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PETITIONER: PALGHAT BPL & PSP THOZHILALI UNION

       Vs.

RESPONDENT: BPL INDIA LTD. & ANR.

DATE OF JUDGMENT07/09/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 SCC  (6) 237        JT 1995 (9)   587  1995 SCALE  (5)452

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted      The appellant  is a  trade union espousing the cause of three workmen,  viz., V.  Rajamanicham, N.  Raghavan and  M. Prabhakaran. The undisputed facts are that while the workmen were on  strike, the management suddenly backed out from the settlement in  reconciliation proceedings. As a consequence, the workmen  started strike.  On March  14, 1983,  while the said workmen were standing at BPL Bus Stop on Pollachi Road, National  Highway   Diversion,  they  sighted  the  officers passing through  the way  and assaulted N.V. Subramanian and others. It  is the case of the management that Rajamanickam, Raghvan and  others threw  stones and  one of the stones hit Subramanian on  the head  and on the upper part of the right hand causing  grievous injuries.  It is also their case that Prabhakaran hit  Subramanian with  a stick.  Thereafter, the management issued  show cause  notice to the said workmen on March 21,  1983 alleging  that the  appellants had committed misconduct.  The   appellants  denied  the  allegations  and submitted their reply on March 25, 1983. On consideration of the reply,  a charge-sheet  was issued  to the appellants on April 12,  1983 and  an enquiry  officer was  appointed  who submitted ex-parte report on April 19, 1983. In consequence, the management dismissed them from service.      The appellants challenged the same in a reference under under Section  10 of  the Industrial Disputes Act, 1947. The Labour Court  in I.D. 4/86, by its order dated 13.4.1987 set aside the  punishment and directed reinstatement with 25% of back-wages. In  other words,  it ordered deduction of 75% of back-wages. The management filed a writ petition in the High Court. The  learned Single  Judge in his order dated October 31, 1989  in O.P.  Nos. 4034/88 and 3841/89-EG set aside the award of  the Labour Court. On appeal, the Division Bench in Writ Appeal  No.475/90 dated  22nd August  8, 1990 confirmed the same.  In the  meanwhile, after the learned Single Judge

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had delivered the judgment, the appellants were dismissed on November 3, 1989. Thus, this appeal by special leave.      The learned  counsel for  the appellants contended that the alleged acts of the appellants are not misconduct within the meaning  of Clause  39 (h)  of  the  certified  Standing Orders of  the Company  and that  the findings  of the  High Court  are,   thus,  illegal.   We  find  no  force  in  the contention. Clause  39 (h)  of the  Standing Orders  of  the Company reads:      "39(h):   Drunkenness,    riotous     or      disorderly  behaviour   during   working      hours within the premises of the company      or any  act  subversisve  of  discipline      either within or outside the premises of      the Company."      A reading  of Clause 39 (h) indicates that drunkenness, riotous or  disorderly behaviour during working hours within the premises  of the  Company is misconduct. The second part thereof indicates  that any  act  subversive  of  discipline committed either  within or  outside  the  premises  of  the Company is also misconduct. Though the learned counsel seeks to contend  that it  is not a misconduct, it is difficult to accept the  contention. Any  act  subversive  of  discipline committed outside  the premises  is also misconduct. Any act unrelatable to  the service  committed outside  the  factory would not  amount to  misconduct. But when misconduct vis-a- vis the  officers of the management is committed outside the factory, certainly  the same  would be  an act subversive of discipline. The  object appears  to be  that workmen need to maintain discipline  vis-a-vis its  management. What amounts to misconduct  is a  question of  fact. It  would be decided with reference  to the facts, the situation in which the act was alleged  to  have  been  committed,  and  the  attending circumstances leading thereto.      In this  case, the  finding recorded  by the High Court and the  Labour Court  is that  stones were  thrown and  the officers were  attacked which  resulted in grievous injuries to the  officers. But  it is  seen that the appellants alone were not  members of the assembly of the workmen standing at the BPL  Bus Stop.  The Labour  Court had  discretion  under Section 11-A  of the Industrial Disputes Act to consider the quantum of  misconduct and  the punishment.  In view  of the surging circumstances,  viz., the  workmen were agitating by their collective bargain for acceptance of their demands and when the  strike was  on, the settlement during conciliation proceedings, though  initially agreed  to, was resiled later on. They appear to have attacked the officers when they were going to  the factory. Under these circumstances, the Labour Court was  well justified  in taking  lenient  view  and  in setting aside the order of dismissal and giving direction to reinstate the  workmen with  a cut  of 75% of the back-wages upto the  date of  the award.  In our  considered view,  the discretion exercised  by the  Labour  Court  is  proper  and justified in  the above  facts and  circumstances. The  High Court had  not adverted  to these  aspects of the matter. It merely had gone into the question whether the act complained of is a misconduct.      May it  be stated that if the appellants were gainfully employed from  November 3,  1989 till  date, the  management would be  entitled not to pay full back-wages. That would be a matter  to be  decided by the Labour Court. It is directed to decide that question. However, the management is directed to reinstate  the appellants  into service forthwith. Labour Court is  directed to  conduct the enquiry into the question of gainful  employment, if  any. The appellants should place

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their case and the management is also entitled to adduce its evidence in  rebuttal thereof. Labour Court would decide the matter and  the decision  of the  Labour Court should not be appealed thereunder  by either  party.  The  appellants  are directed to  report for  duty on  1st October,  1995 and the respondent would take them into service.      The appeal is allowed accordingly. No costs.