Patna High Court
Employers In Relation To The South ... vs Presiding Officer, Central ... on 23 March, 1965
Equivalent citations: AIR1965PAT386, (1967)IILLJ193PAT, AIR 1965 PATNA 386, (1965 - 66) 28 FJR 155, (1967) 2 LABLJ 193, ILR 45 PAT 1455
JUDGMENT G.N. Prasad, J.
1. This is an application for issue of an appropriate writ under Article 226 or 227 of the Constitution for quashing an Award passed by the Presiding Officer, Central Government Industrial Tribunal, Dhanbad (Respondent No. 1) dated the 21st July 1962, and published in the Gazette of India on the 11th August 1962. The petitioners are the Employers in relation to the South Kujama Colliery under whom Ram Dayal Singh (Respondent No. 2) was serving as a Pump Attendant. The dispute referred by the Central Government under Section 10(1)(d) of the Industrial Disputes Act, 1947, for adjudication by the Tribunal was:
"Whether the dismissal of Shri Ram Dayal Singh, Pump Attendant, by the management of South Kujama Colliery of M/s. Bagdiggi Kujama Collieries Co. (1946) Ltd., was justified? if not, to what relief is he entitled?"
2. The circumstances under which the above reference to the Tribunal was made are briefly as follows: On the 2nd November 1961, Sri D.V. Manak, the Director of the South Kujama Colliery, paid a surprise visit to the Mine and found that Ram Dayal Singh (Respondent No. 2), the Pump Attendant on duty at a 62 H.P. Pump, was sleeping while on duty. Thereupon the Director asked the Manager of the Colliery to draw up a proceeding against the said Pump Attendant. Accordingly, on the same day, the Manager served a chargesheet upon Ram Dayal Singh calling upon him to show cause within 48 hours why disciplinary action should not be taken against him for his misconduct, namely, sleeping while on duty. In his show cause petition to the Manager, Ram Dayal Singh denied that he was sleeping on duty, as alleged, and he further said that the chargesheet issued against him was intended to harass him because on the 29th October 1961, he had complained to the Inspector of Mines about certain irregularities on the part of the Management. A managerial inquiry was held on the 8th November 1961, and as a result thereof Ram Dayal Singh was found guilty of misconduct and dismissed with effect from the 3rd November 1961. In the order of dismissal served upon him, it was mentioned that sleeping on duty is a violation of the Standing Orders and violation of the Coal Mines Regulations. It was in this context that the reference of title dispute was made to the Tribunal on the 15th January, 1962.
3. Upon the materials produced before it, the Tribunal came to the conclusion that Ram Dayal Singh was sleeping while on duty on the 2nd November 1961 and that the misconduct with which he was charged had been established. On the question of the punishment awarded by the Management, the Tribunal, however, took the view that its interference was called for inasmuch as the punishment of dismissal was excessive and discriminatory and amounted to unfair labour practice. In coming to the conclusion that the dismissal of Ram Dayal Singh was unjustified, the Tribunal took note of three circumstances; (i) that for the same misconduct committed by two other Pump Khalasis only a few days earlier, the Company had merely warned them, (ii) that Ram Dayal Singh had a clean record of service for ten years, which the Management did not take into consideration while inflicting the extreme punishment of dismissal to him, & (iii) that it had been clearly established from the independent evidence of Shri M. L. Mukherjee, Inspector of Mines, that Ram Dayal Singh had complained to him only a few days before about certain illegal practices of the Management which had resulted in certain notices being served upon the Management by the Mines Department. The said Inspector of Mines had also deposed before the Tribunal that while conveying information to him, Ram Dayal Singh had requested him not to disclose to the Management that it was he who had informed him about the illegal practices of the Management because Ram Dayal Singh was afraid that he would be victimised by the Management. In the result, the Tribunal directed that Ram Dayal Singh should be reinstated in his former post of Pump Khalasi, but for the period from the date of his dismissal until the date of his re-instatement, he would be treated as on leave without pay, so that he might have the benefit of continuity of service.
4. Being aggrieved by the award of the Tribunal referred to above, the Employers have filed the present writ application with a copy of the Award which is Annexure 'G' to the application.
