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PETITIONER: NEW SHORROCK MILLS

       Vs.

RESPONDENT: MAHESHBHAI T. RAO

DATE OF JUDGMENT:       25/10/1996

BENCH: J.S. VERMA, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T KIRPAL, J.      The only  question which  arises for  consideration  in this appeal  is whether  the Labour Court, having found that the employee  was guilty of misconduct in an inquiry held in accordance with  law and  in compliance  with principles  of natural justice,  can set  aside the  order of his discharge and substitute  the same with an order of reinstatement with forty per cent back wages.      The respondent  was engaged  as a Badli workman, by the appellant,  some   time  in   October,  1971.      On   29th December,1976 the  respondent  entered  the  office  of  the Deputy Manager  and started  abusing him and threatened that the mill  officers   will not  be safe  outside the mill and that he  did not  care if he had to go to jail for murder of four to five officers.      In view  of  the  aforesaid  abusive  behavior  of  the respondent a  show cause  notice under  Clause 22(1)  of the Standing Orders was served on him.  This notice was based on the complaint  dated 31st  December, 1976  which was made by the said  Deputy Manager  to the management of the appellant mill.      Thereafter, a domestic inquiry was held, witnesses were examined and full opportunity was given to the respondent to defend himself.  After the inquiry proceedings concluded the respondent was  served with  a notice by the Inquiry Officer to show  cause why  he should  not be  discharged  from  the service of  the mill.   A  reply dated  30th July,  1977 was filed  by  the  respondent.    The  Inquiry  Officer,  after considering the  entire material  on record  and also  after taking into  account the explanation offered by the workman, came to  the conclusion  that the  respondent  was  in  fact guilty of  misconduct.   By order dated 2nd August, 1977 the respondent was  discharged from  the service as Badli worker with immediate  effect.   He, however, was given thirty days salary in lieu of the notice period.      The  respondent  then  moved  the  Labour  Court  under Section 79  of The  Bombay Industrial  Relations Act,  1946, inter alia,  praying that  the order  of discharge dated 2nd August, 1977  be  declared  as  illegal  and  he  should  be

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reinstated with  continuity in  service and be paid the back wages.   No oral  or documentary evidence was Led before the Labour Court  which considered  the entire material relating to the matter as had been placed before the Inquiry Officer.      The labour  Court passed an order dated 22nd June, 1980 and, inter alia, held as follows:-      (a) That  the  charge  against  the      respondent was  neither  vague  nor      unclear:      (b)  That   the  finding    of  the      Departmental Enquiry  was legal and      proper;      (c) That the order of discharge was      not passed by way of victimisation;      (d) That  the Departmental  Enquiry      had  been   conducted  legally  and      properly  and  the  respondent  was      offered reasonable  opportunity  of      hearing;      (e) That  in passing  the order  of      discharge, the appellant management      had not  acted outside the scope of      the enquiry;      (f) That the respondent workman had      seriously   misbehaved   with   his      superior  officers   and  was  thus      guilty of misconduct;      (g) That  the finding of misconduct      reached in  the enquiry was neither      perverse  nor   baseless  but   was      proved on  the basis of evidence on      record. Notwithstanding  the   fact  that  it  had  arrived  at  the aforesaid conclusion  the Labour  Court interfered  with the punishment which was awarded by observing as follows:-      "    Looking to  the facts  of this      case and  the facts of the evidence      of the  witnesses produced  in this      case,   on   the   basis   of   the      departmental  inquiry  against  the      applicant, the allegations levelled      against the  applicant are  proved.      But as discussed hereinabove having      regard  to   the   decisions,   the      punishment   of   discharging   the      applicant from  the service imposed      by the  opponent mills  company  is      excessive and  harsh and  it  leads      the    applicant     to    economic      destruction.   On account  of  this      the family members of the applicant      may  also  have  to  suffer.    The      punishment  of   discharging   from      service may  only be  imposed  when      there is  no alternative  except to      discharge   the    applicant.   The      Hon’ble High  Court and the Hon’ble      Supreme Court  have in  many  cases      adopted the  course hat in cases of      such a  nature, harsh punishment of      dismissal of  the applicant  should      not be  imposed.   The applicant of      this matter  also on  the basis  of      the decisions  stated  hereinabove,      the applicant  is  entitled  to  be

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    reinstated  in  the  opponent  mill      company in  his original  post with      continuity of service.      The appellant  filed a writ petition before the Gujarat High Court but the same was dismissed in limine by observing that the  impugned judgment  was just and proper and did not require to  be interfered with under Articles 226 and 227 of the Constitution.   This  appeal arises on the special leave having been  granted against  the said  decision of the High Court.      It appears  to us  that  the  Labour  Court  completely misdirected   itself    in   ordering    the    respondent’s reinstatement with  forty per  cent back  wages.  The Labour Court was  exercising jurisdiction  under Section  78 of the The Bombay  Industrial Relations  Act, 1946.    It  had  the jurisdiction, inter  alia, to  decide the disputes regarding the propriety and legality of an order passed by an employer acting or  purporting to act under the Standing Orders.  The Labour Court,  in the  present  case,  having  come  to  the conclusion that  the finding of the departmental inquiry was legal, and  proper, respondent’s  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 which was  awarded   was  shockingly   disproportionate   to   the employee’s conduct  and his  past record.   The Labour Court completely overlooked  the  fact  that  even  prior  to  the incident in question the respondent had misconducted himself on several  occasions and  had been  punished.  According to the appellant there were atleast three other instances where the respondent  had misconducted  himself and  that  he  had failed to  improve his  conduct despite  his assurances from time to  time.   An other aspect which was overlooked by the Labour Court  was that on the finding of the Inquiry officer that the respondent had misbehaved with his superior officer and was  guilty of  misconduct,  the  appellant  could  have dismissed the  respondent from service.  The appellant chose not to do so.  Instead it passed on order of discharging the respondent from   service.   Lesser  punishment having  been given by the management itself there was, in our opinion, no justifiable reason  for the  Labour Court  to have set aside the punishment so awarded.  We are unable to accept that the punishment  imposed   by  the  management  was  in  any  way disproportionate  to  warrant  interference  by  the  Labour Court.     The  direction   of  the  Labour  Court  ordering reinstatement of  the respondent  with forty  per cent  back wages was clearly unwarranted.      For the  aforesaid reasons  while allowing  this appeal the order dated 22nd June, 1990 of the Labour Court, Nadiad, in so far as the order of reinstatement of the respondent is concerned, is  set aside.   There  will be  no order  as  to costs.