Gujarat High Court
Divisional Controller vs Hasanbhai Fakirbhai Vhora on 10 July, 2024
NEUTRAL CITATION
C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14408 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DIVISIONAL CONTROLLER
Versus
HASANBHAI FAKIRBHAI VHORA & ANR.
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Appearance:
PRITHU PARIMAL(9025) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 10/07/2024
ORAL JUDGMENT
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1. Present petition is filed under Articles 14 and 226 of the Constitution of India read with the provisions of the Industrial Disputes Act, 1947 challenging the award dated 21.11.2017 passed by the Labour Court, Godhra, in Reference (T) No. 60 of 2010, seeking below mentioned relief/s:-
"6 (A) This Honourable Court may be pleased to issue a Writ of Certiorari or in the nature of certiorari or any other appropriate writ, direction or order calling for the record and proceeding of Reference (T) No. 60 of 2010 from Labour Court at Godhra and after perusing the same, be pleased to quashed and set aside the Award and Order passed by The Learned Labour Court on 21st November 2017 published on 13th December 2017.
(B) This Honourable Court may be pleased to stay the operation, execution and implementation of the Award in Order passed by the Learned Labour Court in Reference (T) No. 60 of 2010 during the admission pendency and final disposal of the present petition.
(C)This Honourable Court may be pleased to grant such other and further prayers as may deem just and proper in the facts and circumstances of the case.
D) Be pleased to award cost of this petition."
2. The facts giving rise to present petition are that the respondent was working as a conductor with the petitioner Corporation. He was subjected to a department proceeding, at the end of which, he was found to be guilty of the misconduct committed by him and therefore, by an Page 2 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined order dated 18.7.2007, an order of dismissal came to be passed against the respondent.
2.1 The petitioner sought approval of the action as required under Section 33 (2)(b) of the Industrial Disputes Act, 1947 which was duly granted by the Learned Tribunal. The respondent also preferred 1st and 2nd Appeals before the Appellate Court which were rejected.
2.2 The respondent raised an industrial dispute which was referred for adjudication to the Presiding Officer of the Labour Court at Godhra by Reference (T) No. 60 of 2010.
2.3 The respondent has filed his Statement of Claim at Exhibit 5 inter alia contending that the order of dismissal was passed without following the principles of natural justice and he had not committed any misconduct. The petitioner also filed its Written Statement at Exhibit 6 contesting the claim and pointing out that the impugned order was passed after following the principles of natural Page 3 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined justice and the same did not require any interference by the Labour Court.
2.4 By filing purshis Exhibit 9, the respondent has waived his challenge to the legality and validity of the inquiry and restricted the challenge to the findings and the consequential punishment.
2.5 The petitioner has produced all the documents relating to the misconduct and the consequential enquiry before the Labour Court. The Presiding Officer of the Labour Court at Godhra vide Award dated 21 st November 2017 passed in Reference (T) No. 60 of 2010 declared that the misconduct was not proved and the findings were baseless and perverse. By doing so, the Presiding Officer substituted the punishment by stoppage of 2 increments without future effect and further awarded 50% back wages from the date of dismissal till the retirement and further directed the petitioner to pay all benefits with superannuation to the respondent.
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NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined 2.6 In view of the above facts, the petitioner corporation has preferred present petition with abovementioned prayer/s.
3. Heard Mr. Prithu Parimal, learned Counsel for the petitioner and Mr. Dipak R. Dave, learned Counsel for the respondent workman.
4. Mr. Parimal, learned Counsel for the petitioner has submitted that the respondent was working as conductor with petitioner and during checking in the bus, it was found that after collecting the fair, the respondent had not issued ticket to one passenger.
