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CASE NO.: Appeal (civil)  1508 of 2003

PETITIONER: Mahindra And Mahindra Ltd.               

RESPONDENT: N.B. Narawade                                 

DATE OF JUDGMENT: 22/02/2005

BENCH: N. Santosh Hegde,Tarun Chatterjee & P.K.Balasubramanyan

JUDGMENT: J U D G M E N T With

CIVIL APPEAL NO. 1507 OF 2003  SANTOSH HEGDE, J.

       This appeal is preferred against an order dated  23.8.2002 passed by the Division Bench of the High Court  of Judicature at Bombay dismissing an appeal filed by the  Management against an order of the learned Single  Judge who in turn had confirmed the award of the labour  court  which while upholding the finding of the domestic  inquiry that the respondent workman  herein had  committed the misconduct charged against him  interfered  with the quantum of punishment awarded to him still  chose to alter the punishment of dismissal to one of  reinstatement with continuity of service and 2/3rd back  wages w.e.f. 5.3.1993.         The basic facts necessary for the disposal of this  appeal are as follows:          It is stated by the appellant \026 Management  that the  respondent \026 workman was initially  appointed by it on  temporary basis from May, 1978 and was made  permanent on 9.8.1981 and was designated as a fitter in  the Chassis Assembly Department of the appellant  industry.  With reference to an incident which took place  on 7.111991 wherein it is alleged that the respondent \026  workman used abusive and filthy language against his  supervisor, an inquiry was instituted against the said  workman and the Inquiry Officer after considering the  material produced in the proceedings before him found  him guilty of misconduct and recommended his dismissal  and based on such recommendation service of the  respondent was terminated by the disciplinary authority  on  5.3.1991.         At the instance of the workman a reference was  made for adjudication  of the dispute to the labour court.   The labour court by its order dated 5.9.1996 held that the  charge-sheet issued to the respondent-workman was  vague.  Hence, the Management issued a fresh charge- sheet and initiated a fresh inquiry in which both the  parties led evidence and the Inquiry Officer on  consideration of such evidence once again came to the  conclusion that the alleged misconduct was proved and  the said misconduct attracted a punishment of dismissal  under the standing orders of the Management,  accordingly proposed his dismissal which was accepted  by the disciplinary authority and the respondent-workman  was dismissed from the service.

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       In the second round  before the labour court, the   said court after considering the evidence that was brought  on record, specifically came to the conclusion that from  the evidence of witnesses of the company it is clear that  the respondent-workman had abused his superior on 22nd  November, 1991 in filthy language without any  provocation.  It also held that the said respondent- workman did not bring any cogent evidence on record in  his favour  that he did not commit any misconduct.   However, in regard to punishment  of dismissal imposed  on the respondent-workman the labour court came to the  conclusion that the same was harsh and improper hence,  deserved to be set aside and substituted  the said  punishment by directing the respondent’s reinstatement   with continuity of service but with 2/3rd  back wages w.e.f.  5.3.1993.   Being aggrieved by the said modification of the  punishment the appellant herein preferred a writ petition  before the learned Single Judge of the High Court of  Bombay.  The learned Single Judge in the said writ  petition by a short order dismissed the same. The said  order of the learned Single Judge reads as follows:  "The labour court has exercised its  jurisdiction under Section 11A of the  I.D. Act.  It has given its own reasons  and he is right in observing that  denial of 1/3 back wages for the  intervening period from 5.3.93 till  13.3.2001 would be good punishment  of the allegations proved before the  Court.  It would act as deterrent and  reformative.  He has learnt the cost of  the abusive words used by him.  He  will not get 1/3 wages for the whole  intervening period.  In my opinion  there is no illegality or infirmity in the  exercise of the jurisdiction under  Section 11-A of the Act  to warrant  any interference by this Court under  Article 226 of the Constitution of  India.  There is no miscarriage of  justice as the guilty workman has  received proportionate punishment.   There is no merits in the writ petition  hence it is rejected."            As could be seen from the above order of the learned  Single Judge while dismissing the writ petition the learned  Single Judge held that the misconduct alleged against the  workman has been proved  still it was of the opinion, the  modification of the punishment as done by the labour  court would act as deterrent and reformative and there is  no miscarriage of justice as the guilty workman has  received proportionate punishment.