5. Mr. Ranen Roy appearing in support of the application has raised substantially two points; (i) that the finding of the Tribunal that the punishment of dismissal imposed upon Respondent No. 2 was discriminatory is unjustified and perverse, and (ii) that the punishment of dismissal for the offence of misconduct on the part of Respondent No. 2 being within the powers of the Employers under the relevant Standing Order, there was no scope for holding that Ram Dayal Singh had been victimized since the quantum of punishment to be awarded to him was entirely in the discretion of the Employers. In other words, the Tribunal had no power to sit in judgment over the decision of the Management on the question of punishment.
6. Mr. Roy was not in a position to deny that for the offence of sleeping while on duty committed by two other Pump Khalasis Sreepati Pandey and Ramsaran Pandey, the Management had merely warned them, while for the same offence committed by Ram Dayal Singh, it had imposed the punishment of dismissal upon him. Mr. Roy, however, contended that this was no indication of discrimination on the part of the Management because the lighter punishment of warning had been given to the other two Pump Khalasis since that &as the recommendation made to it by the Mines Inspector. Mr. Roy was, however, unable to point the any material which could have shown that the Management was bound to accept the recommendation of the Mines Inspector in the matter of the punishment to be imposed upon Sreepati Pandey and Kamsaran Pandey. By accepting the above recommendation of the Mines Inspector in the case of these two Pump Khalasis, the Management must be deemed to have come to the conclusion that the warning was an adequate punishment for the offence of sleeping on duty committed by the two Pump Khalasis. Therefore, it is difficult to believe that for a similar offence committed by Ram Dayal Singh, the Management could have legitimately thought that the proper punishment was dismissal of the employee, it was, therefore natural for the Tribunal to enquire as to why in the case of Ram Dayal Singh, the Management decided to award the punishment of dismissal for a similar offence. It was in this connection that the tribunal took into consideration the fact deposed to by the Inspector of Mines that Ram Dayal Singh has complained to him only a few days before about certain illegal practices of the Management, whereupon certain notices were served upon the Management by the Mines Department.
Mr. Roy contended that since the Inspector had himself stated that Ram Dayal Singh had requested him not to disclose his name to the Management as the informant of the illegal practices of the Management, the Tribunal ought to have held that at the time of passing the order of dismissal against Ram Dayal Singh, the Management had no knowledge that Ram Dayal Singh had made complaints against it to the Inspector and, therefore, it was not legitimate to infer that the higher punishment of dismissal was imposed upon Ram Dayal Singh as he was responsible for bringing certain illegal practices of the Management to the notice of the Inspector. There is, however, no substance in this contention of Mr. Roy, because on referring to Annexure 'B' which is the copy of the show cause petition submitted to the Manager by Ram Dayal Singh on 6-11-1961, I find that he had pointedly drawn the attention of the Management to the fact that during the visit of the Inspector of Mines on the 29th October, 1961, he had complained before the Inspector that "Pump runs regularly on Sundays, but no attendance is being recorded. Hazri is paid by voucher." Ram Dayal Singh had further said in his show cause petition that "On 30-11-61 the present in-charge Pashupati Chakravarty told me that you better change your shift other than myself otherwise your service will not continue because you have reported to the Inspector of Mines that on Sundays no mining Sirdar remains below ground." The date '30-11-61' is obviously a mistake for 30-10-61, since the show cause petition was admittedly submitted by Ram Dayal Singh to the Manager on 6-11-1961.
It must, follow, therefore, that before the Management decided to pass the order of dismissal against Ram Dayal Singh, it was well aware that he had made certain complaints against it to the Inspector of Mines. Therefore, it is not possible to accede to the contention of Mr. Roy that the Management had no knowledge about the complaints which Ram Dayal Singh had made to the Inspector at the time when it proceeded to pass the order of dismissal against him. It must follow that the Tribunal had ample justification for coming to the conclusion that the Management had made a discrimination in the matter of awarding punishment upon the two sets of employees for the same offence of sleeping while on duty. It had let off Sreepati Pandey and Ramasaran Pandey with a lighter punishment of warning while it had imposed the extreme punishment of dismissal to Ram Dayal Singh. The reason for making this discrimination obviously was that Ram Dayal Singh had made complaints to the Inspector of Mines about which the Inspector deposed before the Tribunal. The finding of the Tribunal on the point of discimination cannot, therefore, be legitimately characterised as unjustified and perverse. The first point raised by Mr. Roy thus fail.