4.1 Mr. Parimal, learned Counsel for the petitioner has submitted that the inquiry was conducted and after inquiry, the respondent was found guilty and therefore, he was terminated from service. He has submitted that the respondent is found guilty for the alleged case of misappropriation and the said charge came to be proved and after considering the past history and after considering the records produced before the inquiry Page 5 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined officer, the inquiry officer has rightly passed the order of dismissal, which was confirmed by the first and second appellate authority. He has further submitted that the said order of dismissal was not further carried before the Higher Forum by the respondent. He has further submitted that the Presiding Officer, has observed that the respondent has waived his right to challenge the legality and validity of the said inquiry under Section 11 of the Industrial Dispute Act and has not challenged the order of punishment. It is further submitted that during the course of checking, the respondent has instigated the passenger of the bus and therefore, this act of instigation is also viewed seriously, and after considering all these aspect the order of inquiry was interfered by the Presiding Officer, which is not permissible. 4.2 Mr. Parimal, learned Counsel for the petitioner has submitted that as many as 28 defaults, as per the chart annexed at page 43 were registered against present respondent and punishment was also imposed for all these alleged defaults. He has submitted that the Page 6 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined corporation has lost the confidence in the respondent and after considering the past history, has rightly passed the impugned order of punishment which ought not to have been interfered by Presiding Officer unless and until the inquiry is challenged by the concern workmen by way of filing reference under Section 11-A of the Industrial Dispute Act and in present case, the respondent workman has specifically waived his right to challenge to the legality and validity of the inquiry and therefore, punishment imposed on the respondent, based upon the inquiry cannot be altered or cannot be interfered by Presiding Officer and therefore, the impugned order passed by the Presiding Officer is erroneous, illegal, unjust and same deserves to be quashed and set aside. 4.3 It is also further contended by Mr. Parimal learned Counsel for the petitioner that the Labour Court materially erred in allowing the reference, whereby the Presiding Officer has committed serious error of jurisdiction which is not vested in it, as held by the Honourable Apex Court in number of judgments. He has Page 7 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined also contended that the Presiding Officer has committed material error while ignoring the aspect that once the challenge to the legality and validity of the inquiry was waived, it is not open for the learned Presiding Officer to enter into the quantum of the punishment and therefore, also the impugned award passed by the Labour Court is illegal, erroneous and unjust.
4.4 Mr. Parimal, learned Counsel for the petitioner has contended that the Presiding Officer has held that the misconduct was not proved instead of the fact that there was sufficient evidence to prove the misconduct of the respondent and respondent-workmen has failed before the first and second appellate authority and also has not challenged the findings by preferring petition before this Court. He has submitted that in view of the said fact, it is not open for the Labour Court to look into the findings recorded by the inquiry officer and confirmed by the first and second Appellate Authority.
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NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined 4.5 Mr. Parimal, learned Counsel for the petitioner in support of his submissions, relied upon the decision of the Hon'ble Apex Court in the case of U.P. State Road Transport Corporation vs. Vinod Kumar reported in (2008) 1 SCC 115 and more particularly paragraph Nos. 7, 8, 9 and 10 which read as under:-
"7. Respondent did not press the legality and fairness of the enquiry proceedings and confined his case only to the conclusions reached by the Enquiry Officer as well as the quantum of punishment.
8. The Labour Court, without appreciating the fact that in the absence of challenge to the legality or fairness of the inquiry report the Court should be reluctant to ei- ther interfere with the finding recorded by the Punishing Authority or the quantum, held that the charge of misap- propriation has not been proved against the respondent and, thus, punishment of removal from service is harsh. It substituted the punishment of removal by stoppage of one increment without any cumulative effect and di- rected reinstatement of respondent with full back- wages. The said award was published. The appellant challenged the said award by filing Writ Petition No. 603 (M/S) of 2002 before the High Court of Uttaranchal at Nainital. The High Court, without appreciating the fact that once it was held that respondent was carrying pas- sengers without ticket and had also recovered fare from 8 passengers which was a serious misconduct, upheld the order passed by the Labour Court. It agreed with the findings recorded by the Labour Court that punishment inflicted upon the respondent was excessive and dispro- portionate to the charges levelled/proved, but reduced the back-wages to 50%. The award of the Labour Court was modified to that extent.
