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CASE NO.: Appeal (civil)  4399 of 2002

PETITIONER: Bharat Forge Co. Ltd.                                            

RESPONDENT: Uttam Manohar Nakate                                             

DATE OF JUDGMENT: 18/01/2005

BENCH: N.S. Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       The Respondent herein at all material times was working as a helper  in the services of the Appellant.   At or about 11.40 a.m., on  26.8.1983   while working in the first shift,  he was found lying fast asleep on an iron  plate at his working place, whereupon a disciplinary proceeding was  initiated against him in terms of  Standing Order 24(1)  of the Model  Standing Order framed under the Industrial Employment (Standing Orders)  Act, 1946.  In the said domestic enquiry he was found guilty whereupon by  order dated  17.1.1984 he was dismissed him from his services.  It is not in  dispute that on three earlier occasions also, the Respondent was found guilty  of misconduct; but only some minor punishments had been imposed.   Questioning the said order of dismissal dated 17.1.1984, the Respondent  herein filed a complaint of unfair labour practice  as specified under Item  1(a), (b), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of  Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for  short ’the Act) against the Appellant herein before the Labour Court, Pune.

In the said proceeding, two preliminary issues  were framed, namely,   (i) whether the enquiry was proper; and (ii) is the finding recorded by the  enquiry officer perverse.  The Labour Court by its order dated 21.5.1985  held that the domestic enquiry against the Respondent was fair and proper  and the finding recorded by the enquiry officer was not perverse.  He   thereafter proceeded with the case on merits and in terms of its order dated  31.7.1985, the Labour Court held that the punishment of dismissal imposed  upon the employee was harsh and disproportionate and no reasonable  employer could impose such punishment for the proved misconduct.   Consequently, the Appellant herein was directed to reinstate the Respondent  on his original post with  continuity of service with 50% of the back-wages  for the period from 23.12.1983 till his reinstatement.    

       Aggrieved by and dissatisfied therewith both the parties herein  preferred separate Revision Applications before the Industrial Tribunal.  By  a common judgment dated 12.6.1987, the Revision Application filed by the  Appellant was allowed and that of the Respondent was dismissed.  The  Respondent thereupon filed a Writ Petition before the Bombay High Court  and by reason of a judgment and order dated 9.2.1995, the said Writ Petition  was dismissed by a learned Single Judge.  A Letters Patent Appeal there- against was filed by the Respondent herein which by reason of the impugned  judgment was allowed directing :

"i)     the judgment of the learned Single Judge dated 9th  February 1995 and the order of the Industrial Court  dated 12th June 1987 are quashed and set aside.

ii)     The order passed by the second labour court dated  31st July 1985 is modified by directing the

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employer to pay a sum of Rs.2,50,000/- to the  employee within one month from today. In the  event of failure to pay the said amount to the  employee within one month from today, the  employer shall be liable to pay interest at the rate  of 9 per cent per annum from today till such  payment is made."

       The Appellant is in  Appeal before us questioning the aforementioned  judgment.   

Despite service of notice, nobody has appeared on behalf of the  Respondent.  

Mr. M.D. Adkar, learned counsel appearing on behalf of the  Appellant, assailing the judgment of the Division Bench of the High   Court,  brought to our notice that in the domestic enquiry the Respondent  herein took several adjournments and on the sixth day of hearing he went out  of the room stating that he would come back for filing a medical certificate  in support of his plea of adjourning the matter but  did not come back;  whereupon the domestic enquiry was held ex parte.  The learned counsel  would contend that the Respondent has accepted his misconduct and   furthermore materials have  been brought on records to prove that he had  committed misconduct earlier also and in that view of the matter, the  Division Bench of the High Court went wrong in passing  the impugned  judgment.  It was pointed out that as regard purported commission of unfair  labour practice, the concerned workman prevaricated his stand from court to  court inasmuch as whereas before the Industrial Court he invoked clause (g)  of Item (1) of Schedule IV of the Act; before the learned Single Judge, he  invoked clause (b) of Item (1) thereof  but the Division Bench of the High  Court proceeded to pass the impugned judgment by invoking clause (a),  although no foundational fact was pleaded in support thereof.  Reliance   placed by the High Court on Colour-Chem Ltd. vs. A.L. Alaspurkar and  Others  [(1998) 3 SCC 192], Mr. Adkar would urge,  was misplaced as the  said decision was rendered in the peculiar factual matrix obtaining therein.            The learned counsel placing reliance  on Messrs Bharat Iron Works  vs. Bhagubhai Balubhai Patel and Others  [(1976) 1 SCC 518] would submit  that in a  case of proved misconduct, the question of victimization does not  arise.  

