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PETITIONER: RAMA KANT MISRA

       Vs.

RESPONDENT: STATE OF U.P. AND OTHERS

DATE OF JUDGMENT21/10/1982

BENCH: DESAI, D.A. BENCH: DESAI, D.A. ERADI, V. BALAKRISHNA (J)

CITATION:  1982 AIR 1552            1983 SCR  (1) 648  1982 SCC  (3) 346        1982 SCALE  (2)942

ACT:      Industrial  Disputes   Act,  1947-Section   11A-Workman charged with use of threatening and abusive language against a  senior   officer  unbecoming  of  a  disciplined  worker- Dismissed       from       service-Punishment,       whether disproportionately heavy  or excessive-Tests for determining punishment.

HEADNOTE:      In  order   to  avoid  the  charge  of  vindictiveness, justice, equity  and fairplay  demand that  punishment  must always be  commensurate with  the  gravity  of  the  offence charged. In the development of industrial relation norms law has moved  far from  the days when quantum of punishment was considered a  managerial function  with the courts having no power to  substitute their  own decision in place of that of the management. More often, the courts found that, while the misconduct was proved, the punishment was disproportionately heavy.  As   the  situation   then  stood,  courts  remained powerless and  had to  be  passive  sufferers  incapable  of curing the  injustice. Parliament  stepped in and enacted s. IIA of the Industrial Disputes Act by which the Labour Court is clothed  with jurisdiction  and power  to substitute  its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified  in the  facts and  circumstances of the case. This Court,  while exercising jurisdiction under Article 136 can examine whether the Labour Court has properly approached the matter  in exercising  or refusing to exercise its power under  section  11A.  The  words  that  the  court  must  be "satisfied that  the order of discharge or dismissal was not justified" occurring  in  section  11A  indicate  that  even though misconduct is proved and a penalty has to be imposed, the extreme  penalty  of  dismissal  or  discharge  was  not justified in the facts and circumstances of the case meaning thereby that  the punishment  was either  disproportionately heavy or excessive.      In the  instant case  the charge against the appellant- workman  was  that  he  had  used  threatening  and  abusive language  against   a  senior   officer  unbecoming   of   a disciplined workman  and had  adopted a threatening posture, subversive of  discipline. An  inquiry was conducted. On the

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recommendations of  the  Inquiry  officer  the  workman  was dismissed from service.      The Labour  Court upheld the order of dismissal and the High Court  dismissed the appellant’s petition under Article 227. 649      On the  question whether  the order  of  dismissal  was justified on the facts and in the circumstances of the case. ^      HELD: The order of dismissal was not justified. [653 A]      It is  a well  recognized principle  of  jurisprudence, which permits penalty to be imposed for misconduct, that the penalty must be commensurate with the gravity of the offence charged. [653 C-D]      The appellant-workman  had put in more than 14 years of service and  had been  the Secretary  of the workers’ union. The management  had not shown that there was any blameworthy conduct on  his part  during the  period of his service. The misconduct alleged  against him consisted of use of language which was  indiscreet and improper, disclosing a threatening posture. [653 E-F]      When  it   is  said   that  his  language  disclosed  a threatening posture  it was the subjective conclusion of the person who  heard the  language because  voice modulation of each person  in the  society differs.  Indiscreet, improper, abusive language  may show  lack of culture. But mere use of such  language   on  one   occasion  unconnected   with  any subsequent  positive   action  and   not  preceded   by  any blameworthy conduct  cannot permit  an  extreme  penalty  of dismissal from service. [653 F-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1531 of 1980.      Appeal by  special leave  from the  judgment and  order dated the  9th August,  1978 of  the Allahabad High Court in C.M. Writ No.6788 of 1978      J.K Goel for the Appellant      S.Markendeya for Respondent.      The order of the Court was delivered by      DESAI J. Appellant Ramakant Misra joined service in the Kanpur Electric  Supply Administration (’Administration’ for short) which  was then  a Department  of the  Government  of Uttar Pradesh.  On the  constitution of  U.P.    Electricity Board  (’Board’   for  short),   under  the   provisions  of Electricity (Supply)  Act,  1948  (’Act’  for  short),  with effect  from   April  1,1958,  the  Kanpur  Electric  Supply Administration  stood  transferred  to  the  Board  and  the employees working in the Administration were deemed to be on deputation to 650 the Board  though  they  would  continue  to  be  Government servants as  provided in a Circular dated March 13, 1959. As per Notification No. 3721E/74-23P         (3)-155E/174 dated August 3, 1974 the posts held formerly in the Administration by  the   employees  working   in  the  Administration  were abolished  and  the  deputationists  were  absorbed  in  the service of the Board. However, before the appellant could be so absorbed  he was  served with  a charge sheet on November 19,  1971,   alleging  that  he  was  guilty  of  disorderly behaviour punishable  under the  relevant  Standing  orders. Simultaneously the  appellant  was  suspended  from  service pending a  departmental inquiry. The inquiry officer who was