9. Counsel for the parties have been heard.Page 9 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024
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10. As stated in the preceding paragraphs, the respon- dent had confined his case only to the conclusions reached by the Enquiry Officer as well as the quantum of punishment. Therefore, since the respondent had not challenged the correctness, legality or validity of the en- quiry conducted, it was not open to the Labour Court to go into the findings recorded by the Enquiry Officer re- garding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate pun- ishment for an employee found guilty of misappropria- tion of funds; and the Courts should be reluctant to re- duce the punishment on misplaced sympathy for a work- man. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. Without burdening the judgment with all the judgments of this Court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh, 2006 (6) SCC 187, wherein this Court, after taking into account the earlier deci- sions, held in para 18 as under:-
"In the instant case, the mis-appropriation of the funds by the delinquent employee was only Rs.360.95. This Court has considered the punish- ment that may be awarded to the delinquent em- ployees who mis-appropriated the funds of the Cor- poration and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money mis-appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating the Cor- poration's funds, there is nothing wrong in the Cor- poration losing confidence or faith in such an em- ployee and awarding punishment of dismissal. In such cases, there is no place for generosity or mis- placed sympathy on the part of the judicial forums and interfering therefore with the quantum of pun- ishment. The judgment in Karnataka State Road Page 10 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined Transport Corporation v. B.S. Hullikatti (2001) 2 SCC 574 was also relied on in this judgment among others. Examination of the passengers of the vehi- cle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a mis- conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appel- lant irrespective of the quantum."
[Underlining is ours] 4.6 Mr. Parimal, learned Counsel for the petitioner has also relied upon the decision of the Hon'ble Apex Court in the case of Divisional Controller, KSRTC (NWKRTC) vs. A.T. Mane reported in (2005) 3 SCC 254 and more particularly paragraph Nos.10, 11, 12, 13 and 14 which read as under:-
"10. Since the only ground on which the finding of the domestic tribunal has been set aside being the ground that concerned passengers are not examined or their statement were not recorded, in spite of there being other material to establish the misconduct of the respon- dent, we are of the opinion, the courts below have erred in allowing the claim of the respondent. In our opinion, the ratio laid down in the above case of Rattan Singh (supra) applies squarely to the facts of this case.Page 11 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024
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11. In the instant case also there is the evidence of the inspector who conducted the checking which establishes the misconduct of the respondent based on which a find- ing was given that the respondent was guilty of the mis- conduct alleged. Based on the said finding, the disci- plinary authority has punished the respondent by an or- der of dismissal. But the Labour Court, and the learned single Judge rejected the said finding and set aside the punishment imposed solely on the ground that the evi- dence of the passengers concerned was not adduced and their statements were not recorded by the inspector which as stated in the Rattan Singh's case is not a condi- tion precedent. Therefore, we are of the opinion that the courts below have erred in interfering with the finding of fact on an erroneous basis.
12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a pri- mary factor for awarding punishment, on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a per- son is found guilty of misappropriating corporation's fund, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a pun- ishment of dismissal.
13.This Court in the case of B.S. Hullikatti (supra) held in a similar circumstances that the act was either dis- honest or was so grossly negligent that the respondent therein was not fit to be retained as a conductor. It also held that in such cases there is no place for generosity or misplaced sympathy on the part of the judicial forums and thereby interfere with the quantum of punishment.
14. As noted above, the Division Bench of the High Court did not dismiss the petition on the ground of delay but held it is not worthwhile condoning the delay because there was no merit in the appeal. Since, we have come to the conclusion that the findings of the Labour Court and that of the learned single Judge are unsustainable in law, the finding of the Division Bench also is liable to be set aside.Page 12 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024
NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined 4.7 In view of the above submission and the decisions of the Hon'ble Apex Court, Mr. Parimal, learned Counsel for the petitioner urges before the Court that present petition may be allowed and the impugned order passed by the Labour Court may be quashed and set aside.
5. As against that Mr. Dipak R. Dave, learned Counsel for the respondent workman has submitted that during 20 years of spotless career, there was no single incident of any misappropriation was recorded against present respondent and this is only first incident, where allegation of misappropriation is charged against present respondent and that is also without examination of concerned witnesses and therefore, Labour Court has rightly interfered with the punishment imposed by the petitioner corporation.
5.1 Mr. Dave, learned Counsel for the respondent has also submitted that even from the default chart at page 43, there was no single charge with regard to any misconduct in terms of misappropriation during 20 years service was Page 13 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined found and therefore, the punishment imposed by the inquiry officer is very harsh and disproportionate to the charges level against respondent.
