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CASE NO.: Appeal (civil)  881 of 2006

PETITIONER: L.K. Verma

RESPONDENT: H.M.T. Ltd. & Anr.

DATE OF JUDGMENT: 31/01/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Civil) No.22516 of  2004]

S.B. SINHA, J : .

       Leave granted.

       The Appellant was employed by the Respondent herein as a Safety  Officer.  On an allegation that he had committed acts of misconduct, he was  placed under suspension.  He preferred an appeal before the Labour  Commissioner in terms of Rule 14 of the U.P. Factories (Safety Officers)  Rules, 1984 (for short "the Rules").

       A writ petition was filed by him which was disposed of directing that  the appeal preferred by him against the order of suspension be disposed of  by the Labour Commissioner within the period specified therein.  On  completion of enquiry, a show cause notice was issued to him on 8.01.1998  as to why punishment of dismissal be not awarded.   

       In the meanwhile, the Labour Commissioner issued notice to the  Respondent directing it to appear on 2.4.1998.  A prayer for adjournment  made by the Respondent herein that the matter be posted after 15.4.1998 as  the officers were busy in relation to closing of financial year, was refused.   9.4.1998 was the date fixed for hearing of the parties  which was a holiday.   The memo of appeal was also not furnished to the Respondent.  In the  meanwhile, upon considering the show cause filed by the Appellant, herein,  he was dismissed from service by an order dated 21.02.1998.  The Labor  Commissioner by reason of an order dated 12th April, 1998 allowed the  appeal preferred by the Appellant, herein against the order of suspension  dated 20th May, 1996.  Being aggrieved by and dissatisfied therewith the  Respondent filed a writ petition before the Uttaranchal High Court which by  reason of the impugned judgment and order has been allowed.

       Mr. Ashok Desai, learned senior counsel appearing on behalf of the  Appellant raised the following contentions:

(i)     The action of the Respondent in initiating a departmental proceeding  against the Appellant was actuated by malice as a criminal case came  to be registered against the Management at his instance. (ii)    Suspension being one of punishments within the meaning of Rule 8 of  the Rules, the impugned order of dismissal could not have been  passed for commission of the same offence.  (iii)   In view of the alternative remedy available to the Respondent as they  could prefer an appeal against the order passed by the Labour  Commissioner in terms of sub-rule (3) of Rule 14 of the Rules, the  writ petition was not maintainable.

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(iv)    In any event, the quantum of punishment is wholly disproportionate to  the charges of misconduct.

       Mr. Sunil Gupta, learned senior counsel appearing on behalf of the  Respondent, on the other hand, would submit that: (i)     as the factum of misconduct was not questioned by the Respondent,  the order of punishment cannot be said to be illegal.    (ii)    whereas suspension by way of punishment is provided for in the  Rules, the conduct rules framed by the company provides for  suspension during pendency of a departmental proceeding and having  regard to the fact that the Appellant herein accepted the subsistence  allowance without any demur  whatsoever, he now cannot turn round  and contend that the order of suspension could have been passed only  in terms of the Rules.  

       The Appellant was appointed as a welfare officer.  The terms and  conditions of his services indisputably were governed by the Rules framed in  terms of Section 40 - B of the Factories Act, 1948.  Rules 4, 5 and 8 of the  Rules which are relevant for our purpose read as under:

"4.     Pay, allowances and other benefits \026 The scale of  pay, allowances and other benefits such as Leave,  Provident Fund, Bonus, Gratuity, Medical facilities,  Residence, etc., to be granted to the Safety Officer and  other conditions of their service shall be the same as  those of other officers of corresponding status in the  factory.

5.      Status \026 The Chief Safety Officer or the Safety  Officer in the case of factories where only one Safety  Officer is required to be appointed shall be given the  status of a departmental head or a senior executive in the  factory and he shall work directly under control of the  Chief Executive of the factory.  Every other Safety  Officer shall be given appropriate status corresponding  the status of an officer holding a position next below  other departmental heads in the factory;

8.      Punishment \026 The occupier of the factory may  impose upon any Safety Officer any one or more of the  following penalties, namely \026  (i)     suspension; (ii)    removal or dismissal from service; (iii)   reduction in rank; (iv)    withholding of increment (including stoppage of  an efficiency bar); (v)     censure; and (vi)    warning;

Provided that no order imposing any such penalty on a  Safety Officer shall be made except after an enquiry in  which he has been informed of charges against him and  given a reasonable opportunity of being heard in respect  of such charges and where it is proposed, after such  enquiry, to impose on him any such penalty until he has  been given a reasonable opportunity of making  representation against the penalty proposed, but only on  the basis of the evidence adduced or any other material  being used against him during such enquiry."

