Gujarat High Court
Divisional Controller vs Shri Vinayak Karmachari Mandal on 22 February, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/4331/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4331 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DIVISIONAL CONTROLLER
Versus
SHRI VINAYAK KARMACHARI MANDAL
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Appearance:
MR GM JOSHI for the PETITIONER(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 22/02/2018
ORAL JUDGMENT
1. Heard Mr. Joshi, learned advocate for the petitioner.
2. In this petition, the petitioner Gujarat Page 1 of 24 C/SCA/4331/2016 JUDGMENT State Road Transport Corporation has challenged award dated 04.09.2015 passed by learned Tribunal at Rajkot in Reference (IT) No.19 of 2013 whereby the learned Tribunal at Rajkot set aside the order dated 03.07.1996 passed by the reviewing authority.
2.1 The learned Tribunal, by impugned award also issued further directions with regard to benefits for intervening period. Said directions are also under challenge.
3. Feeling aggrieved by the said award the corporation has taken out this petition.
4. So far as the factual background is concerned, it has emerged from the record that in connection with reported misconduct against present respondent (workman), a chargesheet was issued. In pursuance to the chargesheet domestic inquiry was conducted. Upon conclusion of the domestic inquiry, the inquiry officer submitted his findings and report to the disciplinary authority wherein he held that the charge and Page 2 of 24 C/SCA/4331/2016 JUDGMENT allegation against the workman are proved. 4.1 The disciplinary authority concurred with the findings and report of the inquiry officer. 4.2 Having regard to the fact that charge and allegations are proved and also having regard to the gravity of misconduct, disciplinary authority passed order dated 06.2.1995 and dismissed the workman from service.
4.3 The petitioner felt aggrieved by the said order dated 06.2.1995. He filed first appeal before the appellate departmental authority. 4.4 The appellate authority vide order dated 03.07.1996 modified the order dated 6.2.1995. The said authority directed that the workman be reinstated in service without backwages and the period between the date of dismissal and the reinstatement shall be treated as period of absence/ leave without wages and that the respondent workman will not be entitled to the benefits for the intervening period but it shall be considered as notional pay. The said authority substituted the penalty with order for stoppage Page 3 of 24 C/SCA/4331/2016 JUDGMENT of 2 increments with future effect (instead of dismissal from service).
4.5 Against the said order dated 03.7.1996, the workman, after gross delay of 17 years from the date of order by first appellate authority, raised industrial dispute.
4.6 Appropriate government referred the dispute for adjudication to learned Tribunal at Rajkot. 4.7 Before the learned Tribunal, the workman filed pursis (Exh33) and declared that he does not challenge the legality and propriety of the inquiry.
4.8. Thus, the dispute with regard to legality and propriety did not survive. 4.9 In view of the said declaration by the workman, the scope of the inquiry by the learned Tribunal, in connection with the penalty order passed by the employer, was very restricted and the learned Tribunal, therefore, was obliged to proceed in the case and decide the matter on the premise that the employer had conducted legal and fair inquiry.
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C/SCA/4331/2016 JUDGMENT 4.10 Despite the limited scope of jurisdiction, the learned Tribunal entered into controversy about adequacy of evidence and propriety and sufficiency of the reasons recorded by the reviewing authority.
4.11 Learned Tribunal held that the order passed by the reviewing authority whereby the penalty came to be enhanced, is without sufficient reasons.
4.12 On the said solitary ground, the learned Tribunal interfered with the order passed by reviewing authority (and confirmed by second appellate authority) and passed impugned award with above mentioned direction.
5. While assailing the award, the learned advocate for the petitioner corporation submitted that since the dispute was raised after gross delay of more than 17 years, the reference should not have been entertained on the ground of inordinate and gross delay and the reference should have been rejected. He further submitted Page 5 of 24 C/SCA/4331/2016 JUDGMENT that the order of penalty was short of discharge or dismissal and that therefore, the learned Tribunal could not have interfered with such order. He submitted that learned Tribunal exercised jurisdiction with material irregularity. According to learned advocate for the petitioner there was no justification to substitute the penalty determined by the corporation.