5.2 Mr. Dave, learned Counsel for the respondent workman has referred to and relied upon the decision of the Hon'ble Apex Court in the case of Mavji C. Lakum vs. Central Bank of India reported in (2008) 12 SCC 726 and more particularly he has placed reliance on the following paragraphs:-
"19.. When we see the Tribunal's Award, it is clear that firstly the Tribunal came to the conclusion that the in- quiry was fair and proper. Thereafter in para 7, the Tri- bunal has considered the arguments on behalf of the bank to the effect that once the inquiry has been held to be legal and proper, no interference can be made as re- gards the punishment. It is to be noted that the first charge against the appellant was rough and rude behav- iour with client Gulabchand and company's partner Harenderbhai Shah, while the second charge was also regarding the rude behaviour with the higher officers of the bank and disobedience with the work entrusted; the third charge was that he was instructed to remain present on the bank's account closing day, he had gone away; the fourth charge was regarding the breach of bank's rules pertaining to leave; the fifth charge was with regard to frequently leaving the place during office hours without permission while the sixth charge was re- garding the illegally making trunk calls on the bank's phone without permission and the seventh charge was incurring excessive debts from outside. It is already seen that charges 4 and 6 were held not to be proved. It was Page 14 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined pointed out before the Tribunal on behalf of the appel- lant that for Charge Nos.1 and 3, the punishment was for stopping the increments while it was for Charge No. 2 and 5 that the punishment of discharge was awarded. For other charges minor punishments of censure, etc., and stopping of two increments were imposed. Thus it was only for the two charges, namely, Charge Nos.2 and 5 that the punishment of discharge was given to him. In respect of rest of the charges it was merely a punish- ment of stopping of increments. It was pointed out by the workman and rightly accepted by the Tribunal that for long 40 years of his service there was not a single al- legation against the appellant. It was also considered by the Tribunal that he had not only properly worked for 30-31 years but has also got promotion of Head Peon during this period.
20. The Tribunal then took stock of the evidence of Harendra Shah with whom the appellant allegedly mis- behaved. The Tribunal ultimately chose to record that the appellant could not have been found guilty of misbe- haviour. The Tribunal also took stock of the evidence of one Shri Desai and came to the conclusion that he did not even know the duties of the appellant as a Head Peon and that there was no record available and further according to this witness there was no record available of the outgoing trunk calls. The Tribunal also noted the fact that there was no past record of habitual miscon- duct on the part of the appellant and, therefore, the Tri- bunal came to the conclusion that there was no sufficient evidence regarding habitual misuse of the telephones.
21. The Tribunal also noted the evidence of Peon H.K. Pandya who had said that the delinquent conduct was good with him and he was properly discharging his du- ties. The Tribunal has also referred to the fact that Shri H.K. Pandya has given his signature on the complaint against the appellant not even knowing about the docu- ment on which he was putting his signature and that he given the signature just because it was asked from him. The Tribunal also noted the evidence of H.N. Shethia, Clerk and recorded a finding that his evidence was not believable. The Tribunal has further noted that Shri Sethia used to visit Shri Jadeja with whom the appellant Page 15 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined had strained relations. The Tribunal further took stock of evidence of one K.B. Mehta who was unable to tell as to whether any action was taken against the appellant from 1962 to 1980 and that the conduct of delinquent was good in the bank premises. The evidence of other wit- nesses, namely, Shri Vadhera and Shri J.A. Shah was considered by the Tribunal and the Tribunal ultimately recorded that there was no record available with the bank regarding the past history of the delinquent or about his misbehaviour or any complaint made by any of the staff members. The Tribunal then records:
"On overall examination of the examination-in-chief and the cross-examination made during the whole departmental inquiry, it appears that the bank's staff did not like the delinquent's conduct, whereas the delinquent was under an impression that he is discharging his main duties and he has not to do any other work. This is during the period from 1982 only.......it appears that there is no sufficient record or evidence against the delinquent so as to impose punishment of discharge on the workman. Therefore, the punishment of discharge is liable to be set aside. Now, on overall appreciation, it ap- pears that due to some sort of bitterness between the workman and the staff members, the workman has committed some misconduct. In my opinion it would be just, proper and in the interest of justice of punishment of withholding the increment with future effect is imposed upon the delinquent and I, therefore, pass the following order..."