       Against the said order of the learned Single Judge  the appellant preferred writ appeal before the Division  bench of the High Court.  The Division Bench of the High  Court considering the various judgments  cited before it  came to the conclusion that the power of the labour court  or industrial tribunal under Section 11 A or the equivalent  provisions of the said Act  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

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disproportionate with the misconduct proved against the  workman.  According to the High Court by the introduction  of Section 11A in the Industrial Disputes Act  what was  once largely in the realm of the satisfaction of the  employee  has  ceased to be so and presently the  satisfaction lies with the labour court or the tribunal which  finally decides the matter.          While on the merit of the charges framed against  the respondent and the findings given by the courts below  in regard to the misconduct committed by the workman it  held: "it is true that the respondent-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."   However, in the later part of the judgment it held: " 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 back wages 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  service, gravity of misconduct  and 15 years of service put  in by him."

       On the above basis  the Division Bench also  dismissed the appeal of the Management.  Hence,  Management is before us in this appeal.  

       Mr. Dushyant A. Dave, learned Senior counsel  appearing for the appellant-Management submitted that  the courts below have totally misconstrued the scope of  Section 11-A of the I.D. Act and it is because of this  misconception as to the scope of the Act,  the courts  below have wrongly come to the conclusion  that  irrespective of the gravity of misconduct the labour court  had a wide discretion  in altering or interfering with the  punishment awarded by the disciplinary authority.  On  facts he submitted that  this workman had been charge  sheeted  several times earlier  and on every such case of  misconduct, Management took a lenient  view and  imposed minor punishments.  He pointed out from the  records that in one incident that took place on 6th  September, 1988 this workman had assaulted his co- worker  by name Shri G.I. Puranik  with a galvanized pipe  weighing about 2 kg. causing grievous injury. Even in  such a situation, the respondent was only punished with  suspension of 4 days. According to the learned counsel  the incident of 22.11.1991 was unprovoked incident when  his supervisor asked him to do a particular  job which was  entrusted  to him, he allegedly told the supervisor to call  the Engineer-in-charge  so that he could talk to him rather  than the supervisor and when the Engineer came and  requested him to carry on with the  work he abused the  supervisor in a very filthy language in the presence of his  subordinates and later on when the Engineer went back  to his cabin he followed him to the cabin and again  abused him in the presence of a member of the Labour  Union in similar language and even threatened him which  act of the respondent-workman, according to the learned  counsel, is subversive of discipline  and good behaviour  within the premises of the company and would undermine  the discipline in the industry.         The learned counsel further submitted that the  language used against the superior officer are such that,  that  by itself should have been sufficient for the labour

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court to accept the punishment awarded by the  Management.          The learned counsel then pointed out that the  labour court  under a misconception in regard to its  jurisdiction under Section 11-A of the Act without  properly  considering the decision of this Court in the case of U.P.  State Road Transport Corpn. Vs. Subhash Chandra  Sharma & Ors. [(2000) 3 SCC 324 ]  which according to   the learned counsel clearly laid down the parameters  within  which the labour court or any other court could  operate  while considering the question of proportionality  of punishment erroneously proceeded to pass the  impuged order.  He placed special emphasis on the  following paragraph of the above judgment of this Court:  "Whether it is open to the Industrial  Tribunal or the labour court or the  High Court to interfere with the  quantum of punishment is, no  longer, res integra, as the question  as the question has been answered  by this Court several times it its  various decisions in B.C. Chaturvedi  Vs. Union of India [1995(6) SCC  749] a three-Judge Bench of this  Court held that that Section 11-A of  the Industrial Disputes Act, 1947  confers power on the Industrial  Tribunal/Labour Court to apply its  mind on the question of proportion  of punishment or penalty\005. that this  power is also available to the High  Court under Article 226 of the  Constitution, though it was qualified  with a limitation that while seized   as a writ court, interference is  permissible only when the  punishment/penalty is shockingly  disproportionate."

