Bombay High Court
Mohan Ganpat Nikam vs National Textile Corporation (South ... on 2 March, 1994
Equivalent citations: (1994)IILLJ985BOM
JUDGMENT B.P. Saraf, J.
1. The petitioner Mohan Ganpat Nikam was employed with the respondent No. 1 since the year 1973. He was employed as a clerk and working in the P. F. Section. On 1 September 1985, a charge-sheet was served on him by the employer alleging that on 29 August 1985 at about 3.15 p.m., he went to the weaving shed and caught hold of the shirt of a jobber there, abused and pushed him and dragged him out of the weaving shed in the presence of the workers and questioned him in loud voice why he had abused his leader. The petitioner was charged with commission of misconduct under Standing Order 12 (k). The petitioner submitted his explanation on 3 September 1985 and denied the charge. An enquiry was conducted. The inquiry officer found him guilty of misconduct under Standing Order 12 (k). On the basis of the report of the inquiry officer, the petitioner was dismissed from service by the employer by order dated 20th January, 1986. Aggrieved by the order of dismissal, the petitioner filed an application before the Labour Court under sections 78 and 79 read with section 44(2) of the Bombay Industrial Relations Act after submitting an approach letter under section 42(4) of the Act read with rule 53 of the Bombay Industrial Relations Rules. The Labour Court formulated the following points for determination :
"1. Does the applicant prove that the enquiry held by the opponent is not in accordance with the provisions of Standing Order applicable to the parties and in accordance with the principles of natural justice?
2. Does he prove that the finding of the enquiry officer is perverse?
3. Does he prove that the dismissal is not proper?
4. Does he prove that he is entitled to reinstatement?
5. Does he prove that he is entitled to back wages?"
The finding of the Labour Court on the first two points was in the negative. The Labour Court arrived at a categorical finding that the enquiry held by the employer was in accordance with the provisions of the Standing Order and the principles of natural justice. It also held that the finding of the enquiry officer that the petitioner-employee had committed misconduct under Standing Order 12 (k) was based on evidence in the enquiry and hence was legal and valid. The Labour court, however, felt that the punishment of dismissal was shockingly disproportionate and therefore not proper, and directed reinstatement of the petitioner with continuity of service. While doing so, the Labour court categorically observed that in view of the fact that the petitioner employee had committed a misconduct, he must be punished for the misconduct If he is not punished then each and every employee of the establishment will commit such misconduct and it will be very difficult for the employer to control such employees. It was of the opinion that :
".... If back wages are not awarded to the application then it will be a reasonable punishment for the applicant for his misconduct. If back wages are not awarded to the applicant then he will consider that his act as union leader affects the working and peace in the establishment and will not commit such misconduct in future...."
The Labour Court, therefore, held that the petitioner employee was not entitled to any back wages.
2. Both the employer and the employee appealed to the industrial Court against the order of the Labour Court. The employer was aggrieved by the order of reinstatement. The employee was aggrieved by that part of the order by which he was denied back wages. The industrial Court concurred with the findings of the Labour court that the enquiry conducted by the employer was fair and proper and in accordance with the principles of nature justice and also with the finding that the petitioner had committed misconduct under Standing Order 12 (k). It also held that the said finding was valid and legally binding. It also confirmed the opinion of the Labour court in the matter of punishment was regards reinstatement and denial of back wages. The industrial Court held that the Labour court had the power to decide the property of punishment and having exercised its discretion property no interference was called for with the same.
3. The petitioner employee had challenged the order of the industrial Court by filling this writ petition. He is aggrieved by the denial of back wages. According to him, the industrial Court are limited to award one of the punishments specified in the relevant Standing Order. The management awarded the punishment of dismissal. The Labour court can examine the property of the punishment and if it finds that it is disproportionate to the gravity of the misconduct, substitute the same by any other punishment. But the power to substitute is restricted to the punishment specified in the Standing Order. Under Standing Order 13, a clerk guilty of misconduct may be (a) warned or censured to (b) subject to and in accordance with the provisions of the Payment of Wages Act, 1936, fined or (c) suspended for a period not exceeding four days or (d) dismissed without notice or any compensation in lieu of notice if he his found guilty of misconduct. The punishment specified in the Standing Order does not include punishment, by way of denial of back wages. In order words, according to the petitioner, a worker found guilty of misconduct may either be dismissed for service or suspended for a period not exceeding four days as specified in Standing Order 13. can be awarded by the employer or the Labour Court. Reliance is placed on the decision of this Court in Sadhna Textile Industries Pvt. Ltd. v. Gulabchand Gayadin, 1993 II CLR 513, where on interpretation of section 78 of the Act, it was held :
"The Labour Court, therefore, has the power also to examine the order in so far as it pertains to punishment and to modify the same, if it is not satisfied about its propriety or legality. But that again will be limited to determination as to which of the limited to determination as to which of the punishments specified in the standing Order would be the proper punishment keeping in view the nature and gravity of the misconduct proved before it. In the instant case, the admitted position is that the industrial court did not apply its mind to the relevant standing order and did not decide the quantum of punishment in the light thereof. This action, in my opinion, is not in accordance with law".
Learned counsel for the petitioner submits that the industrial Court or the Labour Court should have awarded punishment of suspension for a period of four days. According to the counsel for the petitioner, the finding of the Labour Court that the punishment of dismissal was shocking disproportionate is final but the finding of denial of back wages is not. According to him these are two different findings. The petitioner is satisfied with the one and aggrieved by the other which he has challenged.