       The said Act was enacted to provide for the recognition of trade  unions for facilitating collective bargaining for certain undertakings; to state  their rights and obligations; to confer certain powers on unrecognized  unions; to provide for declaring certain strikes and lock-outs as illegal strikes  and lock-outs; to define and provide for the prevention of certain unfair  labour practices; to constitute courts (as independent machinery) for carrying  out the purposes of according recognition to trade unions and  for enforcing  the provisions relating to unfair practices; and to provide for matters  connected with the purposes aforesaid.    Section 26 of the Act defines  ’unfair labour practices’ to mean any of the practices listed in Schedules II,  III and IV appended thereto.  Schedule IV of the Act specifies general unfair  labour practices on the part of the employers, the relevant clauses whereof  are as under :

"1.     To discharge or dismiss employee \026         (a) by way of victimization; (b) not in good faith,  but in colourable exercise of  employer’s right;

(g) for misconduct of a minor or technical  character, without having any regard to the nature  of the particular misconduct or the past record of

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service of the employee, so as to amount to a  shockingly disproportionate punishment;"

       Section 27 of the Act provides that, inter alia,  no employer shall  engage in any unfair labour practice.  Section 28 provides for dealing with  complaints relating to unfair labour practices.  The court upon receipt of a  complaint is invested with power  to cause an investigation to be made and  on submissions of report by the Investigation Officer and in the event no  settlement is arrived at during investigation, the court may proceed to  consider the complaint  and give its decision.  Section 59 of the Act bars  proceedings under the Bombay or Central Act.   

The jurisdiction of a Labour Court was, therefore, confined to make   an enquiry and pass an order thereupon as to whether the Appellant herein  had committed an act of unfair labour practice within the meaning of Section  26 read with the relevant provisions of  Item 1 of  Schedule IV of the Act.  

Before we proceed to determine the merit of the decision rendered by  the Division Bench, it is useful to notice that the act of misconduct  committed by the Respondent was admitted by him in terms of his letter  dated 26.8.1983 stating  :

"I, Uttam Manohar Nakate, No.3638, age 37, being  present give statement such as :-

I have been working with Bharat Forge Company  for 14 years. Earlier I used to work in Cranckshop for last  6 years.  I have been working in Production Development  Department.

From 28.8.1983 I have been working first shift and  I have been regular in first shift.  Today on 26.8.1983 I  came to work at 7:00 and as usual I was working.  At  about 11:15 to 11:30 I suffered stomach ache while  pushing trolly.  I told my partner Mr. A.G. Mistry that I  would take some rest and accordingly I slept on the iron  plate.  At about 11:40 security officer Shri Dashputre and  Shri Kelkar woke me up.  Our supervisor Mr. Narkar was  there.  I did not ask permission from Mr. Narkar.   Secondly our lunch interval was about to start and  therefore, I was to work in the lunch interval therefore, I  took rest before hand.

Only because I suffered ache I took rest.  Please  forgive for one time.

I read my statement and I state that it is correct."

It is also pertinent to note that the Enquiry Officer in his report   categorically stated as to how the Respondent had been conducting himself  during the domestic enquiry proceeding observing  :                      

"On 24.9.1983 Mr. Nakate sent an application  along with Private Doctor’s certificate submitting that he  was sick as well as he was mentally disturbed.  On this  application I wrote the next date of enquiry as 25.9.1983.   On 25.9.1983, Mr. Nakate was present and submitted that  he was not feeling well therefore he was unable to attend  the enquiry.  When I asked him he told me that he had  not come for attending the enquiry.  The certificate was  in his vehicle and he had come only for asking the

