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CASE NO.: Appeal (civil)  3439 of 2003

PETITIONER: Employers,Mgmt., M. Colliery M/s BCCL Ltd.                                           

RESPONDENT: Bihar Colliery Kamgar Union Through: Workmen                               

DATE OF JUDGMENT: 22/02/2005

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

JUDGMENT: J U D G M E N T WITH

C.A. NO.  1347 OF 2005 (arising out of SLP (C) No. 1195 of 2004)

SANTOSH HEGDE, J.

       The Management of Muriadih colliery of M/s BCC Ltd.   is in appeal against the award made by the Central Industrial  Tribunal (No.2), Dhanbad  dated 11th of October, 1991 in an  industrial dispute referred to it under Section 10 of the  Industrial Disputes Act, 1947.         By the said award the Tribunal upholding the misconduct  of the two workmen set aside the punishment of dismissal  and  directed reinstatement of the said workmen without payment of  back wages and with permanent stoppage of one increment.   The Tribunal also directed the workmen to give the continuity  of their service.          The writ petition filed by the Management as against the  said reduction in sentence before the learned Single Judge and  an appeal before the Division Bench of the Patna High Court  having been dismissed, the Management appellant is in appeal  before us.  The brief facts necessary for the disposal of this appeal  are as follows:          The two workmen were working as Pump Operator and  Trammer respectively under the management of  Muriadih  colliery of M/s BCC Ltd. .  On 11.5.1983 at about 11.15 a.m.  a  mob consisting of about 200 persons variously armed with  deadly weapons like lathi, Bhalla, bow and arrow came to the  office premises of General Manager, Barora area and amongst  them the two respondent workmen attacked Shri H.N. Tripathi,  the General Manager of the area with a lathi on his head  as a  result of which he sustained bleeding injury and he had to be  admitted to a hospital.   These workmen with the rest of the  mob further assaulted other officers of Barora area including  one Shri K.K. Khadia, Area Manager, Personnel, Shri K.  Bhardwaj, Inspector CISF, Sher Singh, Havaldar  and Bhim  Singh.  The motive for the said attack is stated to be an accident  that occurred previously in regard to bursting of a water tank  causing death of two persons.  A show cause notice was issued to these workmen to  reply and the explanation submitted by the workers was not  found satisfactory.  In the domestic inquiry that was conducted  the respondent workmen were found guilty of misconduct  charged against them and on the recommendation of the Inquiry  Officer the services of the concerned workmen were terminated  w.e.f. 14.11.1984.  

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The said order of dismissal after inquiry gave rise to an  industrial dispute as stated above. In the industrial dispute the  workmen challenged the fairness and validity of the domestic  inquiry. The Tribunal having come to the conclusion that the  inquiry conducted was not fair, gave opportunity to lead  evidence to the parties and after considering the material  produced in the said inquiry came to the conclusion that the  alleged incident of assault by the  workers was proved and the  two workmen concerned found guilty of the misconduct alleged  against them.          Having taken into consideration the gravity of the  offence of physical assault on the Managing Staff of the colliery  with deadly weapons and causing injuries to them and having   come to the conclusion that the Management  has been able to  prove most of the charge leveled against the workmen, the  Tribunal proceeded to interfere with the punishment of  dismissal observing thus:- "I am to hold further that the concerned  workmen were members of the mob and they also  caused injury to Shri Tripathy and others.  But  definitely they had never intended to kill Shri  Tripathy as held above.  Since there was casually  on account of bursting of water tank it was natural  for the workmen in general to go in agitation  against the management and at that time the mob is  mostly guided by their own emotions and feelings.   In the circumstances of the case I am of the view  that the punishment of dismissal will be harsh  punishment which definitely amount to hanging of  an accused after criminal trial.  For causing simple  hurt even to the high officials like the General  Manager the workmen should not be dismissed  rather some alternative punishment like stoppage  of increment which is also one of the major  penalty should be inflicted.  I also find that there is  no previous history of any such act on the part of  the concerned workmen.  In the circumstances, I  feel that the needs of justice can be met by  reinstating the concerned workmen in their service  without payment of back wages and with  permanent stoppage of one increment.  However,  they will get continuity of their service."

As stated above being aggrieved by the interference with  the punishment  awarded by the Management after coming to  the conclusion  that the misconduct alleged is established, the  appellant preferred writ petition before the Ranchi Bench of the  Patna High Court.  The learned Single Judge of the Patna High  Court dismissed the said writ petition agreeing with the finding  of the Tribunal observing thus:- "Certainly the assault to the senior officials  that too in the rank of General Manager by the  workmen in discharge of their duties is a gross  misconduct and in such a situation officials who  are managing the affairs are being demoralised.   But in the instant case the Tribunal has recorded a  finding that there was a mitigating circumstance  and the action of the two workmen were neither  deliberate or intentional but it was in a sudden spur  of the moment overwhelmed by the mob mentality  the workmen assaulted these senior officials only  for the reason that on the same day there was a  bursting of a tank in which some workmen died in  the accident which created an impression to the  fellow workers that due to negligence on the part