7. The second point urged by Mr. Roy raises the question as to what are the limitations upon the power of an Industrial Tribunal of interference with the decision of the Management in the matter of award of punishment to its employee who is found to have commuted some misconduct. The limits of the Tribunal's jurisdiction in dealing with an industrial dispute arising on account of dismissal of an employee are well established by several decisions of the Supreme Court. In Indian Iron and Steel Co., Ltd. v. Their Workmen, AIR 1958 SC 130. It was laid clown that the Management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, it is open to the Industrial Tribunal to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not however, act as a Court of appeal and substitute its own judgment for that of the Management The Tribunal can interfere with the decision of the Management in the following cases only (a) when there is a want of good faith, (b) when there is victimisation or unfair labour practice, (c) when the Management has been guilty of a basic error or violation of a principle of natural justice, and (d) when on the materials, the finding of the management is completely baseless or perverse. The same view was reiterated in G. Mckenzie and Co., Ltd. v. Its Workmen, 1959-1 Lab LJ 285; (AIR 1959 SC 389) wherein it was further laid down at page 289 that:
"It is for the management to determine what constitutes major misconduct within its standing orders sufficient to merit dismissal of a workman but in determining such misconduct it must have facts upon which to base its conclusions and it must act in good faith without caprice or discrimination and without motive of vindictiveness, intimidation or resorting to unfair labour practice and there must be no infraction of the accepted rules of natural justice. When the management does have facts from which it can conclude misconduct, its judgment cannot be questioned provided the abovementioned principles are not violated. But in the absence of those facts or in a case of violation of the principles set out above, its position is untenable".
The next case on the point is Punjab National Bank, Ltd. v. Their Workmen, 1959-2 Lab LJ 666: (AIR 1960 SC 160). Therein it was held that:
"in cases where an industrial dispute is raised on the ground of dismissal and it is referred to the tribunal for adjudication, the tribunal naturally wants to know whether the impugned dismissal was preceded by a proper enquiry or not. Where such a proper enquiry has been held in accordance with the provisions of the relevant standing orders and it does not appear that the employer was guilty of victimisation or any unfair labour practice, the tribunal is generally reluctant to interfere with the impugned order".
It was further held:
"There is another principle which has to be borne in mind when the tribunal deals with an industrial dispute arising from the dismissal of an employee. We have already pointed out that before an employer can dismiss his employee he has to hold a proper enquiry into the alleged misconduct of the employee and that such an enquiry must always begin with the supply of a specific chargesheet to the employee"
These principles have been referred to in a number of other decisions, some of which have been relied upon by Mr. Roy and which will be referred to here-inafter Mr. Roy contends that in the light of the principles laid down in the above decisions, it must be held that the Tribunal had no power to interfere with the punishment which the Management had decided to award to Ram Dayal Singh. Mr. Roy stressed the fact that the finding of the workman's guilt had been arrived at by the Management as a result of a proper managerial enquiry upon a proper chargesheet and that finding had been found by the Tribunal to be correct. Mr. Roy contended that in such circumstances, all that had remained for the Management was to decide what punishment was to be awarded to the workman, and if the punishment of dismissal was justified under the relevant standing orders, then it was entirely within the discretion of the Management with which the Tribunal was not entitled to interfere. In support of his contention Mr. Roy relied upon Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar, 1961-1 Lab LJ 511 (SC), Coimbatore Cotton Mills Ltd. v. Central Govt. Industrial Tribunal, 1959-2 Lab LJ 512 (Mad); Sridharan Motor Service, Attur v. Industrial Tribunal, Madras, 1959-1 Lab LJ 380 (Mad); National Tobacco Co. of India Ltd. v. Fourth Industrial Tribunal, 1960-2 Lab LJ 175: (AIR 1960 Cal 249); Caltex (India) Ltd. v. E. Fernandes, (S) AIR 1957 SC 326 and The Bata Shoe Co (P) Ltd. v. D. N. Ganguly, AIR 1961 SC 1158.