       Relying upon  the ratio laid down by this Court in the  said case B.C. Chaturvedi Vs. Union of India (supra),  the learned counsel submitted that unless courts below  come to a definite conclusion that the punishment  awarded by the Management is shockingly  disproportionate  to the misconduct as proved, it is not  open to the court to substitute such punishment merely  because some power to alter the punishment is vested in  it.          On this point the learned counsel also relied on  another judgment of  this Court in the case of Kailash  Nath Gupta Vs.  Enquiry Officer, (R.K.Rai) Allahabd  Bank & Ors. [ (2003) 9 SCC 480], wherein this Court  went one step further than in the earlier case of U.P.  State Road Transport Corpn.(supra) and held: "In the background of what has  been stated above, one thing is  clear that the power of interference  with the quantum of punishment, is   extremely limited." (emphasis  supplied).

       From the above he contended that view taken  by  the courts below in this case that the power of the labour  court under Section 11 \026A  is very wide and unlimited is  wholly erroneous.

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On facts, the learned counsel pointed out from the  judgment of the labour court that it had come to a definite  conclusion that the misconduct of the respondent- workman was committed without provocation and as a  matter of fact the workman did not even have an excuse  for the same, and hence there was no basis for the courts  below to reduce the punishment. From the judgment of  the learned Single Judge the learned counsel pointed out  that he also had agreed with the finding of the labour  court as to the gravity of the misconduct. Still without  considering the condition precedent for interfering with the  punishment by merely using words  like miscarriage of  justice and proportionate punishment, dismissed the  petition.                   From the judgment of the Division Bench the  learned counsel pointed out that the Bench was totally  carried away by a misconception of law that the power of  the labour court under Section 11-A is unlimited hence,  upheld the order of the labour court  in reducing the   punishment.  He submitted that the Division Bench fell in  error in distinguishing the various judgments cited before  it without any legal basis. For example, he pointed out  that the decision of this Court in the case of Christian  Medical College Hospital Employees Union and Anr.  Vs. Christian Medical College Vellore Association and  Ors. [ (1987) 4 SCC 691],   the Division Bench observed  that the said judgment is applicable only to minority  educational institutions which according to the learned  counsel is wholly erroneous.  Similarly with regard to the  decision  of this Court in U.P. State Road Transport  Corpn.(supra) the learned counsel pointed out that the  Division Bench distinguished the same on facts without  even referring to the principle of law laid down in the said  case.   The learned  counsel  for the appellant relied on the  judgment of this Court in the case of Orissa Cement,  Ltd.  Vs. V.Adikanda Sahu [1960 (1) LLJ \0260518-SC],   wherein a three Judge Bench of this Court  noticing the  filthy language used by the workman therein held: "Besides, the words used by the  respondent in abusing the labour  officer not once but twice without  any provocation  are absolutely  indecent and vulgar and in such   case, he could not keep in its  employment a person who was  capable of such indecent conduct, it  would be justified in dismissing him."