6. Learned advocate Mr. Rajyaguru for the respondent submitted that the learned Tribunal has not committed any error in interfering with the order of the reviewing authority because the reviewing authority exercised the authority without sufficient reasons. According to learned advocate for the respondent there is no error in the award and that therefore the award may not be disturbed. Any other submission is not urged.
7. I have considered the rival submission and material available on record as well as impugned Page 6 of 24 C/SCA/4331/2016 JUDGMENT award.
8. It is necessary and appropriate to take into account certain relevant dates.
a. Disciplinary authority passed the order of penalty in February, 1995.
b. The Appellate authority passed the order in July, 1996.
c. The respondent challenged the order of appellate authority in 2013 i.e. after gross and inordinate delay of about 17 years.
8.1 Undisputedly, the claimant did not offer any explanation with regard to inordinate and gross delay in raising industrial dispute against the order dated July, 1996 passed by the reviewing authority.
8.2 Even before this Court, any explanation with regard to such gross delay is not offered. 8.3 After passage of almost 17 years the dispute, if any, with regard to reviewing authority's order, would not survive. Thus, actually a dead dispute and stale claim were placed before the Page 7 of 24 C/SCA/4331/2016 JUDGMENT learned Tribunal.
9. The said fact is the first ground against the impugned award. The learned Tribunal passed impugned award without considering the said aspect or by ignoring the said aspect.
9.1 Another ground which is raised against impugned award is that the order of penalty was short of discharge or dismissal and that therefore in absence of any evidence about victimisation or the finding that fair inquiry was not conducted before imposing penalty and/ or the penalty is shockingly disproportionate and it hinges on verge of victimisation, the learned Tribunal could not have interfered with the order dated 03.07.1996.
10. So far as the first ground against the impugned award is concerned, it is necessary to note that the workman raised the dispute after gross delay of 17 years. The claimant did not offer any explanation for the delay. The claimant Page 8 of 24 C/SCA/4331/2016 JUDGMENT failed to make out sufficient cause for raising the dispute after such gross delay.
10.1 Even if the Industrial Disputes Act does not prescribe period of limitation for raising dispute, when the reference is placed before the Court after such gross delay of 17 years (i.e. when the dispute is raised after such gross delay)it is the duty and obligation of the workman to offer explanation for such delay and laches and the workman would be under obligation to at least satisfy the Court with regard to the reason for not raising dispute within reasonable time.
10.2 The dispute which is brought before the Court after such gross delay, would ordinarily, amount to dead dispute and stale claim. Such dead dispute and stale claim would, ordinarily, not be entertained by the Court.
10.3 Therefore, to breathe life in such stale claim and dead dispute and to make it maintainable and to get it adjudicated on merits, the workman should at least offer satisfactory Page 9 of 24 C/SCA/4331/2016 JUDGMENT explanation and make out sufficient cause. The Court cannot casually and lightly ignore such gross and inordinate delay.
10.4 On this count, reference may be had to the observations by Apex Court in case of Prabhakar vs. Joint Director, Sericulture Department [(2015) 15 SCC 1] wherein Hon'ble Apex Court observed that: "8. From the facts narrated above, it becomes clear that for a period of fourteen years no grievance was made by the petitioner qua his alleged termination. Though it was averted that the petitioner had approached the Management time and again and was given assurance that he would be taken back in service. there is nothing on record to substantiate this. No notice was served upon the Management. There is no assurance given in writing by the Management at any point of time. Such assertions are clearly selfserving. Pertinently. even the Labour Court has not accepted the aforesaid explanation anywhere and has gone by the fact that the dispute was raised after a delay of fourteen years. Therefore, keeping in mind the aforesaid facts, we would decide the issue which has arisen, namely, whether reference of such a belated claim was appropriate.