All this suggests that the Tribunal had considered every- thing in great details.
22. In our opinion under Section 11-A of the Industrial Disputes Act the Tribunal was quite justified in using its discretion. The scope of Section 11-A has been explained by this Court from time to time in Life Insurance Corporation of India v. R. Dhandapani [(2006) 13 SCC 613; Mahindra Ltd. V. N.B. Narawade [(2005) 3 SCC 331] and M.P. Electricity Board v. Jagdish Chandra Sharma [(2005) 3 SCC 401]. Lastly, this Court has held that in L and T Komatsu Ltd. V. N. Uadayakumar [(2008) 1 SCC 224] that assaulting or giving abuses to the supe- Page 16 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024
NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined rior would justify the dismissal. We have carefully exam- ined the facts in all the above cases and find that the ap- pellant's case nowhere comes near the one described in all the above four cases. After all the Tribunal has to judge on the basis of the proved misbehaviour. In this case we have already recorded that the Tribunal was firstly correct in holding that the misbehaviour was not wholly proved and whatever misconduct was proved, did not deserve the extreme punishment of discharge.
23. on this backdrop when we see unusually long judg- ment of the learned Single Judge, it comes out that the learned Single Judge held firstly that the Tribunal had exceeded its powers vested in it under the provisions of Section 11-A of the Industrial Disputes Act. The learned Judge, as regards, Section 11-A, after quoting the same, observed:
"Though the Tribunal was equipped with the power to come to its own conclusion whether in a given case the imposition of punishment of discharge or dismissal from the service is justified. It is for that purpose that the Tribunal is authorized to go into the evidence that has been adduced before the In- quiry Officer in details and find out whether the punishment of discharge or dismissal is commensu- rate with the nature of charges proved against the delinquent."
So far the finding of the learned Single Judge appears to be correct. However, the whole thrust of the judgment has changed merely because the Industrial Tribunal had found the inquiry to be fair and proper. The learned Judge seems to be of the opinion that if the inquiry is held to be fair and proper, then the Industrial Tribunal cannot go into the question of evidence or the quantum of punishment. We are afraid that is not the correct law. Even if the inquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural jus- tice and fair play were observed. That does not mean that the findings arrived at were essentially the correct findings. If the Industrial Tribunal comes to the conclu- sion that the findings could not be supported on the ba- sis of the evidence given or further comes to the conclu- Page 17 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024
NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined sion that the punishment given is shockingly dispropor- tionate, the Industrial Tribunal would still be justified in re-appreciating the evidence and/or interfering with the quantum of punishment. There can be no dispute that power under Section 11-A has to be exercised judiciously and the interference is possible only when the Tribunal is not satisfied with the findings and further concludes that punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned. Besides, the Tribunal has to give reasons as to why it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but there should be good reasons.
24. In our opinion the reasons given by the Tribunal were correct and the treatment given by the Tribunal to the evidence was perfectly justified. The Tribunal com- mitted no error in observing that for good long 30 years there was no complaint against the work of the appellant and that such a complaint suddenly surfaced only in the year 1982. The Tribunal was justified in appreciating the fact that the charges were not only trivial and were not so serious as to entail the extreme punishment of dis- charge. Here was the typical example where the evi- dence was of a most general nature and the charges were also not such as would have invited the extreme punishment. It was not as if the appellant had abused or had done any physical altercation with his superiors or colleagues. What was complained was of his absence on some days and his argumentative nature.
