Bombay High Court
Mahindra & Mahindra Ltd. vs Shri N.B. Narawade And Shri P.W. Bhuyar, ... on 23 August, 2002
Equivalent citations: 2002(6)BOMCR537, (2003)ILLJ520BOM
Bench: H.L. Gokhale, Nishita Mhatre
JUDGMENT Mhatre, J.
1. This Appeal is directed against the order of a learned Single Judge upholding the Award of the Labour Court directing the appellants to reinstate respondent-workman (hereinafter referred to as the workman) with continuity of service and payment of 2/3rd backwages. The workman was employed initially on a temporary basis in May, 1978. He was made permanent on 9.8.1981 and designated as a Fitter in the Chassis Assembly Department. A chargesheet was issued to him by the appellants on 27.11.1991 alleging that the workman had used abusive and filthy language against his supervisor. An enquiry was instituted against the workman as the appellants did not accept his reply. On the findings and report submitted by the Enquiry Officer, the appellants decided to dismiss the workman. Accordingly, the workman services were terminated by way of dismissal on 5.3.1993 after taking into account his past service record.
2. A reference was made being Reference (IDA) No.66 of 1994 for adjudication of the dispute regarding reinstatement with continuity of service and full backwages of the workman with the appellants. By Award Part-I dated 5-9-1996, the Labour Court held that the enquiry instituted against the workman was not fair and proper and, therefore, set aside the same as the chargesheet issued to the workman was vague. Evidence was led by both the parties afresh before the Labour Court and the exact abusive words were placed before the Court. By Award Part-II dated 13.3.2001, the Labour Court held on the basis of the evidence on record that the workman was guilty of misconduct alleged against him. However, the Labour Court was of the view that the misconduct was not such as to warrant punishment of dismissal and, therefore, in exercise of the powers vested in it under section 11-A of the Industrial Disputes Act, 1947 directed the appellants to reinstate the workman with continuity of service. By way of punishment, the Labour Court deprived the workman of 1/3rd of his backwages for the intervening period, as according to the Labour Court, this would be a sufficient deterrent to the workman. Being aggrieved by this award, the appellants filed the writ petition before this Court. The learned Single Judge confirmed the Award and held that deprivation of 1/3rd of backwages for the intervening period from 5.3.1993 till the date of the award was sufficient to punish the workman for having committed the misconduct alleged against him. Aggrieved by this order of the learned Single Judge, the present appeal has been filed by the appellants.
3. Mr.Singh has appeared for the appellant company and Mr.Nagle for the respondent No.1 workman. As requested by both the Counsel, we are hearing the Appeal finally at the admission stage itself. We would like to record that before hearing the matter finally, we explored the possibility of a settlement, but that was not possible. Mr. Singh submitted that in the facts of the present case the punishment imposed by the appellants should be left undisturbed. Alternatively, he submitted that the appellants may consider some appropriate amount for a settlement.
4. Mr. Nagle, on the other hand, submitted that the order passed by the Labour Court was left undisturbed by the learned Single Judge, and in his opinion denial of one-third back wages was itself a sufficient punishment. The figure submitted by the appellants for monetary settlement was found to be unjust and inadequate by the workman. He is today 43 years old and Mr. Nagle submitted that reinstatement should be left undisturbed but with back wages as deemed appropriate by the Court.
5. The main thrust of the argument of Mr. Singh, learned Counsel appearing on behalf of the appellants, is that the appellants, after considering the past service record of the workman, which according to the learned Counsel was tainted, had decided that the proper punishment for the misconduct proved against the workman was that of dismissal. The learned Counsel submitted that the Labour Court had fallen in error by not considering the gravity of the past service record while exercising its powers under section 11-A by reducing the punishment imposed on the workman. The past record contains three entries prior to the present misconduct. According to him, the workman had been suspended from work for one day on 4.1.1979 for refusal to do certain work. Again on 7.8.1984, a warning was issued to the workman for refusal to perform certain work. He was also denied wages for that particular day. In 1989, a chargesheet was issued to the workman for assaulting a co-workman. An enquiry was conducted and the workman was suspended from work for four days. The learned Counsel, therefore, submits that this service record of the workman does not warrant any leniency and that the punishment of dismissal is wholly justified and commensurate with the misconduct proved against the workman.