       It is also not in dispute that the Respondent, herein had framed HMT  Limited Conduct, Discipline & Appeal Rules which came into force on and   from 27.6.1988.  Rule 23 provides for discipline and appeal regulations and  disciplinary action procedure.  Regulation 23.1.6 reads, thus:

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"23.1 MISCONDUCT:         Without prejudice to the generality of the term  ’Misconduct’ the following acts of omission and  commission shall be treated as ’Misconduct’:

***                     ***                     *** 23.1.6          Drunkenness, riotous or disorderly or  indecent behaviour in the premises of the Company or  outside the premises, where there is a nexus between  employment and such commission and/ or where such  behaviour is likely to affect the image of the Company."

       Rule 23.3 provides for suspension pending enquiry.  Rule 23.3.2  provides that an employee under suspension shall be entitled to subsistence  allowance.

       Indisputably, the Appellant herein was chargesheeted on 20th May,  1996 on the following charges:

"1. You have file a writ petition No. 10684 of 1996 in the  Hon’ble High Court at Allahabad against Labour  Secretary, U.P., other Government Officials and HMT in  which you have filed an affidavit on oath on 28.02.1996  at 10.30 A.M. in front of Oath Commissioner, Allahabad  and on this date not only card is punched showing you to  be present in the factory but you have also marked  yourself present in the attendance register maintained by  you.

2.  On 18.05.1996 at about 4.00 P.M. when you were  questioned by MHR in presence of PMR regarding the  above, you got agitated during the prima-facie enquiry  and abused MHR in filthy language and said that all  these things were being done at the behest of Mr. Kaul,  GTM.  You also threatened MHR with dire  consequences.

3.  On perusal of your records, it also appears that you  pursued a full-time course in Post Diploma in Industrial  Safety in 1985-86 from Regional Labour Institute,  Kanpur and showed the same period in your experience  with Indian Telephone Industries Limited, Raebareli, at  the time of filling in your application from the  employment."

       In the departmental proceedings, the Appellant, herein did not deny or  dispute that he had used indecent language and also abused the officer.

       The contention of Mr. Desai that the disciplinary proceedings were  actuated by malice cannot be accepted for more than one reason.  As noticed  hereinbefore, the Appellant himself accepted that he was in tense mood  while attending the prima facie enquiry.  The Enquiry Officer while holding  the Appellant guilty of misconduct in respect of Charge No. 2 exonerated  him in respect of Charges No. 1 and 3.  Had the action of the Management  and the disciplinary authority were actuated by malice, the Appellant would  not have been exonerated on two very serious charges.  Furthermore, when a  charge has been proved, the question of exonerating the Appellant on the  ground of purported malice on the part of the Management does not arise.   Evidently, the disciplinary authority was not biased against the Appellant  nor any malice has been attributed to him.  The contention is rejected.  

It is true that in terms of sub-rule (3) of Rule 14 of the Rules an appeal  was maintainable before the State Government.  But it is well settled,  availability of an alternative forum for redressal of grievances itself may not  be sufficient to come to a conclusion that the power of judicial review vested

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in the High Court is not to be exercised.            The Respondents herein filed the writ petition inter alia on the ground  that the Labour Commissioner did not give enough opportunity to them to  place their case.  From the order dated 12th April, 1998 passed by the Labour  Commissioner, it appears, he allowed the appeal preferred by the Appellant,  herein inter alia on the ground :

(i)     "\005Dismissal from service during the pendency of  Appeal against suspension of the petitioner/ appellant is  against the set rulings & norms, which indicates the  malafide intention of the management against petitioner/  appellant\005

(ii)    "\005Vide letter dated 29.10.1997 of the General  Technical Manager of the factory informed the petitioner/  appellant that all the charges against him found proved,  but no further disciplinary action will be taken during the  pendency of writ petition against suspension in the  Hon’ble High Court but vide letter 08.01.1998, the  Director Personal and occupier Sh. R.A Sharma informed  the petitioner/ appellant about proving only one charge &  seeking defence/ clarification about so-called "show  cause notice" and vide letter 21.02.1998, dismissing the  service of the petitioner/ appellant due to unsatisfactory  defence, found against each others verdict and malafidely  included\005"