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adjournment.  Mr. Sagade submitted that though Mr.  Nakate is covered under ESI Scheme I have accepted the  Private Doctor’s certificate at Ex. 7.  Mr. Nakate should  have brought ESI Doctor’s certificate for his sickness.   The company does not accept the Private Doctor’s  certificate.  Considering the sequence of the incidence  Mr. Sagade further stated that Mr. Nakate was  deliberately advancing some or the other reasons to  dodge the enquiry.  He further stated that if Mr. Nakate  was not feeling well he could have sent ESI certificate  for his sickness on 24.9.1983 onwards.  However he has  done so.  I directed Mr. Nakate to go and get the  certificate which according to him was in his vehicle.   Accordingly Mr. Nakate went out of cabin.  After about  10-15 minutes he came back and submitted an  application at Ex. 8 stating that as he was mentally  disturbed and he was not feeling well the enquiry be  adjourned for 8 days.  I again and again questioned him  about the certificate for which he had gone. Mr. Nakate  did not give me any reply regarding the certificate.  He  was again and again saying only one thing that he should  be given time.  Because of this I came to the conclusion  that no certificate was kept in the vehicle of Mr. Nakate  and the reason mental disturbance advanced by Mr.  Nakate was only to avoid the enquiry. Therefore, I  rejected the application for the adjournment .  Therefore,   I asked Mr. Nakate about his representative.  Mr. Nakate  submitted that his representative was waiting at the Gate  No.1 of the Company.  I directed Mr. Sagade to send for  Mr. Salvi who was standing at the Gate No.1.  Mr.  Nakate in the meantime told me that the enquiry papers  are with Mr. Salvi.  Mr. Kelkar the Security Officer   submitted his report at Ex.9 that there is no person by  name Mr. Datta Salvi at gate No.1.  I once again asked  Mr. Nakate about his representative and instead of reply  he started saying that he had severe stomach-ache and  stated that he was not willing to say anything and asked  for adjournment.  I rejected this request also as since  beginning of enquiry on 25.9.1983 Mr. Nakate was  deliberately advancing one after another false reasons to  get the adjournment.  I specifically told Mr. Nakate that  the enquiry would be conducted ex parte if he does not  participate.  Mr. Nakate left the place of enquiry without  saying anything.  I therefore decided to conduct the  enquiry ex parte and directed Mr. Sagade to adduce the  evidence on behalf of the company."

The Labour Court, as noticed hereinbefore, in its order dated  21.5.1985 held that the enquiry was proper and the finding of the Enquiry  Officer was not perverse.  The learned Labour Court, however, in its order  dated 31.7.1985 passed an order of reinstatement with 50% back-wages  holding :

"\005Obviously, this lapse on his part does not show  that at any point of time he indulged in gross misconduct  which affected adversely to the interest of the respondent  company.  In the case at hand, the charges regarding  sleeping during duty hours, no doubt, appear to be grave  and serious  nature and such sort of tendencies cannot be  appreciated and they deserve to be curbed with heavy  hands.  If such misconducts are viewed with leniency, it  will have adverse effect on the peace and tranquility of

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the peaceful functioning of the company, but, in the  instant case, we cannot adopt this harsh view.  It is  because the length of service of the complainant is of  longer period of 10 years and for one lapse of this nature  it is not proper to sack him from the services.  I think,  therefore, by imposing lesser punishment it would be  better if one more chance is given to him to serve the  respondent company.  Viewed from this angle, I think,  the punishment of removal imposed upon him by the  respondent is absolutely harsh and disproportionate and  no any reasonable employer would impose such  punishment in such circumstances."

No sufficient or cogent reason, in our opinion,  was assigned by the  learned Labour Court  as to why a lenient view should be taken.  The  Revisional Court  while allowing the Revision Application of the Appellant  and dismissing the Revision Application of the Respondent came to the  conclusion that as the misconduct has been proved and relying on the  decision of this Court  in Bhagubhai Balubhai Patel (supra) where it was  opined that a proved misconduct is anti thesis of victimization in the  industrial relations; held :

"\005Therefore, in granting the relief of reduction of the  nature  of punishment, the learned judge of the Labour  Court exceeded his jurisdiction and committed an error,  apparent on the face  of the record..  In any event, since  the learned Labour Judge has found that the misconduct  of sleeping during duty hours, was grave and serious, and  such tendencies deserved to be curbed with heavy hands  and since he had accepted the position of the past record  of the Respondent, the length of ten years of his service,  hardly constituted any mitigating circumstances.  In fact,  the Respondent had been given sufficient opportunity to  improve himself.  In these circumstances, the learned  Labour Judge was wholly unjustified in interfering with  the punishment.  It is material to note that he has no  where found that the punishment was shockingly  disproportionate."

       The said order of the Revisional Authority was upheld by the learned  Single Judge of the High Court stating :

"\005That sleeping in duty is a serious misconduct, which  ought not to be overlooked and showing leniency in such  a matter was likely to have a deleterious effect on  discipline in the factory, are findings which the Labour  Court has itself arrived at.  As to quantum of punishment,  the First Respondent-employer was required to consider  the past record and other attendant circumstances.  The  past record had two aspects, its length of 10 years and it  is being dotted with previous actions for misconduct. To  over emphasis the length of the service to the detriment  of previous disciplinary action, is discounting quality as  against quantity."