8. 1961-1 Lab LJ 511 (SC) was a case of a single workman who happened to be the Vice President of the Workmen's Union and was found guilty of dereliction of duty and dismissed after a proper managerial enquiry. The Industrial Tribunal took the view that there was room for suspicion that the Management wanted somehow or the other to get rid of him. The reason why the Tribunal entertained this suspicion was that the recognition of the Union had been withdrawn at about that very time. But the Supreme Court held that that was not a relevant consideration because the withdrawal of recognition was due to short illegal strikes fomented by the Union during the preceding three months. Therefore, the Supreme Court held that that case was not covered by any of the four grounds on which a Tribunal could interfere with the Management's order of dismissal. It was in this context that their Lordships observed:
"Dereliction of duty was clearly established in this case; the management had the right of dismissal under the relevant standing orders; proper enquiry was held and the explanation of the workman was found to be childish. In these circumstances, there was no ground for the tribunal to substitute its own judgment for the judgment of the management in the matter of punishment to be meted out. The two reasons given by the tribunal for interfering with the order of management do not, in our opinion, come within any of the four principles mentioned above".
It is clear, therefore, that the case before their Lordships did not involve any question of want of good faith, victimisation or unfair labour practice. No question arose of making discrimination between one workman and another in the matter of awarding punishment for the same or similar offence, as in the instant case. There was no pick and choose or double dealing on the part of the Management, as in the present case. That case is, therefore, distinguishable from the facts of the present case. No question of discrimination, pick and choose or double dealing was also involved in any of the other cases relied upon by Mr. Roy. That is why it was held in 1959-2 Lab LJ 512 (Mad) that the quantum of punishment was entirely a matter within the discretion of the Management and the Tribunal had no jurisdiction to interfere with that, (S) AIR 1957 SC 326 was also a case of a single workman whom the Management had found guilty after enquiry upon a proper chargesheet. The Tribunal had come to the conclusion that the enquiry which was conducted by the Management was fair and no principles of natural justice had been violated in the conduct of the enquiry. The Management had bona fide come to the conclusion that the dismissal was the proper punishment to be meted out to the workman.
The Supreme Court observed that in those circumstances, the only jurisdiction which the Tribunal had, was to determine whether a prima facie case for the meting out of such punishment had been made out by the employer and the employer was not actuated by any mala fides or unfair labour practice or victimisation, and if the case did not fall in this category, then the Tribunal had no power to substitute another punishment for the one which the Management had decided to impose. This decision indicates that the Tribunal has power to interfere with the quantum of punishment where it finds that the Management has been actuated by mala fides, unfair labour practice or victimisation. The present case is one of the latter category inasmuch as the Tribunal has come to the conclusion that the Management had discriminated between two sets of its employees placed in similar situation and that the reason for making such discrimination was the action of respondent No. 2 in complaining to the Inspector of Mines against certain activities of the Management This Supreme Court case is, therefore, of no assistance to Mr. Roy. The legal position has been made clear in AIR 1961 SC 1158, where it was observed at page 1163:
"There is no doubt that if an employer makes an unreasonable discrimination in the matter of taking back employees, there may in certain circumstances be reason for the industrial tribunal to interfere, but the circumstances of each case have to be examined before the tribunal can interfere with the order of the employer in a properly held managerial enquiry on the ground of discrimination".