According to the respondent, it is not so. There is only one finding regarding punishment - substituting the order of dismissal by order of reinstatement without back wages. If the punishment awarded by the Court is beyond their power, he entire finding will be vitiated and a fresh finding will have to be arrived at in regard to the propriety of the punishment.
4. I have carefully considered the rival submissions. In my opinion the proper manner of examining the propriety or legality of order of the employer in regard to punishment is to consider which of the punishments specified in the Standing Order would be the proper punishment having regard to the nature and gravity of misconduct of the employee. The propriety or legality of the punishment cannot be examined without due regard to the nature and gravity of the misconduct and the various punishments prescribed in the Standing Order. The determination whether the punishment awarded by the employer was proper punishment for the proved misconduct of the employee would depend on the various options available to the employer under the relevant Standing Order. It cannot be decided dehors the Standing Order. The court will have to consider which of the various punishments specified in the Standing Order would be appropriate to proper punishment for the misconduct in question. Such consideration is possible only in the light of the various portions available to the employer under the Standing Order. In the instant case both the Court below were fully satisfied about the misconduct of the employee was not in dispute.. The Labour Court also emphasised the necessity of awarding proper punishment for such misconduct with a view to maintaining discipline in the industry. However, while arriving at the ultimate conclusions in this regard both the Labour Court and the industrial Court proceeded under an erroneous assumption of law that it was open to them as under section 11A of the Industrial Disputes Act to substitute any punishment other than the one awarded by the employer. Such a power, as rightly contended by the petitioner, is not available to the Labour Court or the Industrial Court in cases under the Bombay Industrial Relations Act. In such cases, the propriety or legality of the order of the employer in regard to punishment will have to be examined in the light of the nature and gravity of the misconduct and the relevant Standing Order. In the instant case both the Labour Court and the Industrial Court were satisfied that misconduct of the type committed by the petitioner could not be allowed to go without punishment because if that was done it would have a serious dent on the discipline in the industry. It was in that view of the matter, that the Court felt that reinstatement without back wages would be adequate punishment. None of the Court visualised that such a power was not available and as such did not examine the question whether for the misconduct in question whether for the misconduct in question any of the other punishment specified in the standing Order i.e. warning, censure, fine or suspension for a period not exceeding four days would be more appropriate than the punishment of dismissal. In my opinion, the determination of the property of the particular punishment depends on the gravity of the offence vis-a-vis the various options available to the employer. If all punishments other than the punishment of dismissal are too light and most disproportionate to the nature and gravity of the misconduct, then the Labour Court or the industrial Court will not be justified in holding that the order of the management was not proper of legal. It must be remembered that the power of the Labour Court under section 78 of the Act is to decide the property or legality of an order passed by the employer acting or purporting to in the matter of punishment, has to act under the Standing Orders. The propriety or legality of such order therefore has to be examined in the light of the relevant standing Order. If of all the punishment of dismissal awarded by the employer was the most appropriate punishment having regard to the nature and gravity of the misconduct, no fault can be found with such action of the employer. The Labour Court, in such a case will not be justified in interfering with the punishment.
5. It may be expedient to refer at this stage to a latest decision of this Court in Municipal Corporation of Greater Bombay v. S. E. Phadtare, 1994 I CLR 301 where it has been held by a Division Bench of this Court that provisions of section 11A of the Industrial Disputes Act are not applicable to proceedings under the Industrial Relations Act, 1946 in respect of proceedings conducted by the Labour Court under section 78 and 79 of the Bombay Industrial Relations Act. The following observations are pertinent :
"There is a growing indiscipline amongst the workers controlled by the Union and resort to violence is common. The workers controlled by some of the Unions are under the impression that even if they indulge in violent activities and damage public property, Courts will come to their rescue and permit them to continue their nefarious activities.. We are afraid, we cannot permit such impression to go around. This Court always takes liberal view when the interests of the employees are involved but we decline to stretch the beneficiary legislation to such an extent as to make mockery of discipline."
6. In the instant case, in may opinion, the entire exercise of the Labour Court went wrong because it proceeded on an erroneous assumption of law. The Labour Court as well as the Industrial Court acted as if they were exercising the power under section 11A of the Industrial Disputes Act which evidently in different in nature than the power under sections 78 and 79 of the Bombay Industrial Relations Act. Under the latter provisions, the power of the Court is restricted to examine the propriety of legality of the punishment which, in turn, is possible only in the light of nature and gravity of the misconduct and the various punishments specified in the relevant Standing Order. If the punishment awarded by the employer is proper and legal having regard to the nature and gravity of the misconduct, it will not be open to the court to interfere with the same and substitute some lighter punishment, because according to it the punishment awarded by the employer would operate hardly on the employee.
7. In view of the above discussion, it is necessary to remit the matter to the Labour Court to decide the question of punishment afresh in the light of Standing Order 13 and the observations made above. As the matter is old one, the Labour Court is directed to do it as expeditiously as possible, at any rate within a period of six months from today.
8. It is stated by learned counsel for the petitioner that the petitioner has been reinstated in service in pursuance of the impugned order in service in pursuance of the impugned order of the Industrial Court. He, therefore, prays that the respondent should be directed not be disturb the petitioner pending fresh determination by the Labour Court,. He direction is necessary in view of he most fair stance of the counsel for the respondent is re-examined and decided afresh by the Labour Court in terms of the directions of this Court and for two months thereafter the existing position of the petitioner shall not be disturbed.
9. This writ petition is disposed of in the above a terms. No order as to costs. Writ to go down forthwith.
10. Certified copy expedited.