       The Division Bench of the High Court also found commission of  major misconduct on the part of the Respondent but proceeded to examine  the question as to whether despite such proved misconduct the punishment  awarded by the employer on him was  grossly disproportionate and would   be an unfair labour practice being an instance of  legal victimization under  clause (1) of Item 1 of Schedule IV of the Act.  Relying on or on the basis of  

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Colour-Chem Ltd. (supra), the Division Bench held :

"\005The question that arises for our consideration is  whether looking to the nature of the proved charge that  the employee was found sleeping during duty hours and  was awakened by the security officer, can it be said that  the punishment of dismissal is shockingly or grossly  disproportionate.  If the answer is in affirmative  obviously, such punishment could be treated as legal  victimization and employer would be guilty of having  engaged in an unfair labour practice under clause (a) of  Item 1 of Schedule IV\005"  

       Upon taking into consideration the gravity of past misconduct, it was  observed :

"\005We find that looking to the nature of the charge, i.e.  the employee was found sleeping during duty hours, the  employee could not have been inflicted with the  punishment of dismissal.  The past record which has been  referred to hereinabove and the misconduct proved did  not justify the punishment of dismissal  as no reasonable  employer would ever impose the punishment of dismissal  in such circumstances\005"

       The Division Bench,  however,  in stead and  place of passing an order  of reinstatement upon taking into consideration the fact that he was out of  the job for about 15 years and hardly 5-6 years’ job is left, directed payment  of a sum of Rs.2,50,000/- to the Respondent.   

       Colour-Chem Ltd.  (supra) whereupon strong reliance has been placed  by the Division Bench of the High Court is an authority for the proposition  that Clause (g) of Item 1 of Schedule IV of the Act is relatable to a minor or  technical misconduct which in a given set of cases may amount to resulting  in a shockingly disproportionate punishment if they are followed by  discharge or dismissal of the delinquent.  This Court therein, however,  referring  to  dictionary meaning observed that the term "victimization" is of  comprehensive import.  It may be victimization in fact or in law.  As regard  factual victimization it was observed that it may consist of diverse acts of  employers who are out to drive out and punish an employee for no real  reason and for extraneous reasons.  It further proceeded to observed :

"\005There can be in addition legal victimization and it is  this type of victimization which is contemplated by the  decision of this Court in Hind Construction (1965) 2 SCR  85.  It must, therefore, be held that if the punishment of  dismissal or discharge is found shockingly  disproportionate by the Court regard being had to be the  particular major misconduct and the past service record  of the delinquent or is such as no reasonable employer  could every impose  in like circumstances, it would be  unfair labour practice by itself being an instance of  victimization, in law or legal victimization independent  of factual victimization, if any.  Such an unfair labour  practice is covered by the present Act by enactment of  clause (a) of Item 1 of Schedule IV of the Act as it would  be an act of victimization in law as clearly ruled by this  Court in the aforesaid decision\005"

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       In that case the Respondents therein were punished although  ten other  mazdoors who were also found to be sleeping were let off.  This Court  noticed that the Respondents therein were although assigned more  responsible duties as compared to the mazdoors but in the background of the  surrounding circumstances and especially in the light of their past service  record  there was no escape from the conclusion that the punishment of  dismissal imposed on them for such misconduct was grossly and shockingly  disproportionate.

       Cholour-Chem Ltd. (supra) was, thus,  rendered in the fact situation  obtaining therein.  It is not an authority for the proposition that in a case  where an employee is found to be sleeping during working hours, imposition  of punishment of dismissal, despite his past bad records must be held to be  disproportionate to the act of misconduct.    

In the instant case although victimization has been taken to be a  ground of complaint, no factual foundation therefor was laid and  it was  confined to quoting only the legal provisions. No plea of  legal victimization  was also taken in the complaint petition.   

A bench of this Court in U.P. State Road Transport Corporation vs.  Mohan Lal Gupta and Others [(2000) 9 SCC 521], opined :

       "The learned advocate appearing in support of the  appeal mainly contended on two counts.  On the first, it  has been very strenuously   contended as to whether the  Labour Court can alter the punishment awarded to  Respondent 1 workman upon recording a finding that the  charges have duly been proved and secondly, it has been  contended as to whether the employee who has  admittedly misappropriated the property of the employer  Corporation can be allowed to be retained in service.

       These two issues are undoubtedly of some  importance.  The workman concerned during the course  of inquiry in no uncertain terms admitted his guilt though  however he has stated that the same amounted to mere  negligence and not a deliberate act.  But the Labour  Court being the fact finding court came to the conclusion  that the charges stood proved and we are not in a position  to reassess the factual situation at this stage of the  proceedings under Article 136 of the Constitution.  The  finding as regards the proof of charges shall have to be  taken as accepted and we do not see any perversity  therein having regard to the state of facts more so by  reason of acceptance of charge by the delinquent  employee."    