6. The learned Counsel relied on the judgments of the Apex Court in the cases of Christian Medical College Hospital Employees Union v/s. Christian Medical College Vellore Association and Ors. ; U.P. State Road Transport Corporation v/s. Subhash Chandra Sharma & Ors. reported in 2000 II CLR 13; Devendra Swamy v/s. Karnataka State Road Transport Corporation reported in 2002 I CLR 323 as also the judgments of this Court in the cases of Sarabhai M. Chemicals (S.M. Chem. & Elect.) Ltd. v/s. M.S. Ajmere reported in I L.L.J. H.C. Bom. 295; USV Ltd. v/s. Maharashtra General Kamgar Union & Anr. reported in 1997 II CLR 312 and Breach Candy Hospital and Research Centre V/s. Babulal B. Pardeshi & Anr. reported in 2002 (2) Mh.L.J. 227 in support of his contention that the powers vested in the Labour Court under section 11-A are not unbridled and must be exercised judiciously if the punishment of dismissal or discharge is found to be shockingly disproportionate and only after taking into consideration the past service record of the workman.
7. Per contra, the learned counsel for the workman submits that the Labour Court has in exercise of power vested in it under section 11-A reduced the punishment imposed upon the workman as it did not find the same to be commensurate with the misconduct proved against the workman. He submits that the documents pertaining to the past service record were not on record before the Labour Court and it was only the written statement which mentioned the earlier instances for which the workman had been either warned or suspended from work. He further submits that after being suspended from work on 4.3.1979 i.e. after the first misconduct, the appellants had condoned the misconduct as the workman was made permanent in 1981 and, therefore, this punishment could not be considered while assessing the past service record of the workman. He further submits that since the documents were not placed on record by the appellants, the Labour Court could not be faulted for not making a mention of the earlier service record of the workman. The past service record although not made available to the Labour Court is now placed on record before us. The workman in fact has at one stage admitted in his evidence that he had been issued certain warnings, etc. by the appellants. We have considered the same and we are also of the opinion that the past service record of the workman is not totally unblemished.
8. The Apex Court, in the case of Christian Medical College (supra), considered whether the provisions of the Industrial Disputes Act were applicable to a minority educational institution and while upholding the contentions of the employees in that case, the Apex Court held that the provisions of the Industrial Disputes Act were indeed applicable to the minority institutions. While so holding, the Apex Court observed that the Industrial Tribunal or the Labour Court is expected to interfere with the decision of the management under section 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court is expected to give reasons for its decision which is again subject to judicial review.
9. In the next judgment relied upon by the learned Counsel for the appellants in the case of U.P. State Road Transport Corporation (supra), the Apex Court was dealing with a case of a bus driver in the appellant-Corporation who was dismissed from service for three acts of misconduct, namely, habitual absence from work, driving away the bus unauthorisedly from the workshop to some other place without taking along the conductor of the bus and abusing and threatening in drunken state an assistant cashier. The Corporation had dismissed the driver. The Labour Court in exercise of its powers under section 11-A of the Industrial Disputes Act held that the punishment of removal was excessive and, therefore, substituted it by the punishment of stoppage of one wage increment and payment of 50% of the backwages. The High Court had summarily dismissed the writ petition impugning the award. The Apex Court in the facts and circumstances of that case held that the Labour Court was not justified in interfering with the order of removal and felt that exercise of discretion by the Labour Court was arbitrary and unjustified as the punishment of dismissal imposed on the driver could not be considered to be shockingly disproportionate. In this decision of the Apex Court we have noted that the driver was charged with three serious acts of misconduct as mentioned earlier and two of which were found to be established against the driver.
10. In Devendra Swamys case (supra), the Apex Court dealt with the appellant who had committed defalcations and failed to issue tickets to passengers after collecting fares from them. The workman had committed similar acts of misconduct on 41 previous occasions. The Labour Court in that case directed the workman to be reinstated with backwages and consequential reliefs while withholding two increments with cumulative effect. The learned Single Judge of the High Court confirmed the order of the Labour Court. In Appeal, the Division Bench set aside the order of the learned Single Judge as also the award of the Labour Court and the punishment of dismissal was restored. The workman aggrieved by this order of the High Court, approached the Apex Court by way of a Special Leave Petition. The Apex Court while confirming the order of the Division Bench of the High Court opined that the Labour Court had interfered with the punishment of dismissal by ignoring the material regarding the previous acts of misconduct and punishments imposed on the workman. The Apex Court was of the view that seen in the light of previous service record which contained 41 similar misconducts, the punishment of dismissal awarded by the disciplinary authority was fully justified.
11. In the light of the observations of the Apex Court in the above referred judgments, what can be inferred is that the power vested in the Labour Court under section 11-A must be exercised by the Labour Court or Tribunal as the case may be only when it is satisfied that the order of discharge or dismissal was not justified either because the punishment of dismissal is harsh or shockingly disproportionate to the misconduct proved against the workman or because the punishment of dismissal is not commensurate with the misconduct proved against him or because there are extenuating circumstances like a clear and unblemished service record. The Labour Court may set aside the dismissal and award appropriate relief to the workman including that of a lesser punishment in lieu of dismissal or discharge as the circumstances of the case may require.