(iii)   "\005No evidence has been produced against  petitioner/ appellant against the charge for which he has  been dismissed from services.  The management of the  factory has suspended the petitioner/ appellant and  thereafter dismissed from services in violation of the  provisions of the Factories Act, 1948 and the UP  Factories (Safety Officer) Rules 1984 framed thereunder.   Therefore, both the acts of the management of suspension  and dismissal found against the rules and also against the  evidences produced\005"

       The Labour Commissioner, in our considered opinion, misdirected  himself in passing the said order.  Whereas, on the one hand, he noticed that  the Appellant, herein had stated that during the preliminary enquiry he made  those utterances owing to tension in his mind, he opined that no evidence  had been produced against him for which he has been dismissed from  service.  It is now well-settled that things admitted need not be proved. [See  Vice-Chairman, Kendriya Vidyalaya Sangathan and Another v. Girdharilal  Yadav, (2004) 6 SCC 325]   

       Once the Appellant accepted that he made utterances which  admittedly lack civility and he also threatened a superior officer, it was for  him to show that he later on felt remorse therefor.  If he was under tension,  he, at a later stage, could have at least tendered an  apology.  He did not do  so.  Furthermore, before the Enquiry Officer, the witnesses were examined  for proving the said charges.  The officer concerned, namely, Shri Sinha had  also submitted a report mentioning the incident of misbehaviour of the  Appellant on 18.5.1996.  The Enquiry Officer came to the conclusion that  both the Management and the witnesses corroborated each other’s  statements and although they had been cross-examined thoroughly, no  contradiction was found in their statements in regard to the said charge.

       Suspension is of three kinds.  An order of suspension may be passed  by way of punishment in terms of the conduct rules.  An order of suspension  can also be passed by the employer in exercise of its inherent power in the  sense that he may not take any work from the delinquent officer but in that

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event, the entire salary is required to be paid.  An order of suspension can  also be passed, if such a provision  exist in the rule laying down that in place  of the full salary, the delinquent officer shall be paid only the subsistence  allowance specified therein.   

       The Appellant herein admittedly obtained the subsistence allowance  offered to him without any demur whatsoever.  The order of suspension was  not passed as a measure of penalty within the meaning of the Rules.  Rightly  or wrongly, the Respondent invoked Rule 23.3 of HMT Limited Conduct,  Discipline & Appeal Rules.  The Appellant did not raise any question about  the applicability of the said rule, although such a contention could have been  raised.

       In view of the fact that the order of suspension was not passed in  terms of Rule 8 of the Rules, the findings of the Commissioner that the said  rule will be applicable must be held to be incorrect.

       The High Court in exercise of its jurisdiction under Article 226 of the  Constitution, in a given case although may not entertain a writ petition inter  alia on the ground of availability of an alternative remedy, but the said rule  cannot be said to be of universal application.  Despite existence of an  alternative remedy, a writ court may exercise its discretionary jurisdiction of  judicial review inter alia in cases where the court or the tribunal lacks  inherent jurisdiction or for enforcement of a fundamental right or if there has  been a violation of a principle of natural justice or where vires of the act is in  question.  In the aforementioned circumstances, the alternative remedy has  been held not to operate as a bar. [See Whirlpool Corporation v. Registrar of  Trade Marks, Mumbai and Others , (1998) 1 SCC 1, Sanjana M. Wig (Ms.)  v. Hindustan Petroleum Corpn. Ltd., (2005) 8 SCC 242, State of H.P. and  Others v. Gujarat Ambuja Cement Ltd. and Another (2005) 6 SCC 499].

       In any event, once a writ petition has been entertained and determined  on merit of the matter, the appellate court, except in rare cases, would not  interfere therewith only on the ground  of existence of alternative remedy.   [See Kanak (Smt.) and Another v. U.P. Avas Evam Vikas Parishad and  Others, (2003) 7 SCC 693].  We, therefore, do not see any justification to  hold that the High Court wrongly entertained the writ petition filed by the  Respondent.

       So far as the contention as regard quantum of punishment is  concerned, suffice it to say that verbal abuse has been held to be sufficient  for inflicting a punishment of dismissal.   