       Yet again in  U.P. State Road Transport Corpn. Vs. Subhash Chandra  Sharma and Others [(2000) 3 SCC 324], upon noticing Colour-Chem Ltd.  (supra), this Court observed :

"The charge against the respondent  was that he, in  a drunken state, along with the conductor went to the  Assistant Cashier in the cash room of the appellant and  demanded money from the Assistant Cashier.  When the  Assistant Cashier refused, the respondent abused him and  threatened to assault him.  It was certainly a serious  charge of misconduct against the respondent.  In such  circumstances, the Labour Court was not justified in  interfering  with the order of removal of the respondent  from the service when the charge against him stood  proved.  Rather we find that the discretion exercised by  the Labour Court in the circumstances of the present case

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was capricious and arbitrary and certainly not justified.   It could not be said that the punishment awarded to the  respondent was in any way "shockingly  disproportionate" to the nature of the charge found  proved against him.  In our opinion, the High Court  failed to exercise its jurisdiction under Article 226 of the  Constitution and did not correct the erroneous order of  the Labour Court which, if allowed to stand, would  certainly result in  a miscarriage of justice."   

       Each case, therefore, has to be decided on its own facts.

       We have noticed hereinbefore that all the courts have answered the  question as regard commission of misconduct by the Respondent in one  voice.  The Labour Court evidently had taken recourse to Clause (g) of Item  1 of Schedule IV of the Act which ex facie was inapplicable.  The said  provision clearly postulates two situations, namely, (i)  the misconduct  should be of  minor or technical character; and (ii) the punishment is a  shockingly disproportionate  without having any regard to the nature of the  particular misconduct or the past record of service of the employee.  The  past record of service, therefore, is a relevant factor for considering as to  whether the punishment imposed upon the delinquent employee is  shockingly disproportionate or not.  As has been noticed hereinbefore,   before the learned  Single Judge an attempt on the part of the Respondent to  take recourse  to Clause (b) of Item (1) of Schedule IV  failed.  In absence of  any plea of  factual victimization and furthermore in absence of any  foundational fact having been laid down for arriving at a conclusion of the  legal victimization, in our opinion, the Division Bench committed a manifest  error in invoking Clause (a) thereof.  

The Division Bench, thus, was not correct in relying on Colour-Chem  Ltd. (supra) and failed to notice the distinguishing features thereof.  A  decision, as is well-known, is an authority of what it decides and not what  can logically be deduced therefrom. [See Cement Corporation of India Ltd.  vs. Purya and Others [(2004) 8 SCC 270]

       In Bhagubhai Balubhai Patel (supra), this Court observed :

"\005In such a case  the employee, found guilty, cannot be  equated with a victim or a scapegoat and the plea of  victimization as a defence will fall flat.  This is why  once, in the opinion of the tribunal a gross misconduct is  established, as required, on legal evidence either in a  fairly conducted domestic enquiry or before the tribunal  on merits, the plea of victimization will not carry the case   of the employee any further.  A proved misconduct is  antithesis of victimization as understood in industrial  relations.  This is not to say that the tribunal has no  jurisdiction to interfere with an order of dismissal on  proof of victimization."

       It was, therefore, obligatory on the part of the Respondent to plead  and prove the acts of victimization. He failed to do so.  

       Furthermore, it is trite,  the Labour Court or the Industrial Tribunal, as  the case may be, in terms of the provisions of the Act, must act within the  four-corner thereof.  The Industrial Courts would not sit in appeal over the  decision of the employer unless there exists a statutory provision in this  behalf.  Although its jurisdiction is wide but the same must be applied in  terms of the provisions of the statute and no other.

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       If the punishment is harsh, albeit a lesser punishment may be  imposed, but such an order cannot be passed on an irrational or extraneous  factor and certainly not on a compassionate ground.      

                        In Regional Manager, Rajasthan State Road Transport Corporation vs.  Sohan Lal [(2004) 8 SCC 218], it has been held that it is not the normal  jurisdiction of the superior courts to interfere  with the quantum of sentence  unless it is wholly disproportionate to the misconduct proved.  Such is not  the case herein.  In the facts and circumstances of the case and having regard  to the past conduct of the Respondent as also his conduct during the  domestic enquiry proceeding, we cannot say that the quantum of punishment  imposed upon the Respondent was wholly disproportionate to his act of  misconduct or otherwise arbitrary.   

       For the reasons aforementioned, the impugned judgment cannot be  sustained, which is set aside accordingly.  The Appeal is allowed.  However,  there shall be no order as to costs.