25.Though the learned Judge had discussed all the prin- ciples regarding the exercise of powers under Section 11-A of the Industrial Disputes Act as also the doctrine of proportionality and the Wednesbury's principles, we are afraid the learned Judge has not applied all these principles properly to the present case. The learned Judge has quoted extensively from the celebrated deci- sion of M/s.Firestone Tyre & Rubber Co. of India P. Ltd. V. The Management [AIR 1973 SC 1227], however, the learned Judges seems to have ignored the observations made in para 32 of that decision where it is observed that: (SCC p.830, para 36) Page 18 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined "36. The words "in the course of adjudication pro- ceeds, the Tribunal is satisfied that the order of dis- charge or dismissal was not justified" clearly indi- cate that the Tribunal is now clothed with the power of re-appraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the miscon- duct alleged against a workman. What was origi- nally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tri- bunal that the finding of misconduct is correct.. The Tribunal is at liberty to consider not only whether the finding of misconduct recorded by an employer is correct but also to differ from the said finding if a proper case is made out"
26. We are surprised at the following observations of the learned Judge in para 7.1:
"Nowhere during the course of the judgment the Tribunal appears to have followed the aforesaid guidelines or the Wednesbury test. When it was re- appreciating evidence and on the strength of it, was reaching to different conclusions and ulti- mately it has substituted the punishment, it was in- cumbent upon it to follow aforesaid guidelines. It was only upon finding that the decision of the au- thority was illegal or that it was based on material not relevant or relevant material was not taken into consideration or that it was so unreasonable, that no prudent man could have reached to such deci- sion or that it was disproportionate to the nature of the guilt held established so as to shock the judicial conscience, the Tribunal could have substituted the penalty. The entire text of award of the Tribunal does not indicate this."
We are unable to agree with these observations.
27. On the other hand the Tribunal, in our opinion has correctly appreciated the evidence and has also cor- rectly substituted the punishment. In whole of the judg- ment, the learned Single Judge has not referred to any of the factual findings recorded by the Tribunal. In our opinion the judgment of the learned Single Judge was Page 19 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined wholly incorrect in so far as it dubbed the Tribunal's judgment as wrong. We approve of the judgment of the Tribunal and set aside the judgment of the learned Sin- gle Judge."
5.3 In view of the above, Mr. Dave, learned Counsel for the respondent has submitted that the Labour Court has not committed any error while interfering in the order of punishment imposed by the inquiry officer and confirmed by both the appellate authorities. He has submitted that merely by giving up the right of legality and validity of the inquiry, it does not mean that the Labour Court cannot go into the findings recorded by the inquiry office and therefore, the impugned order passed by the Labour Court deserves to be confirmed and the petition may be dismissed.
5.4 Lastly, he has submitted that if this court deems it proper then the order of Labour Court may be modified by considering the case of the respondent as voluntary retirement so that the respondent can get his retiral benefits.
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6. I have perused the material as well as relevant documents available on record. I have also gone through the impugned order passed by the Labour Court.
7. One undisputed fact is that the respondent workman was found with the default of charge of misappropriation and whether this is single incident or many incident, and it is for even one rupee or one lakh rupees, it is viewed seriously and therefore, for the said misconduct the petitioner is right in saying that the petitioner has lost faith and confidence from such person and therefore, while awarding the punishment of dismissal the petitioner corporation has not committed any error. It is also an undisputed fact that against the said order, the respondent workman has preferred first and second appeal and both the appeals were failed and that findings were never challenged by the respondent workmen before this court and therefore, the finding recorded by the inquiry officer has reached to its finality, as it was never challenged by the respondent workman. Page 21 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024
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8. Therefore, Mr. Parimal, learned Counsel for the petitioner has rightly submitted that under such circumstances, it is not open for the Presiding Officer and Labour Court to interfere with the quantum of punishment which was recorded by the inquiry officer, after completion of inquiry and after giving full opportunity to the respondent. Further, it is not open for the Labour Court while exercising jurisdiction under Section 11 A of the Industrial Disputes Act, 1947 to go into the quantum of punishment and interfere with the order of imposition of punishment.
9. Even in the decision of Hon'ble Apex Court in the case of U.P. Road Transport (supra) in paragraph No.7 it is held that the respondent did not press the legality and fairness of the enquiry proceedings and confined his case only to the conclusions reached by the Enquiry Officer as well as the quantum of punishment.
