Court decision in Hind Construction case (supra), is not done away with. It is not the mere subjective satisfaction of the Court which enables the Court to arrive at a finding of unfair labour practice under Item 1 (g) of the Schedule IV of the Act, but a judicial determination objectively based on facts which can enable the Court to exercise jurisdiction thereunder. Mere existence of the first factor indicated in Item 1 (g) of Schedule IV of the Act may, perse, lead to an inference that the punishment is shockingly disproportionate. This is exemplified in the opening clause where the extreme penalty of discharge or dismissal is imposed in the case of the misconduct of a minor or technical nature. On the other hand, there may be cases where the misconduct proved may not be minor or technical in nature. In such a case, reasonable employer is obliged to consider the factors indicated in the section, in a reasonable manner, before arriving at a decision that the extreme punishment of dismissal or discharge should be imposed. If there is failure to have regard to the factors indicated in Item 1(g)and, if the Court, upon an assessement of all attendant circumstances, comes to the conclusion that the penalty of dismissal or discharge was such as no reasonable emloyer could have imposed in like circumstances, then alone the Court would be justified in recording the finding of an unfair labour practice within the meaning of Item 1 (g) of the Schedule IV of the Act. This conclusion can be reached even upon a contrast of the language used in Section 11-A with the one used in Item 1 (g) of Schedule IV of the Act While Section 11-A postulates the test of satisfaction that the order of discharge or dismissal was not 'justified', something much more is required for the purpose of Item 1(g) of Schedule IV of the Act. The construction which I am inclined to adopt would, in my view, harmonise and reconcile the two extreme contentions advanced at the Bar by the learned Advocate.
10. Then we turn to the application of the provisions of the law to the facts of the case. In the instant case, the Labour court held that the workmen were guilty of the misconduct of sleeping on duly, en masse, in the company often Mazdoors and the Supervisor. As a mailer of fact, the Labour Court held that the misconduct committed by the workmen was 'grave' or 'serious' as they had instigated the Ma/doors also to abandon their work and sleep along with them on the terrace. The use of the expression 'grave' or 'serious' is, perhaps, misplaced. Total reading of the impugned order of the Labour Court suggests that, despite the strong language used, what the learned Judge meant thereby was that the proved misconduct was not of a 'minor or technical character'. This is in fact clarified later in the said order (vide paragraph 33). After having recorded a finding that the misconduct was not of minor or technical character, the Labour Court then considered the other two aspects of the matter. Though the order of dismissal does make a passing reference to the nature of the proved misconduct, namely,' 'sleeping while on duty" and the past record of each of the workmen, the Labour Court has taken the view that these were lip services and mere mechanical reproductions of the section without proper consideration or weighing of the conflicting factors. It is true that the order of dismissal docs say that the seriousness of the charge has been considered. There is, however, no indication in the order as to why the employer regarded the charge of sleeping on duty to be so serious as to be visited with the ultimate penalty of dismissal, regardless of other circumstances. It is also true that there is reference to past record as not being extenuating, that there is no requirement in the Standing Orders that while punishing an employee, the punishing authority should make a speaking order giving his reasons as to why he considers one or the other factor as outweighing the rest.
11. Primarily, the order of dismissal/discharge should indicate which of the conflicting factors overrides and why. If the order of dismissal/discharge does not indicate this satisfaction of the employer, then, upon being challenged in the Court of Law, it is the duty of the employer to satisfy the Court on this issue by placing such material as in his possession . This is the least he ought to do. If he fails to do so, as in the instant case, the Court would be justified in ignoring the language used in the dismissal order and coming to its own conclusion that regard has not been had to the nature of the specific misconduct or to the past record of the employee. In my judgment, having "regard" to the factors indicated in the section does not mean mere passing reference to them, but much more. There must be indication of the reason as to why the employer considers one factor as outweighing the other and this must be capable of objective demonstration to the Court upon challenge.
12. The Labour Court, in the instant case, has done precisely what has been postulated herein. I am unable to fault the reasoning of the Labour Court for interfering with the order of dismissal. Despite the somewhat round-about language in which the reasoning is couched, the Labour Court appears to have concluded that the order of punishment meted out to the two workmen was:-(a) for a misconduct which is not of a technical or minor nature, (b) that it was done without regard being had to the specific nature of this misconduct itself and (c) that it was done without regard to the past record of the employees. In this view of the matter, I see no justification for interference with the order of the Labour Court. The Labour Court appears to have exercised the jurisdiction vested in it correctly and upon proper appreciation of facts, which it is entitled to do, In my judgment, there is no occasion for interference with the impugned order under Article 227 of the Constitution of India. Consequently, the employer's petition must fail.
13. Turning then to the petition of the employees, it cannot be gainsaid that the employees were guilty of sleeping on duty. Despite strenuous argument of Mr. Deshmukh, I am not impressed that sleeping on duty would not be a misconduct unless expressly defined as one in the Standing Orders. Model Standing Orders, which are applicable, define "gross or habitual negligence", and "commission of any act subversive of discipline or good behaviour on the premises of the establishment'' as misconducts. Despite a wrong label that might have been attached to the facts alleged in the charge - sheet by the employer, it is possible to take the view that what was alleged against the employees and proved against them was a misconduct - perhaps not of a 'minor or technical character' -but not even of the extremely 'grave or serious' nature as to warrant dismissal. In these circumstances, if, after considering the facts, the Trial Court has taken the view that the appropriate punishment should be deprivation of a part of the back wages. I see no reason or justification for interfering with the judicial discretion exercised by the Trial Court under Article 227 of the Constitution of India. The writ petition of the employees must also therefore fail.
14. In the result, both the writ petitions are hereby dismissed and the rule issued in each of them is discharged without any order as to costs.
15. Mr. Rele, learned Advocate for the employer, applies for leave to appeal to the Supreme Court. Leave declined. Mr. Rele applies for stay of the order of this Court to enable him to move the Supreme Court under Article 136 of the Constitution of India. This order shall be stayed for a period of eight weeks from today, but the workmen concerned shall be given a week's notice about the Supreme Court being moved in the matter.