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CASE NO.: Appeal (civil)  3852 of 2006

PETITIONER: M/s. L&T Komatsu Ltd

RESPONDENT: N. Udayakumar

DATE OF JUDGMENT: 03/12/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 3852 OF 2006

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment rendered by a  Division Bench of the Karnataka High Court allowing the writ  appeal filed by the respondent (hereinafter referred to as the  ’workman’) while dismissing the writ appeal filed by the  appellant.   

3.      Undisputed background facts are as follows:

Respondent had been working as an employee with M/s.  L&T Komatsu Ltd., Bangalore. He remained absent  unauthorisedly for 105 days between 1.8.2000 and 30.4.2001.   Disciplinary proceedings were initiated against him and a  regular departmental enquiry was held.  It is common case of  the parties that the charge of unauthorized absence was  proved in the said enquiry which has been found to be fair and  proper and in accordance with the principles of natural  justice.  The enquiry report was accepted by the management  and the respondent was dismissed from service.  This  dismissal gave rise to an industrial dispute and the workman  filed an application under Sub-section (4A) of Section 10 of the  Industrial Disputes Act, 1947 (as introduced in the State of  Karnataka) (for short the ’Act’).  On a consideration of oral and  documentary evidence led by the parties and having regard to  the fact that the workman had been remaining absent on  several occasions, the Labour Court found that though the  workman was remaining absent unauthorisedly, the extreme  punishment of dismissal from service was too harsh and  disproportionate to the gravity of the charge and that lesser  punishment would meet the ends of justice.    Accordingly, the order of dismissal was set aside and the  management was directed to reinstate the workman with  continuity of service but without back wages.  The Labour  Court awarded the punishment of stoppage of four increments  with cumulative effect.  This award came to be challenged by  the management in the writ petition. On a consideration of the  contentions advanced before him the Learned Single Judge  modified the award and deprived the workman from continuity  of service.  In other words, management was directed to  reinstate the workman without continuity of service while

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maintaining the remaining part of the award.  It is against this  order that both the management and the workman filed writ  appeals before the Division Bench.

4.     Learned Single Judge noted that there were proved cases  of misconduct of unauthorized absentism for 15 times but the  workman had not improved his conduct.  Notwithstanding this  finding, learned Single Judge held that at the relevant point of  time the workman was not well and was taking treatment at  St. Martha Hospital.  Accordingly it was held that the order of  termination is harsh under the facts and circumstances of the  case but looking into the past history directed reinstatement  without continuity of service and without back wages.   By the  impugned order the Division Bench allowed the appeal filed by  the respondent while dismissing the appeal filed by the  present appellant.   

5.      In support of the appeal learned counsel for the appellant  submitted that it was not for the first time that the respondent  was guilty of absentism; on the contrary there were 15 such  earlier instances without any justifiable reason.  The Labour  Court directed reinstatement with continuity of service but not  back wages.  Learned Single Judge, on the other hand, instead  of holding that the interference of the Labour Court with the  quantum of punishment was not justified, directed  reinstatement without continuity of service and back wages.  The Division Bench without noticing the relevant factors has  directed reinstatement without back wages but with continuity  of service.

6.      It is submitted that habitual absentism is gross violation  of discipline.  It is also submitted that the parameters for the  exercise of Section 11A of the Act have not been kept in view  by the Labour Court and the High Court.   

7.      In response, learned counsel for the respondent  submitted that because of personal problems there was  unintentional absence and that should not have been  seriously viewed.  The reply to the second show cause notice  on which the emphasis is laid by the appellant to contend that  respondent had admitted his guilt was taken under coercion.   It is also submitted that the discretion for exercise of  jurisdiction under Section 11A has been rightly exercised.

8.      So far as the question whether habitual absentism  means the gross violation of discipline, it is relevant to take  note of what was stated by this Court in M/s. Burn & Co. Ltd.  v. Their Workmen and Ors. [AIR 1959 SC 529]

"There should have been an application  for leave but Roy thought that he could claim  as a matter of right leave of absence though  that might be without permission and though  there might not be any application for the  same.  This was gross violation of discipline.  Accordingly, if the company had placed him  under suspension that was in order.  On these  findings, it seems to us that the Tribunal erred  in holding that it could not endorse the  Company’s decision to dispense with the  services altogether.  In our opinion, when the  Tribunal upheld the order of suspension it  erred in directing that Roy must be taken back  in his previous post of employment on the pay  last drawn by him before the order of

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suspension."