9. It may be stated that the question is of utmost importance as it is seen that many times. as in the instant case, the workers raise dispute after a number of years of the cause of action. Whether the dispute can still be treated as surviving? Or whether it can be said that the dispute does not exist when the workmen concerned after their say termination kept quiet for a number of years and thus acquiesced into the action?
20. At this stage, it may be pointed out that admittedly the law of limitation does not apply to industrial disputes. The Limitation Act does not apply to the proceedings under the Industrial Disputes Act and under the Industrial Disputes Act no period of limitation is prescribed. This is now well settled by a series of judgments of this Court.
21. On the reading of these judgments, which are discussed hereinafter, it can be discerned that in some decisions where the reference was made after a lapse of considerable period, the Court did not set aside the reference but moulded the relief by either granting reinstatement but denying back wages, fully or partially, or else granted compensation, denying reinstatement. On the other hand, in some of the decisions, the Court held that even when there was no time prescribed to exercise power under Section 10 of the Act, such a power could not be exercised at any point of time to revive matters which had since been settled or had to become stale. We would like to refer to these judgments at this juncture.
24. Again in Vazir Sultan Tobacco Co. Ltd. v. State of AR". the Andhra Page 10 of 24 C/SCA/4331/2016 JUDGMENT Pradesh High Court held that reference made nearly six years after in:
dispute amounted to being inordinate, unreasonable and unjustifiable.
25. In Nedungadi Bank Ltd. v. KP. Madhavankutt'yl4 the Court cautioned that power of reference should be exercised reasonably and in a rational manner and not in a mechanical fashion. It was specifically observed the power to make reference cannot be exercised to revive settled matters or to refer stale disputes in spite of absence of statutory limitation period. The Court not only reiterated that the courts had power of judicial review. though to limited extent, but also made the following pertinent observations on delay: (SCC pp. 460 6l. Paras 68) "6. Law does not prescribe any timelimit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subjectmatter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent.
7. In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question.
8. It was submitted by the respondent that once a reference has been made under Section 10 of the Act a Labour Court has to decide the same and the High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. That is not a correct proposition to state. An administrative order which does not take into consideration statutory requirements or travels outside that is certainly subject to judicial review, limited though it might be. The High Court can exercise its powers under Article 226 of the Constitution to consider the question of the very jurisdiction of the Labour Court, In Page 11 of 24 C/SCA/4331/2016 JUDGMENT National Engg. Industries Ltd. v. State of Rajasthan" this Court observed: (SCC 13. 393, para 24) '24. It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act, Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference"
29. If one examines the judgments in the aforesaid perspective, it would be easy to reconcile all the judgments. At the same time, in some cases the Court did not hold the reference to be bad in law and the delay on the part of the workman in raising the dispute became the cause for moulding the relief only. On the other hand, in some other decisions, this Court specifically held that if the matter raised is belated or stale that would be a relevant consideration on which the reference should be refused. Which parameters are to be kept in mind while taking one or the other approach needs to be discussed with some elaboration, which would include discussion on certain aspects that would be kept in mind by the courts for taking a particular view. We, thus, intend to embark on the said discussion keeping in mind the central aspect which should be the forefront, namely, whether the dispute existed at the time when the appropriate Government had to decide whether to make a reference or not or the Labour Court/Industrial Tribunal to decide the same issue coming before it.
34. To understand the meaning of the word "dispute", it would be appropriate to start with the grammatical or dictionary meaning of the term;
"Dispute'. to argue about, to contend for, to oppose by argument, to call in question to argue or debate (with, about or over) a contest with words; an argument; a debate; a quarrel;"
35. Black's Law Dictionary, 5th Edn., p. 424 defines "dispute" as under:
"DisputeA conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined."
36. Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Hence an "industrial dispute" cannot be said to exist until and unless the demand is made by the workmen and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant but we are not concerned with this aspect in the instant case. Therefore, what would happen if no demand is made at all at the time when the cause of action arises? In other words, like in the instant case, what would be the consequence if after the termination of the services of the petitioner on 141985, the petitioner does not dispute his termination as wrongful and does not make any demand for reinstatement for a number of years? Can it still be said that there is a dispute? Or can it be said that workmen can make such demand after a lapse of several years and on making such demand dispute would come into existence at that time. It can always be pleaded by the employer in such a case that after the termination of the services when the workman did not raise any protest and did not demand his reinstatement, the employer presumed that the workman has accepted his termination and, therefore, he did not raise any dispute Page 12 of 24 C/SCA/4331/2016 JUDGMENT about his termination. It can be said that workman, in such a case, acquiesced into the act of the employer in terminating his services and, therefore, accepted his termination. He cannot after a lapse of several years make a demand and then convert it into a "dispute" what had otherwise become a buried issue.
37. Let us examine the matter from another aspect viz. laches and delays and acquiescence.
38. It is now a wellrecognised principle of jurisprudence that a right not exercised for a long time is nonexistent. Even when there is no limitation Period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and nonsuited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".
39. This principle is applied in those cases where discretionary orders of the court are claimed, such as specific performance, permanent or temporary lnjunction appointment of Receiver, etc. These principles are also applied In the wit petitions tiled under Articles 32 and 226 of the Constitution of India In such cases, courts can still refuse relief where the delay on the petitioners part has prejudiced the respondent even though the petitioner might have 3 Come to court within the period preset abide by the Limitation Act.
40. Likewise, it a patty having a tight stands by and sees another acting in a manner inconsistent with that right and makes no objection while the ac is in progress he cannot afterwards complain This principle is based on the doctrine of acquiescence implying that In such a case the party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.
41. Thus, in those cases where period of limitation is prescribed within Which the action is to be brought before the court, if the action is not brought within that prescribed period the aggrieved party loses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other c cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity are based on principles relatable to d sound public policy that if a person does not exercise his right for a long time then such a right is non existent.
11. In view of the facts mentioned above and in light of above quoted observation by Hon'ble Apex Court, it becomes clear that the learned Tribunal exercised the jurisdiction with material irregularity and that the impugned order suffers Page 13 of 24 C/SCA/4331/2016 JUDGMENT from material and substantial error of jurisdiction by the learned Tribunal. 11.1 In view of the facts and circumstances of the case, the learned Tribunal should have declined to entertain reference after gross delay, more so when the workman did not offer any explanation about the cause, if any, for such delay.
11.2 Since, learned Tribunal entertained the reference in absence of any explanation by the workman for the delay and without being satisfied about the workman's explanation the award deserves to be set aside on that count.
12. As mentioned above, it has also emerged from the award that the workman had admitted legality and propriety of the inquiry.
12.1 The said declaration of the workman establishes that legal and fair inquiry was conducted by the employer.
12.2 In that view of the matter, the jurisdiction of learned Tribunal was circumscribed. Page 14 of 24
C/SCA/4331/2016 JUDGMENT 12.3 In this context, profitable reference can be had to the recent decision by Hon'ble Apex Court in case of Management of Bharat Heavy Electricals Ltd. v. M. Mani [(2018) 1 SCC 285] wherein Hon'ble Apex Court observed and held in Para18 and 19 that: "18. In our opinion, once the Labour Court upheld the departmental enquiry as being legal and proper then the only question that survived for consideration before the Labour Court was whether the punishment of "dismissal" imposed by the appellant to the respondents was legal and proper or it requires any interference in its quantum.