12. The learned Counsel for the Appellants also laid emphasis on the judgment of the Division Bench of this Court in the case of Sarabhai Chemicals (supra) to substantiate his contention that a solitary act of misconduct could also warrant the punishment of dismissal. The Court took the view that it was not necessary that the dismissal must be preceded by a series of acts of disobedience or indiscipline before a workman can be dismissed. We have, however, to note that in this case, the workman was employed hardly for a period of three years when his services were terminated.
13. In USV Ltd. (supra), the learned Single Judge of this Court considered the case of Christian Medical College (supra) and other judgments of the Apex Court and held that the Labour Court or Industrial Tribunal is expected to interfere with the decision of the management under section 11-A when it is satisfied that the punishment imposed was highly disproportionate to the degree of guilt of the workman concerned. In that case, the misconduct proved against the workman was of gheraoing the officers, abusing and threatening them. The learned Judge set aside the award of the Labour Court and rejected the reference. The facts in that case were gross inasmuch as three officers of the company were prevented by the workman concerned from partaking of food, water, tea, etc. for a period of 3-4 hours and they had also threatened the officers from going out of their cabins. They had also instigated and abetted a strike by remaining away from their places of work. The workman concerned had also gheraoed the officers and tortured and humiliated them by shouting and using filthy, abusive language. It was obviously, having regard to the grievous acts of misconduct, that the Court came to the conclusion that the action of dismissal against the workman was justified.
14. The learned Counsel on behalf of the appellants has also laid emphasis on the judgments of our Court in the case of Breach Candy Hospital (supra) wherein a workman had been dismissed for misconduct involving assault on a co-workman within the precincts of the hospital. The learned Single Judge of this Court has observed that the question whether the punishment imposed is justified is dependant on the facts and circumstances of each case and since the misconduct was a serious one involving assault on the precincts of the hospital, the award of reinstatement was set aside.
15. On the other hand, the Apex Court in the case of Ramakant Mishra v/s. State of U.P. considered the case of the workman who after having an unblemished service record of 14 years, used indiscreet, improper and abusive language on one occasion against an officer. The employer imposed the extreme punishment of dismissal after an enquiry was held against the workman. The Labour Court by its award upheld the termination of service. A petition impugning the award in the High Court failed and, therefore, an appeal by way of special leave was filed by the workman. The Apex Court observed thus:
".... In the development of industrial relation norms we have moved far from the days when quantum of punishment was considered a managerial function with the Courts having no power to substitute their own decision in place of that of the management. More often Courts found that while the misconduct is proved the punishment was disproportionately heavy. As the situation then stood, Courts remained powerless and had to be passive sufferers incapable to curing the injustice. Parliament stepped in and enacted Section 11A of the Industrial Disputes Act which reads as under:
"11A Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of the discharge or dismissal was not justified it may, by its award, set aside the order of discharge of dismissal and direct reinstatement of the workmen on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of the discharge or dismissal as the circumstances of the case may require."
It is now crystal clear that the Labour Court has the jurisdiction and power to substitute its measure of punishment in place of managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. And this Court is at present exercising jurisdiction under Article 136 over the decision of the Labour Court. Therefore, this Court can examine whether the Labour Court has properly approached the matter for exercising the discretion conferred by Section 11A, the Court has to be satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. These words indicate that even though misconduct is proved and a penalty has to be imposed, the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive. As stated earlier, it is a well recognised principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be commensurate with the gravity of the offence charged."
The Apex Court has further observed thus:
"The respondent Management has not shown that there was any blameworthy conduct of the appellant during the period of 14 years service he rendered prior to the date of misconduct and the misconduct consists of language indiscreet, improper or disclosing a threatening posture. When it is said that language discloses a threatening posture. When it is said that language discloses a threatening posture it is subjective conclusion of the person who hears the language because voice modulation of each person in the society differs and indiscreet, improper, abusive language may show lack of culture but merely the use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct cannot permit an extreme penalty of dismissal from service. Therefore, we are satisfied that the order of dismissal was not justified in the facts and circumstances of the case and the Court must interfere....."
The Apex Court granted the appellant reinstatement with full back wages while denying him two increments with future effect from the date of termination. This judgment has, however, not been referred to in any of the cases relied on by the learned Counsel for the Appellants.