10. In the decision of the Hon'ble Apex Court in the case of Divisional Controller (supra) it is observed that it is Page 22 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined not the amount of money misappropriated that becomes a primary factor for awarding punishment, but it is the loss of confidence which is the primary factor to be taken into consideration.
11. Further, in the decision of the Hon'ble Apex Court in the case of L and T Komatsu Ltd. Vs. N Udayakumar reported in 2008(1) SCC 224 has observed as under:-
"5. It is submitted that habitual absentism is gross viola- tion of discipline. It is also submitted that the parame- ters for the exercise of Section 11A of the Act have not been kept in view by the Labour Court and the High Court.
8. In Life Insurance Corporation of India v. R. Dhandapani, [2006 1 LLJ 329] it was held as follows: .
"It is not necessary to go into in detail regarding the power exercisable under Section 11A of the Act. The power under said Section 11A 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 un- der Section 11A of the Act only when it is satisfied that punishment imposed by the management is wholly and shockingly disproportionate to the de- gree 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 exer- cised judiciously and mere use of the words 'dispro- portionate' or 'grossly disproportionate' by itself will not be sufficient.
9. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, ten- dency towards a denudation of the legitimacy of judicial Page 23 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the frame- work of the law and should not incur and justify the criti- cism that the jurisdiction of the Courts tends to degener- ate 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 mu- tually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and re- spectability. [See: Kerala Solvent Extractions Ltd. v. A. Unnikrishnan and Anr. [1994 2 LLJ 888] .
Though under Section 11A, the Tribunal has the power to reduce the quantum of punishment it has to be done within the parameters of law. Posses- sion of power is itself not sufficient; it has to be ex- ercised in accordance with law.
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 Tri- bunal and submitted that the Tribunal and the learned Single Judge have considered the case in its proper perspective, we do not find any sub- stance in the plea. Industrial Tribunals and Labour Courts are not forums whose task is to dole out pri- vate benevolence to workmen found by Labour Court/Tribunal to be guilty of misconduct. The Tri- bunal 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 unfortu- nately endorsed by learned single Judge was fully misplaced."Page 24 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024
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9. In Mahindra and Mahindra Ltd. v. N.B. Narawade [2005(3) SCC 134] it was noted as fol- lows:
"It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, cer- tain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the manage- ment where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the ab- sence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills this Court held: "Pun- ishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised so- ciety. Use of such abusive language against a supe- rior officer, that too not once but twice, in the pres- ence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the ab- sence of any extenuating factor referred to herein- above."
11. Again in M.P. Electricity Board v. Jagdish Chandra Sharma [2005 2 LLJ 156] this Court dealt with the mat- ter as follows:
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NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined "The question then is, whether the interference with the punishment by the Labour Court was justi- fied? In other words, the question is whether the punishment imposed was so harsh or so dispropor- tionate to the charge proved, that it warranted or justified interference by the Labour Court? Here, it had been clearly found that the employee during work, had hit his superior officer with a tension screw on his back and on his nose leaving him with a bleeding and broken nose. It has also been found that this incident was followed by the unauthorised absence of the employee. It is in the context of these charges found established that the punish- ment of termination was imposed on the employee. The jurisdiction under Section 107-A of the Act to interfere with punishment when it is a discharge or dismissal can be exercised by the Labour Court only when it is satisfied that the discharge or dis- missal is not justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punish- ment imposed, is shockingly disproportionate to the charge proved. These aspects are well set- tled. In U.P. SRTC v. Subhash Chandra Sharma this Court, after referring to the scope of interference with punishment under Section 11-A of the Indus- trial Disputes Act, held that the Labour Court was not justified in interfering with the order of re- moval from service when the charge against the employee stood proved. It was also held that the ju- risdiction vested with the Labour Court to interfere with punishment was not to be exercised capri- ciously and arbitrarily. It was necessary, in a case where the Labour Court finds the charge proved, for a conclusion to be arrived at that the punish- ment was shockingly disproportionate to the nature of the charge found proved, before it could inter- fere to reduce the punishment. In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh, this Court after referring to the decision in State of Rajasthan v. B.K. Meena also pointed out the differ- ence between the approaches to be made in a crim-Page 26 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024
NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined inal proceeding and a disciplinary proceeding. This Court also pointed out that when charges proved were grave, vis-?is the establishment, interference with punishment of dismissal could not be justi- fied. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate this Court again reiterated that the jurisdic- tion to interfere with the punishment should be ex- ercised only when the punishment is shockingly disproportionate and that each case had to be de- cided on its facts. This Court also indicated that the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, had to act within the four corners thereof. It could not sit in appeal over the decision of the employer unless there existed a statutory provision in that behalf. The Tribunal or the Labour Court could not inter- fere with the quantum of punishment based on irra- tional or extraneous factors and certainly not on what it considers a compassionate ground. It is not necessary to multiply authorities on this question, since the matter has been dealt with in detail in a recent decision of this Court in Mahindra and Mahindra Ltd. v. N.B. Narawade. This Court summed up the position thus: (SCC p. 141, para
20) "20 . It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, cer-
tain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the manage- ment where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past Page 27 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined conduct of the workman which may persuade the Labour Court to reduce the punishment." It may also be noticed that in Orissa Cement Ltd. v. Adikanda Sahu and in New Shorrock Mills v. Maheshbhai T. Rao this Court held that use of abu- sive language against a superior, justified punish- ment of dismissal. This Court stated "punishment of dismissal for using abusive language cannot be held to be disproportionate". If that be the position regarding verbal assault, we think that the position regarding dismissal for physical assault, must be found all the more justifiable. Recently, in Muriadih Colliery BCC Ltd. v. Bihar Colliery Kamgar Union this Court after referring to and quoting the relevant passages from Krishnakali Tea Estate v.
Akhil Bharatiya Chah Mazdoor Sangh and Tournamulla Estate v. Workmen held:
(SCC p. 336, para 17) "The courts below by con- doning an act of physical violence have undermined the discipline in the organisation, hence, in the above factual backdrop, it can never be said that the Industrial Tribunal could have exercised its au- thority under Section 11-A of the Act to interfere with the punishment of dismissal."
12. In view of the above, I am of the opinion that the impugned order of punishment passed by the inquiry officer, after full-fledged inquiry, was not required to be interfered by the Labour Court, while exercising the jurisdiction under Section 10 of the Industrial Disputes Act. Therefore, the findings recorded by the Labour Court are erroneous, unjust, and illegal. It is also required to be noted herein that while introduction of Section 11-A of Page 28 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024 NEUTRAL CITATION C/SCA/14408/2018 JUDGMENT DATED: 10/07/2024 undefined the Industrial Disputes Act, the discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct, but here in the present case, without the prayer under Section 11-A of the Industrial Dispute Act, the Labour Court has gone into the issue of quantum of punishment and also interfered in the order of inquiry, which is not permissible.
13. In fact, it is also required to be noted herein that the Labour Court ought not to have undermined the discipline in the organization and to maintain the trust and confidence which was reposed by corporation in the workmen and therefore, once the corporation lost such confidence in the workmen, the management has right to remove such person from the service, after conducting the inquiry and after giving proper opportunity to the concerned workman.
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14. Here in the present case, the respondent has not challenged the finding of the inquiry officer which is confirmed by the first and second appellate authority before this court by way of preferring petition challenging the said findings and therefore, without there being any challenge, the learned Labour Court ought not to have interfered in the order of quantum of punishment imposed by the inquiry officer.
15. Therefore, the impugned order passed by the Labour Court is illegal, unjust and arbitrary. Further, the Hon'ble Apex Court observed that the Labour Court has not kept the parameters of exercise of Section 11-A and therefore, in absence of such challenge the Labour Court ought not to have interfered with the findings recorded by the inquiry officer.
16. For the foregoing reasons and in view of the aforesaid decisions of the Hon'ble Apex Court, this Court is of the opinion that present petition requires consideration. Page 30 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024
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17. In view of the aforesaid, the petition is hereby allowed. Rule is made absolute. The impugned award dated 21.11.2017 passed by the Labour Court, Godhra, in Reference (T) No. 60 of 2010 is hereby quashed and set aside.
Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 31 of 31 Downloaded on : Fri Jul 26 21:13:33 IST 2024