19. In other words, the Labour Court should have then confined its enquiry to examine only one limited question as to whether the punishment given to the respondents was, in any way, disproportionate to the gravity of the charge levelled against them and this, the Labour Court should have examined by taking recourse to the provisions of Section 11A of the Industrial Disputes Act, 1947 (in short "the Act") and the law laid down by this Court in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. It was, however, not done thereby rendering the order of the Labour Court legally unsustainable."(emphasis supplied) 12.4 On this count profitable reference can also be had to the observations by Apex Court in case of General Secretary, South Indian Cashew Factories Workers Union vs. Managing Director, Kerala State Cashew Development Corporation Ltd. [(2006) 5 SCC 201], where Hon'ble Apex Court observed that:
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C/SCA/4331/2016 JUDGMENT "16. The Labour Court had earlier held that the enquiry was properly held and there was no violation of the principles of natural justice and that the findings were not perverse. The vitiating facts found by the Labour Court against the enquiry are erroneous and are liable to be set aside. If enquiry is fair and proper, in the absence of any allegations of victimization or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed. Section 11A of the Act gives ample power to the Labour Court to reappraise the evidence adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment. Section 11A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as clearly mentioned in the Section itself. Before the introduction of Section 11A in Indian Iron and Steel Co. Ltd. v. Their Workmen [(1958) SCR 667] this Court held that the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the Management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management. There is no allegation of unfair labour practice, victimisation etc. in this case. The powers of the Labour Court in the absence of Section 11A is illustrated by this Court in Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management [(1973) 1 SCC 813]. When enquiry was conducted fairly and properly, in the absence of any of the allegations of victimisation or malafides or unfair labour practice, Labour Court has no power to interfere with the punishment imposed by the management. Since Section 11A is not applicable, Labour Court has no power to reappraise the evidence to find out whether thefindings of the enquiry officer are correct or not or whether the punishment imposed is adequate or not. Of course, Labour Court can interfere with the findings if the findings are perverse. But, here there is a clear finding that the findings are not perverse and principles of natural justice were complied with while conducting enquiry."
13. In this context, it is also relevant to note that the charge and allegation against the respondent who, at the relevant time, worked as driver, was about negligence in performance of duty which resulted into and caused fatal accident (death of a girl child).
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C/SCA/4331/2016 JUDGMENT 13.1 Upon conclusion of the inquiry, Inquiry
Officer recorded the findings that the charge and allegations are proved.
13.2 The disciplinary authority concurred with the findings of the Inquiry Officer and passed order dated 6.2.1995 of dismissal from service. 13.3 The workman felt aggrieved by said penalty and filed appeal before the first appellate authority.
14. When the workman filed appeal before appellate authority, the appellate authority partly allowed the appeal with the direction that the order of termination from service be set aside and the workman may be reinstated in service however without backwages and the period between dismissal and reinstatement shall be treated as Leave with Pay. The appellate authority also substituted the penalty with order to stop 2 increments with future effect.
15. It is not in dispute that any procedural irregularities or any other irregularity with Page 17 of 24 C/SCA/4331/2016 JUDGMENT regard to the proceedings/ domestic inquiry conducted against the respondent was not proved before the Labour Court.
16. Actually the workman admitted legality and propriety of domestic inquiry by filing a pursis before Labour Court.
17. In that view of the matter and in light of observations in case of BHEL & South Indian Cashew Factories Workers' Union, the Tribunal's jurisdiction was restricted and it did not extend to examining adequacy of evidence much less about the driver's (workman's) intention.
18. Despite this position, the learned Tribunal conducted the proceedings as if the learned Tribunal was considering appeal against the decision of the authority.
What is more important is the fact that on one hand the Court acknowledged, believed and held that the allegation and charge is proved Page 18 of 24 C/SCA/4331/2016 JUDGMENT however on the other hand the learned Court examined the case by imparting principle of intention in the matter of misconduct and domestic inquiry whereas the said issue is to be decided in light of preponderance of probability and not intention to commit misconduct. Having accepted that the charge about misconduct is proved, the Court ought to have appreciated that in such cases intention of the employee is not relevant consideration. Despite this position learned Court assumed that the driver had no intention to commit misconduct (fatal accident) and that therefore said penalty should not have been imposed. Differently put, the learned Court considered the quantum of penalty on the basis of assumed absence of intention to commit misconduct. The issue about penalty in respect of proved misconduct cannot be decided on assumption about intention/ absence of evidence by applying standard or principle of intention.