16. In the case of Ved Prakash Gupta v. M/s.Delton Cable India (P) Ltd. , the Apex Court in a Bench of three Judges dealt with the case of a workman who was dismissed from service having been found guilty of charges of using derogatory, filthy and abusive language against the officers. The Apex Court observed that the charge levelled was not a serious one and the extreme penalty of dismissal should not have been imposed for such a charge. The Apex Court observed thus:
"... There is nothing on record to show that any previous adverse remark against the appellant had been taken into consideration by the management for awarding the extreme penalty of dismissal from service to the appellant even if he had in fact abused in filthy language (Durg Singh and S K Bagga). We are therefore of the opinion that the punishment awarded to the appellant is shockingly disproportionate regard being had to the charge framed against him. We are also of the opinion that no responsible employer would ever impose in like circumstances the punishment of dismissal to the employee and that victimization or unfair labour practice could well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of abuse of some worker or officer of the management by the appellant within the premises of the factory. We therefore hold that the termination of the appellants service is invalid and unsustainable in law, and that he is entitled to reinstatement with full backwages and other benefits including continuity of service...."
17. In a recent judgment in the case of Hindustan Motors Ltd. v/s. Tapan K. Bhattacharya & Anr. reported in 2002 II CLR 1062, the Apex Court observed thus:
"8. Under S. 11-A as amended in 1971, the Industrial Tribunal is statutorily mandated, while setting aside the order of discharge or dismissal and directing reinstatement of the workman to consider the terms and conditions, subject to which the relief should be granted or to give such other relief to the workman including the award of any other punishment in lieu of the discharge or dismissal, as the circumstances of the case may require. The section is couched in wide and comprehensive terms. It vests a wide discretion in the tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows that the tribunal is duty bound to consider whether in the circumstances of the case, backwages have to be awarded and if so, to what extent."
In this case, the Tribunal and a Division Bench of Calcutta High Court had set aside the order of dismissal passed by the employer and as a consequence thereof, had directed reinstatement. Full backwages were directed to be paid as a matter of course. The Apex Court held that it was necessary for the Labour Court to give reasons for awarding full backwages which the Labour Court had failed to do. Instead of remanding the matter, the Apex Court directed the employer to pay 50% of the backwages. After deducting the subsistence allowance paid during the pendency of the proceedings within three months failing which interest was required to be paid @ 9% per annum.
18. The powers vested in the Labour Court or Industrial Tribunal are not restricted and the Court is vested with the jurisdiction to alter the punishment imposed on a workman by the management, if in its opinion, the Court is of the view that the punishment is disproportionate with the misconduct proved against the workman. What was once largely in the realm of the satisfaction of the employer has ceased to be so after the introduction of Section 11A of the I.D. Act. Now, it is the satisfaction of the Tribunal that finally decides the matter.
19. In the case before us, the appellants have made the workman permanent in 1981 although he was suspended for one day in 1979. Obviously, therefore, much weightage is not expected to be given to the first entry in the past record as the appellants themselves had condoned the act of the workman. The second misconduct is that of refusal to do certain work in 1984 for which the workman had given an explanation about his being unwell and he was unable to do the heavy job on that particular day. Accepting the explanation, the appellants merely warned the workman and did not pay him wages for that shift. Thus, this second entry in the past service record was not and cannot be considered as a serious entry for future purposes. In 1989, a more serious charge was levelled against the workman of assault on a co-workman. An enquiry was held and the misconduct was established against the workman. However, although the appellants have annexed chargesheet in this regard, they have not thought it fit to place on record the explanation given by the workman. Be that as it may, this action of the workman entailed suspension from work for four days. On going through the record and considering the submissions made by the learned Counsel for the parties, we are of the view that, on this background, the dismissal for an incident of abusing in the year 1991 was an excessive punishment and not commensurate with the charge of misconduct levelled against the workman. It is true that the workman has been found guilty of the misconduct of using foul, intemperate and abusive language, but this would not in our opinion, be sufficient to warrant the punishment of dismissal. Even taking the past service record of the workman into consideration, we do not feel that the dismissal would be a proper punishment. The workman had been in service for fifteen years prior to his dismissal and this factor must also be borne in mind while imposing punishment. At the same time denial of only 1/3rd or even 50% of back wages will be too lenient an approach because we do not want any impression to be created that use of indecent langauge is condoned. At the same time the punishment must be commensurate to the misconduct. Since the misconduct has been proved and in view of the nature of the past service record, we are of the opinion that depriving the workman of 60% of his backwages would be a punishment commensurate with his past record and the misconduct proved against him. Dismissal from service will be too harsh considering the totality of his record, gravity of misconduct and fifteen years of service put in by him.
20. The appellants, therefore, shall reinstate the workman with continuity of service and 40% of his backwages. We are told that the workman was being paid subsistence allowance during the course of the proceedings in the Labour Court. The amount already paid to the workman as subsistence allowance on the basis of his last drawn salary shall, however, be deducted from the backwages payable to him. The appellants will reinstate the workman by 1st September 2002 and pay the amount due as above along with the salary of September 2002.
21. The Award of the Labour Court is thus modified to the above extent. Appeal against the order of the learned Single Judge is thus allowed accordingly. There will be no order as to costs.
22. Certified copy expedited.