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appointed to  hold the  inquiry after  holding  the  inquiry recorded his finding that the charge was proved. It would be advantageous to  reproduce the  charge. It is extracted from the report of the inquiry officer:           "Shri Rama  Kant was  charged for misconduct under      clause 20  (9) .  18 and  28 of the Standing Orders for      disorderly behaviour  or  conduct  likely  to  cause  a      breach of  peace threatening  an  employee  within  the      premises and  conduct  prejudiced  to  good  order  and      discipline".      The specific  allegation is  that on November 18, 1971, around  2.50   p.m.  appellant  was  complaining  about  the deduction that was being made from his wages for his absence from the  place  of  work  and  late  attendance  with  Shri Mahendra Singh. When Shri Mahendra Singh replied that he had no separate  rules for him, the appellant is alleged to have lost his  balance. The  threatening language alleged to have been used by the appellant when freely translated reads:           "Are other  persons your  father. I  will make you      forget your  high handedness  either here  or somewhere      else. An  officer of yesterday’s making discloses power      consciousness".      The inquiry  officer held  that the words attributed to the appellant were used by him in reference to Shri Mahendra Singh  and  that  use  of  such  language  would  constitute misconduct within  the  relevant  clauses  of  the  Standing Orders   hereinbefore   mentioned.   The   inquiry   officer recommended dismissal  from service. As the matter was being dealt  with   on  the  footing  that  the  appellant  was  a Government servant entitled to the protection of Article 311 of the Constitution, 651 a second  show cause notice according to the provisions then contained in  Art. 311  was required  to  be  served  before penalty was  finally imposed  upon him.  But even before the notice was  served the  appellant was dismissed from service on April 6, 1972.      A dispute  having been  raised questioning the validity of  termination   of  service  of  the  appellant,  the  1st respondent made  a reference  to the  Labour Court, U.P. for adjudication of  the dispute.  The Labour Court by its Award dated March  21, 1978,  held that the termination of service of the  appellant was  legal and  proper. A  petition  under Article 227  of the  Constitution to  the High Court failed. Hence this appeal by special leave.      Mr. Markandeya,  learned counsel  who appeared  for the respondent  urged  that  any  person  who  claims  to  be  a Government employee  cannot seek  relief both  under Article 311 on  the footing  that he is holding a civil post or is a member of the civil service of the State on the one hand and a workman  falling  under  the  purview  of  the  Industrial Disputes Act,  1947, on  the other,  and that this aspect is being examined  by a  larger Bench.  In this  case it is not necessary to  resolve the  controversy because  we requested Mr. Markandeya  to state  specifically whether  according to him the  appellant on  the  date  of  his  dismissal  was  a Government servant  governed by Art. 311 or a workman within the meaning  of  the  Industrial  Disputes  Act,  1947.  Mr. Markandeya specifically  stated and  it was also held by the Labour Court  though wrongly  but which aspect at present is not relevant  that the appellant is not a Government Servant holding a civil post or a member of the civil service of the State but that he is a workman entitled to the protection of the Industrial  Disputes Act.  We  are  proceeding  on  that assumption in this case.