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of the Management, such accident took place.  So  far the aforesaid reason alone, this occurrence took  place and it is not a case of personal vendetta or a  gross act of in discipline or insubordination.  In  that view of the matter, the Tribunal was perfectly  justified in modifying the extreme punishment of  dismissal and both the workmen though definitely  guilty, were also awarded sufficient punishment as  no back wages were awarded also an increment  was withheld.  In that view of the matter and in  such mitigating circumstance, I am not inclined to  interfere with the order of the Tribunal.   Accordingly this Writ application is dismissed, but  without costs."(Emphasis supplied)

       The appeal filed against the said order before the  Division Bench of the Jharkhand High Court also having failed  on the same ground as stated above,  the appellant is before us.    The only question for our consideration in this appeal is  whether the Tribunal was justified in interfering with the  quantum of punishment awarded by the Management after  coming to the conclusion that the finding of the domestic  inquiry was fair and legal or whether the so called mitigating  circumstances  recorded by the Tribunal would be a sufficient  ground to reinstate the concerned workmen.   Shri A. Sharan, Addl. Solicitor General  appearing for the  Management contended that  the accident on the previous day   had nothing to do with the General Manager and others  who  were assaulted and assault in question did not  take place  immediately after  that accident but was a premeditated attack  with deadly weapons causing grievous injuries (according to  the learned counsel).  The learned  Addl. Solicitor General   pointed out that the mitigating circumstances recorded by the  Tribunal that the workmen definitely did not have an intention  to kill Shri Tripathi is a frivolous excuse for reducing the  sentence. He further submitted that the nature and manner of   attack in the presence of the security forces itself showed that  the attack on the managerial staff of the appellant was  premeditated  and deliberate attack to undermine the discipline  in the organization.  Such indiscipline could not be exonerated   on the excuse of emotions and feelings of workmen.  The  learned Addl. Solicitor General also pointed out from the order  of the learned Single Judge that  he had recorded a finding that  the conduct of the workmen was ’a gross misconduct’ and  had  even recorded a finding that because of the attack, the officials  have been demoralised.  In such a fact situation  it is contended  that the reduction of  punishment of dismissal into stoppage of  one increment is perverse.           Unfortunately, none appeared for the workmen in this  case.          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  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

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not die is not a mitigating circumstance to reduce the sentence  of dismissal.  Considering the question of proportionality of  punishment this Court in the case  of Management of  Krishnakali Tea Estate Vs.  Akhil Bharatiya Chah Mazdoor  Sangh & Anr. [2004 (7) SCALE 608], a case involving  misconduct of lesser liability held: "This leaves us to consider whether the  punishment of dismissal awarded to the concerned  workmen de hors the allegation of extortion is  disproportionate to the misconduct  proved against  them.  From the evidence proved, we find the  concerned workmen entered the estate armed with  deadly weapons with a view to gherao the  Manager and others in that process they caused  damage  to the property of the estate and  wrongfully confined the Manager and others from  8.30 p.m. on 12th of October to 3 a.m. on the next  day.  These charges, in our opinion, are grave  enough to attract the punishment of dismissal even  without the aid of the allegation of extortion.  The  fact that the Management entered into settlement  with some of the workmen who were also found  guilty of the charge would not, in any manner,  reduce the gravity of the misconduct in regard to  the workmen concerned in this appeal because  these workmen did not agree with the settlement  which others are agreed instead chose to question  the punishment."

        Similarly in the case of  The Management of  Tournamulla Estate Vs. Workmen [(1973) 2 SCC 502], this  Court  while considering the denial of gratuity to a dismissed  workmen held:  "If a workman is guilty of a serious misconduct  such as acts of violence against the management or  disorderly behaviour in or near the place of  employment, which though not directly causing  damage, is conducive  to grave indiscipline, then  his gratuity can be forfeited in its entirety. "

       From the above it is clear that this Court has considered  an act of violence as an act of grave misconduct calling for  stringent punishment.  From the facts narrated herein above, the ratio laid down  in two cases referred to herein above amply applies to the  appeal in hand. The courts below by condoning an act of  physical violence have undermined the discipline in the  organisation, hence, in the above factual backdrop, it can never  be said that the Industrial Tribunal could have exercised its  authority under Section 11 (A) of the Act to interfere with the  punishment of dismissal. Substituting the order of dismissal in  such a case withholding of one increment in our opinion is  wholly disproportionate to the gravity of misconduct and is  unsupportable.          Herein it is worthwhile to recall the finding of the learned  Single Judge who has rightly held that the assault on the senior  officials by the workmen in discharging of their duties is a  misconduct and in such a situation officials who are managing  the affairs will be demoralised.          This being the factual situation we are of the opinion that  the orders of the courts below modifying the punishment of  dismissal is unsustainable.         For the reasons stated above, the impugned orders of the

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Tribunal, Single Judge of the High Court and the Division  Bench of the High Court are set aside and the order of dismissal   of the appellant-Management in regard to the respondent -  workmen concerned is upheld.  The appeal is allowed.  

C.A. NO. 1347 OF 2005            Leave granted.          In view of the order made by us in Civil Appeal No. 3439  of 2003  this appeal is also  allowed.