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19. The learned Tribunal entered into the process of examining intention of the employee without appreciating the fact that said aspect is irrelevant.
19.1 By conducting proceedings in such manner, the learned Tribunal committed material irregularity i.e. learned Tribunal travelled beyond the boundary of its jurisdiction. 19.2 This aspect is born out from the record and fortified by the above quoted observation by Hon'ble Apex Court in case of Management of Bharat Heavy Electricals Ltd. v. M. Mani (Supra) and the observation by Hon'ble Apex Court in case of General Secretary, South Indian Cashew Factories Workers Union vs. Managing Director, Kerala State Cashew Development Corporation Ltd. (supra).
20. From above mentioned facts and in light of foregoing discussion, it becomes clear that the learned Tribunal committed material irregularity in exercising of jurisdiction and in disturbing Page 20 of 24 C/SCA/4331/2016 JUDGMENT order passed by departmental authority on the assumed absence of intention.
21. The learned Tribunal also failed to appreciate that order which was challenged by the claimant was an order of penalty which was short of discharge or dismissal. The learned Tribunal was concerned with the penalty order other than order of discharge or dismissal and that therefore the learned Tribunal was not justified in interfering with such order or penalty (i.e. which is short of discharge or dismissal) in absence of evidence about victimization and without reaching to the conclusion and without holding that the penalty in question is shockingly disproportionate or in nature of victimisation. The learned Court ought not have interfered with and disturbed the employer's decision as regards quantum of penalty when victimisation is not proved and it is also not held that penalty is shockingly disproportionate Page 21 of 24 C/SCA/4331/2016 JUDGMENT and such which any prudent employer would not impose.
22. While examining the propriety of quantum of penalty, it is not within jurisdiction of learned Tribunal or learned Labour Court to weigh the quantum of penalty in golden scale. It is also not open and permissible to the learned Tribunal or learned Labour Court to examine propriety of penalty according to its own standards or opinion.
22.1 The determination of quantum of penalty in case of proved misconduct is within the exclusive realm of employer's discretion. Learned Tribunal ought to keep in focus the fact that proved misconduct is antithesis of victimization. 22.2 Learned Tribunal or learned Labour Court can interfere with the quantum of penalty only if the quantum of penalty is found to be shockingly disproportionate and order of penalty is such which any prudent employer would not impose or if Page 22 of 24 C/SCA/4331/2016 JUDGMENT it indicates victimization or in case where absence of good faith in established.
22.3 Even in such cases, learned Labour Court or learned Tribunal can interfere with the penalty only after recording conclusion to said effect and reason to support and justify such conclusion. In absence of any proof and conclusion about the victimization and without findings and conclusion that the penalty determined by the reviewing authority was shockingly disproportionate and it was in nature of victimization the order passed by the reviewing authority could not have been disturbed.
23. In present case what is more important is the fact that on account of proved misconduct fatal accident occurred which caused and which resulted into death of a girl child. In this view of the matter the learned Court should not have interfered with the employer's decision about penalty so lightly and casually.
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24. In present case learned Tribunal failed to recognise and observe said limitations and in absence of evidence about victimisation and without recording any findings and satisfaction about above mentioned aspects, the learned Tribunal casually and lightly disturbed the Penalty order passed by the reviewing authority. In present case the Tribunal has not reached to / not recorded such conclusion.
25. In this view of the matter, the award passed by the learned Tribunal is not sustainable.
26. For reasons mentioned above, the award deserves to be set aside and is accordingly set side.
27. The order dated 3.7.1996 passed by the appellate authority, therefore, stands restored.
28. With aforesaid order, the petition is disposed of.
(K.M.THAKER, J) saj Page 24 of 24