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    The charge  of  which  appellant  is  found  guilty  is already extracted  hereinbefore. It  amounts to a riotous or disorderly   behaviour   during   working   hours   at   the establishment. At  least this could not be said to be an act subversive of  discipline. The  misconduct attributed to the appellant is  that he  used some  language unbecoming  of  a disciplined  workman   and  may   have  thereby   exposed  a threatening posture  which is  alleged to  be subversive  of discipline.  Shorn   of  all   embellishments,  enraged   by deduction from  his wages  appellant, a  Joint Secretary  of Union of Workmen used some 652 language which can be said to be indiscreet. In order not to minimise the  gravity of  the charge  we have  extracted the charge by its free translation and it must be confessed that both the  learned counsel  who appeared  on either side were fully conversant  with the  Hindi language  and,  therefore, clearly understood  the import  of the  language used by the appellant. In the ultimate analysis the mis conduct is  use of  language indiscreet or may be said to be indecent or may be disclosing a threatening posture. We will proceed on  the assumption  that use  of  such  language  is punishable under the relevant Standing Orders. So what.      The punishment  must be  for misconduct. To some extent misconduct is  a civil crime which is visited with civil and pecuniary consequences.  In this  case it  has  resulted  in dismissal from  service. In  order to  avoid the  charge  of vindictiveness, justice,  equity and  fairplay  demand  that punishment must  always be  commensurate with the gravity of the  offence  charged.  In  the  development  of  industrial relation norms  we have moved far from the days when quantum of punishment  was considered a managerial function with the courts having  no power  to substitute their own decision in place of that of the management. More often the courts found that while  the misconduct  is  proved  the  punishment  was disproportionately  heavy.  As  the  situation  then  stood, courts remained  powerless and  had to  be passive sufferers incapable to curing the injustice. Parliament stepped in and enacted s. IIA of the Industrial Disputes Act which reads as under:           "11A. Where  an industrial dispute relating to the      discharge or  dismissal of  a workman has been referred      to a Labour Court, Tribunal or National or Tribunal for      adjudication and,  in the  course of  the  adjudication      proceeding,  the  Labour  Court  Tribunal  or  National      Tribunal, as  the case  may be,  is satisfied  that the      order of  discharge or  dismissal was not justified, it      may, by  its award, set aside the order of discharge or      dismissal and  direct reinstatement  of the  workman on      such terms and conditions, if any, as it thinks fit, or      give such  other relief  to the  workman including  the      award of  any lesser punishment in lieu of discharge or      dismissal  as   the  circumstances   of  the  case  may      require".      It is  now crystal  clear that the Labour Court has the jurisdiction  and   power  to   substitute  its  measure  of punishment in 653 place of the managerial wisdom once it is satisfied that the order of  discharge or  dismissal was  not justified  in the facts and  circumstances of  the case.  And this Court is at present exercising  jurisdiction under  Art.  136  over  the decision of  the Labour  Court.  Therefore  this  Court  can examine whether the Labour Court has properly approached the matter for  exercising or  refusing to  exercise  its  power

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under  s.   11A.  Before  we  can  exercise  the  discretion conferred by  s. 11A, the Court has to be satisfied that the order of  discharge or  dismissal was  not justified  in the facts and  circumstances of  the case.  These words indicate that even  though misconduct  is proved and a penalty has to be imposed,  the extreme  penalty of  dismissal or discharge was not justified in the facts and circumstances of the case meaning   thereby    that   the    punishment   was   either disproportionately heavy or excessive. As stated earlier, it is  a  well  recognised  principle  of  jurisprudence  which permits penalty  to  be  imposed  for  misconduct  that  the penalty must be commensurate with the gravity of the offence charged.      What has  happened here.  The  appellant  was  employed since 1957.  The alleged  misconduct consisting  of  use  of indiscreet or  abusive or  threatening language  occurred on November 18,  1971, meaning  thereby that  he had  put in 14 years of  service. Appellant  was Secretary of the workmen’s Union. The  respondent management  has not  shown that there was any  blameworthy conduct  of the  appellant  during  the period of 14 years’ service he rendered prior to the date of misconduct  and   the  misconduct   consists   of   language indiscreet, improper  or disclosing  a threatening  posture. When it  is  said  that  language  discloses  a  threatening posture it  is the  subjective conclusion  of the person who hears the  language because  voice modulation of each person in the  society differs  and  indiscreet  improper,  abusive language may show lack of culture but merely the use of such language on  one occasion  unconnected with  any  subsequent positive action  and not preceded by any blameworthy conduct cannot permit  an extreme penalty of dismissal from service. Therefore, we  are satisfied that the order of dismissal was not justified in the facts and circumstances of the case and the Court  must interfere.  Unfortunately, the  Labour Court has completely  misdirected itself  by looking  at the dates contrary to record and has landed itself in an unsustainable order. Therefore, we are required to interfere.      What ought  to be  the proper punishment in this case ? In our 654 opinion, in  such a  situation withholding of two increments with future effect will be more than adequate punishment for such a low paid employee.      Accordingly, this  appeal is  allowed and  the Award of the Labour Court is set aside as also the penalty imposed by the management  is quashed  and set  aside. The appellant is reinstated with  all the benefits, including the back wages, but his  two increments  falling due  from the  date of  his termination of service be withheld with future effect. P.B.R.                                       Appeal allowed. 655