In the particular case before their Lordships, however, it was held that the discrimination alleged was not on the part of the management, but had been forced upon it on account of the Workmen's Union which itself opposed the reinstatement of some of the workmen. So it was observed that the charge of discrimination could not be properly laid at the door of the Management and if there was anybody to blame for it, it was the Union. This case also is of no avail to Mr. Roy. On the contrary, it shows that in a proper case it is open to the Tribunal to interfere with the punishment meted out to a workman, even though there has been a proper managerial enquiry upon a proper chargesheet. The question as to whether a case has been made out for the interference of the Industrial Tribunal must be determined with reference to the circumstances of each case and the power of the Industrial Tribunal to interfere does not come to an end only where it finds that there was a proper managerial enquiry upon a proper chargesheet. It is open to the Tribunal to interfere if it finds that there has been an unreasonable discrimination in the matter of punishment meted out to a particular workman That is exactly what the Industrial Tribunal has done in this case. 1959-1 Lab LJ 380 (Mad) was a decision upon its own peculiar facts. On a joint petition of, the Management and the workers, a reference was made to the Industrial Tribunal, Madras. During the pendency of the reference, the Management revised the time tables which prejudicially affected the workers in various ways, as a consequence of which the workers went on strike. Thereupon the Management framed charges against several workers and entrusted the inquiry to an advocate. The workers, however, refused to participate in the inquiry, at the conclusion of which the Management dismissed the workers against whom charges had been framed and applied to the Tribunal under Section 33(2)(b) of approval of their action. The Tribunal approved of their action in regard to some, but not as to the other workers. The Management moved the Madras High Court for issue of a writ to quash the order of the Tribunal, and the High Court in allowing the Management's application observed:
"If you punish a man for a wrong which someone else has committed, it would be right to say that you are victimising him; because then you are literally making scapegoat of him. Again if you punish a man for something which he has done in another context which has no relation or bearing to the charge which has been framed against him, the charge and inquiry being only a pretext to punish him for something which he has done somewhere else, then also it would be right to say that you are victimising him. But, if you punish a man for something which he has himself done and the offence found to have been committed and the punishment awarded in respect of it which directly related to each other, I do not see how it can be said there has been any victimisation".
It will thus be observed that the facts of the Madras case were entirely different and so the observations made therein cannot be applied to the present case. What constitutes victimisation was indicated by a learned Single Judge of the Calcutta High Court in 1960-2 Lab LJ 175: (AIR 1960 Cal 249) in the following terms at page 187 (of Lab LJ): (at p. 257 of AIR):
"As far as I can see, victimization means one of two things. The first is where the workman concerned is innocent and yet he is being punished because he has in some way displeased the employer, for example, by being an active member of a union of workmen who were acting prejudicially to the employer's interest. The second case is where an employee has committed an offence but he is given a punishment quite out of proportion to the gravity of the offence, simply because he has incurred the displeasure of the employer in a similar manner as mentioned above. But where it is found that the employee is guilty of gross misconduct, then there cannot be any question of victimization because it merits dismissal by itself."
This decision makes it abundantly clear that there can be a case of victimisation even though the punishment imposed by the Management upon a guilty workman is within the relevant standing orders, where an extreme punishment or a punishment quite out of proportion to the gravity of the offence has been meted out to him because he has in sonic way displeased the employer or incurred his displeasure, and that is the position in the present case. The two other Pump Khalasis, who were found sleeping on duty were simply warned. But for a similar offence, warning was not considered as an adequate punishment by the Management in case of Ram Dayal Singh because he had incurred the displeasure of the employer by complaining against it to the Inspector of Mines. The Tribunal was, therefore, amply justified in treating it to be a case of discrimination amounting to victimisation or unfair labour practice in my opinion, the present case is an indication of double dealing on the part of the Management dictated by considerations which cannot be regarded as bona fide and, therefore, it undoubtedly fell within the ambit of the Tribunal's power of interference.
9. I may add that the following provisions contained in the Industrial Disputes Act 1947 amply indicate that the Industrial Tribunal has power in appropriate cases to interfere with the punishment of dismissal meted out by the employer to its workmen;
(i) Section 2(k) which defines "Industrial Dispute";
(ii) Section 10(1) (d) which provides for reference to a Tribunal for adjudication a dispute relating to any matter specified in the Second Schedule of the Act; and
(iii) Item No. 3 of the Second Schedule which reads:
"Discharge in dismissal of workmen including reinstatement of, or grant of relief to workmen wrongfully dismissed"
It is, however, clear that the power or interference can be exercised by the Tribunal only if the case falls within any of the four principles enunciated by the Supreme Court in the cases to which I have already referred.
10. Finally, Mr. Roy contended that the reason why the Management had awarded the punishment of dismissal to Ram Dayal Singh may have been that the pump which was in his charge was of a higher horse-power in comparison to the pump or pumps in charge of the other two Pump Khalasis. But it is clear that this contention is not available to Mr. Roy who conceded before us that there is no material on the record to this effect. It must, follow, therefore, that the second point raised by Mr. Roy cannot prevail.
11. From the above discussions it is manifest that no case has been made out for interference with the impugned Award, and this application must, therefore, be dismissed. There will, however, be no order for costs.
Choudhary, J.
12. I agree.