       Relying on the said observation the learned counsel  submitted that the same applied with full force to the issue  involved in this case and submitted that even though  there was an apology in the case of Orissa Cement Ltd.  (supra), still this Court came to the conclusion that a  punishment of dismissal was justified for using a filthy and  abusive language against a superior officer. The learned  counsel  also relied another judgment of this Court in the  case of New Shorrock Mills   Vs. Maheshbhai T. Rao [  1996 (6) SCC 590]  wherein this Court again considering  the case of workman abusing his superior and threatening  him held :  "The labour court, in the present  case, having come to the  conclusion that the finding of the

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departmental enquiry was legal and  proper, the order of discharge was  not by way of victimisation and that  the respondent workman had  seriously misbehaved and was thus  guilty of misconduct, ought not to  have interfered with the punishment  which was awarded, in the manner  it did.  This is not a case where the  court could come to the conclusion  that the punishment awarded was  shockingly disproportionate to the  employee’s conduct and his past  record\005.."

        Learned counsel appearing  for the respondent,  however, contended that even though all courts below in  regard to the factum of misconduct have held against the  workman/respondent still rightly came to the conclusion  that the punishment of dismissal was too harsh a  punishment and was totally disproportionate to the  misconduct proved.   In support of this contention the  learned counsel pointed out from the award  of the labour  court that it had taken into consideration that the  respondent-workman had worked  with the appellant  company for a large of number years and held that  knowing the  consequences of dismissal he would have  by now learnt a lesson not to misbehave in future, hence,  he must be given an opportunity to redeem himself. He  submitted that the Labour Court with the said view in mind  had reduced  the punishment.  He also relied on the  observation of the learned Single Judge that a  punishment of dismissal for the proved misconduct on the  facts of this case would lead to miscarriage of justice and  by reducing the said punishment workman has now  received a proportionate punishment.  From the judgment  of the Division Bench the learned counsel pointed out that  it has held that even  intemperate and abusive language   would not be sufficient to warrant the punishment of  dismissal.   Relying on these observations of the courts  below the learned counsel for the respondent-workman  submitted that since the courts below have taken a lenient  view of the matter  which is permissible under Section 11- A of the Act we should not interfere with the orders of the  courts below in altering the punishment.          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 concerned  workman  is found guilty of misconduct.  The said area of  discretion has been very well defined  by the various  judgments of this Court referred to herein above 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 requires 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 can not by way of sympathy alone  exercise the power under Section 11-A of the Act and

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reduce the punishment. As noticed herein above atleast  in two of the cases cited before us, i.e. Orissa Cement  Ltd. (supra) and New Shorrock Mills (supra), 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 civilized 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 herein above.          Learned counsel for the respondent contended that  there was sufficient provocation for the use of such words  because the workman was asked to do certain work  which was impossible to be done by any person without  causing harm to himself, but this is not the defence that  was taken in the enquiry or before the Labour Court and  is being argued for the first time before this Court. On the  contrary, the sole defence of the workman was that he did  not remember abusing the engineer concerned.         We may also note here that the learned counsel for  the appellant has pointed out from the records that the  workman was charge-sheeted more than once on earlier  occasions and inspite of the gravity of the offence he was  dealt with leniently. He pointed out that in one such earlier  instance this workman had assaulted his co-worker with a  galvanized pipe causing grievous injury, even then he  was punished with 4 days suspension only which  according to the learned counsel clearly shows that the  Management- appellant is not being vindictive.         Taking into consideration the over all fact situation  and the law laid down by this court and inspite of the fact  that three courts have concurrently come to the  conclusion that the punishment of dismissal would be  disproportionate to the misconduct, we will have to  disagree with those findings.         For the reasons stated above, this appeal  succeeds. The order of the Division Bench, Single Judge  of the High Court and that of the Labour Court to the  extent that it sets aside the order of dismissal and directs  the reinstatement, is quashed.  We uphold the order of  the disciplinary authority dismissing the respondent- workman from service.          The appeal is allowed.  

CIVIL APPEAL NO. 1507 OF 2003  

       This is an appeal filed by the workman who is the  respondent in the above civil appeal questioning the  quantum of reduction in his back wages.  In view of the  fact that we have allowed the appeal of the Management  by our  judgment in Civil appeal No. 1508 of 2003 this  appeal becomes infructuous  and the same is dismissed.