9.      In Life Insurance Corporation of India v. R. Dhandapani,  [AIR 2006 SC 615] it was held as follows: .

"It is not necessary to go into in detail regarding the  power exercisable under Section 11A of the Act. The  power under said Section 11A has to be exercised  judiciously and the Industrial Tribunal or the  Labour Court, as the case may be, is expected to  interfere with the decision of a management under  Section 11A of the Act only when it is satisfied that  punishment imposed by the management is wholly  and shockingly disproportionate to the degree of  guilt of the workman concerned. To support its  conclusion the Industrial Tribunal or the Labour  Court, as the case may be, has to give reasons in  support of its decision. The power has to be  exercised judiciously and mere use of the words  ’disproportionate’ or ’grossly disproportionate’ by  itself will not be sufficient. 9. In recent times, there is an increasing evidence of  this, perhaps well-meant but wholly unsustainable,  tendency towards a denudation of the legitimacy of  judicial reasoning and process. The reliefs granted  by the Courts must be seen to be logical and  tenable within the framework of the law and should  not incur and justify the criticism that the  jurisdiction of the Courts tends to degenerate into  misplaced sympathy, generosity and private  benevolence. It is essential to maintain the integrity  of legal reasoning and the legitimacy of the  conclusions. They must emanate logically from the  legal findings and the judicial results must be seen  to be principled and supportable on those findings.  Expansive judicial mood of mistaken and misplaced  compassion at the expense of the legitimacy of the  process will eventually lead to mutually  irreconcilable situations and denude the judicial  process of its dignity, authority, predictability and  respectability. [See: Kerala Solvent Extractions Ltd.  v. A. Unnikrishnan and Anr. [1994 (1) SCALE 631)]. Though under Section 11A, the Tribunal has  the power to reduce the quantum of punishment it  has to be done within the parameters of law.  Possession of power is itself not sufficient; it has to  be exercised in accordance with law.  The High Court found that the Industrial  Tribunal had not indicated any reason to justify  variations of the penalty imposed. Though learned  Counsel for the respondent tried to justify the  Award of the Tribunal and submitted that the  Tribunal and the learned Single Judge have  considered the case in its proper perspective, we do  not find any substance in the plea. Industrial  Tribunals and Labour Courts are not forums whose  task is to dole out private benevolence to workmen  found by Labour Court/Tribunal to be guilty of  misconduct. The Tribunal and the High Court, in  this case, have found a pattern of defiance and  proved misconduct on not one but on several  occasions. The compassion which was shown by the  Tribunal and unfortunately endorsed by learned  single Judge was fully misplaced."

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10.     In Mahindra and Mahindra Ltd. v. N.B. Narawade  [2005(3) SCC 134] it was noted as follows:  "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, 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."  

11.     Again in M.P. Electricity Board v. Jagdish Chandra  Sharma [2005 (3) SCC 401] this Court dealt with the matter as  follows:   "The question then is, whether the interference  with the punishment by the Labour Court was  justified? In other words, the question is  whether the punishment imposed was so  harsh or so disproportionate to the charge  proved, that it warranted or justified  interference by the Labour Court? Here, it had  been clearly found that the employee during  work, had hit his superior officer with a  tension screw on his back and on his nose  leaving him with a bleeding and broken nose.  It has also been found that this incident was  followed by the unauthorised absence of the  employee. It is in the context of these charges  found established that the punishment of

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termination was imposed on the employee. The  jurisdiction under Section 107-A of the Act to  interfere with punishment when it is a  discharge or dismissal can be exercised by the  Labour Court only when it is satisfied that the  discharge or dismissal is not justified.  Similarly, the High Court gets jurisdiction to  interfere with the punishment in exercise of its  jurisdiction under Article 226 of the  Constitution only when it finds that the  punishment imposed, is shockingly  disproportionate to the charge proved. These  aspects are well settled. In U.P. SRTC v.  Subhash Chandra Sharma this Court, after  referring to the scope of interference with  punishment under Section 11-A of the  Industrial Disputes Act, held that the Labour  Court was not justified in interfering with the  order of removal from service when the charge  against the employee stood proved. It was also  held that the jurisdiction vested with the  Labour Court to interfere with punishment  was not to be exercised capriciously and  arbitrarily. It was necessary, in a case where  the Labour Court finds the charge proved, for a  conclusion to be arrived at that the  punishment was shockingly disproportionate  to the nature of the charge found proved,  before it could interfere to reduce the  punishment. In Krishnakali Tea Estate v. Akhil  Bharatiya Chah Mazdoor Sangh, this Court  after referring to the decision in State of  Rajasthan v. B.K. Meena  also pointed out the  difference between the approaches to be made  in a criminal proceeding and a disciplinary  proceeding. This Court also pointed out that  when charges proved were grave, vis-?is the  establishment, interference with punishment  of dismissal could not be justified. In Bharat  Forge Co. Ltd. v. Uttam Manohar Nakate this  Court again reiterated that the jurisdiction to  interfere with the punishment should be  exercised only when the punishment is  shockingly disproportionate and that each  case had to be decided on its facts. This Court  also indicated that the Labour Court or the  Industrial Tribunal, as the case may be, in  terms of the provisions of the Act, had to act  within the four corners thereof. It could not sit  in appeal over the decision of the employer  unless there existed a statutory provision in  that behalf. The Tribunal or the Labour Court  could not interfere with the quantum of  punishment based on irrational or extraneous  factors and certainly not on what it considers a  compassionate ground. It is not necessary to  multiply authorities on this question, since the  matter has been dealt with in detail in a recent  decision of this Court in Mahindra and  Mahindra Ltd. v. N.B. Narawade.  This Court  summed up the position thus: (SCC p. 141,  para 20)  "20 . It is no doubt true that after  introduction of Section 11-A in the  Industrial Disputes Act, certain

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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."  It may also be noticed that in Orissa Cement  Ltd. v. Adikanda Sahu and in New Shorrock  Mills v. Maheshbhai T. Rao this Court held that  use of abusive language against a superior,  justified punishment of dismissal. This Court  stated "punishment of dismissal for using  abusive language cannot be held to be  disproportionate". If that be the position  regarding verbal assault, we think that the  position regarding dismissal for physical  assault, must be found all the more justifiable.  Recently, in Muriadih Colliery BCC Ltd. v. Bihar  Colliery Kamgar Union this Court after  referring to and quoting the relevant passages  from Krishnakali Tea Estate v. Akhil Bharatiya  Chah Mazdoor Sangh  and Tournamulla Estate  v. Workmen  held: (SCC p.   336, para 17)  "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."  

12.     When the factual background is considered in the light of  principles indicated above, the inevitable conclusion is that  the Labour Court and the High Court were not justified in  directing the reinstatement by interference with the order of  termination.  The orders are accordingly set aside.  The Order  of termination as passed by the concerned authority stands  restored.  The appeal is allowed with no orders as to costs.