       Mahindra and Mahindra Ltd. v. N.N. Narawade etc. [JT 2005 (2) SC  583 : (2005) 3  SCC 134] is a case wherein the misconduct against the  delinquent was ’verbal abuse’.   This Court held :

"It is no doubt true that after introduction of  Section 11-A in the Industrial Disputes Act, certain  amount of discretion is vested with the Labour  Court/Industrial Tribunal in interfering with the quantum  of punishment awarded by the management where the  workman concerned is found guilty of misconduct. The  said area of discretion has been very well defined by the  various judgments of this Court referred to hereinabove  and it is certainly not unlimited as has been observed by  the Division Bench of the High Court. The discretion  which can be exercised under Section 11-A is available  only on the existence of certain factors like punishment  being disproportionate to the gravity of misconduct so as  to disturb the conscience of the court, or the existence of  any mitigating circumstances which require the reduction  of the sentence, or the past conduct of the workman  which may persuade the Labour Court to reduce the  punishment. In the absence of any such factor existing,

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the Labour Court cannot by way of sympathy alone  exercise the power under Section 11-A of the Act and  reduce the punishment. As noticed hereinabove at least in  two of the cases cited before us i.e. Orissa Cement Ltd.  and New Shorrock Mills this Court held: "Punishment of  dismissal for using of abusive language cannot be held to  be disproportionate." In this case all the forums below  have held that the language used by the workman was  filthy. We too are of the opinion that the language used  by the workman is such that it cannot be tolerated by any  civilised society. Use of such abusive language against a  superior officer, that too not once but twice, in the  presence of his subordinates cannot be termed to be an  indiscipline calling for lesser punishment in the absence  of any extenuating factor referred to hereinabove."

       In Muriadih Colliery v. Bihar Colliery Kamgar Union  [(2005) 3 SCC  331], this Court, inter alia, following Mahindra and Mahindra (supra)  held :

"It is well-established principle in law that in a given  circumstance it is open to the Industrial Tribunal acting  under Section 11-A of the Industrial Disputes Act, 1947  has the jurisdiction to interfere with the punishment  awarded in the domestic inquiry for good and valid  reasons. If the Tribunal decides to interfere with such  punishment it should bear in mind the principle of  proportionality between the gravity of the offence and the  stringency of the punishment. In the instant case it is the  finding of the Tribunal which is not disturbed by the writ  courts that the two workmen involved in this appeal  along with the others formed themselves into an unlawful  assembly, armed with deadly weapons, went to the office  of the General Manager and assaulted him and his  colleagues causing them injuries. The injuries suffered by  the General Manager were caused by lathi on the head.  The fact that the victim did not die is not a mitigating  circumstance to reduce the sentence of dismissal."             These questions recently came up for consideration in Hombe Gowda  Edn. Trust & Anr. v. State of Karnataka & Ors. [2005 (10) SCALE 307],  upon considering a large number of cases, this Court held: "Indiscipline in an educational institution should not be  tolerated.  Only because the Principal of the Institution  had not been proceeded against, the same by itself cannot  be a ground for not exercising the discretionary  jurisdiction by us.  It may or may not be that the  Management was selectively vindictive but no  Management can ignore a serious lapse on the part of a  teacher whose conduct should be an example to the  pupils.    This Court has come a long way from its earlier view  points.  The recent trend in the decisions of this Court  seek to strike a balance between the earlier approach of  the industrial relation wherein only the interest of the  workmen was sought to be protected with the avowed  object of fast industrial growth of the country.  In several  decisions of this Court it has been noticed that how  discipline at the workplaces/ industrial undertaking  received a set back.  In view of the change in economic  policy of the country, it may not now be proper to allow  the employees to break the discipline with impunity.  Our  country is governed by rule of law.  All actions,  therefore, must be taken in accordance with law.  Law  declared by this Court in terms of Article 141 of the

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Constitution of India, as noticed in the decisions noticed  supra, categorically demonstrates that the Tribunal would  not normally interfere with the quantum of punishment  imposed by the employers unless an appropriate  case is  made out therefor.  The Tribunal being  inferior to that of  this court was bound to follow the decisions of this Court  which are applicable to the fact of the present case in  question.  The Tribunal can neither ignore the ratio laid  down by this Court nor refuse to follow the same."

[See also State of Rajasthan & Anr. v. Mohammed Ayub Naz \026 2006 (1)  SCALE 79).    

       For the reasons aforementioned, we are of the opinion that no case is   made out for interfering with the impugned judgment.  The appeal, thus,  fails and is dismissed.  No costs.