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PETITIONER: U.P.  STATE ROAD TRANSPORT CORPORATION

       Vs.

RESPONDENT: SUBHASH CHANDRA SHARMA & ORS.

DATE OF JUDGMENT:       15/03/2000

BENCH: S.S.Ahmad, D.P.Wadha

JUDGMENT:

     S.   SAGHIR AHMAD, J.  Leave granted.  Respondent  No. 1,  [hereinafter  referred  to as ‘Respondent’], who  was  a driver  in  the  U.P.    State  Road  Transport  Corporation (appellant),   was   charge-sheeted    on   16.8.1989    for disciplinary  proceedings.  Three charges were indicated  in the  charge-sheet.  The first charge related to his habitual absence  from  duty for the period June, 1988 to May,  1989, regarding  which  he also did not submit the  mileage  form. The  second  charge  was  that on 19th May,  1989,  when  he reached  Badaun  at  about 9 P.M.  with Bus  No.   8680,  he informed  the  Conductor,  Dinesh Kumar, that  the  bus  had developed  some defects and, therefore, he parked the bus in Badaun  workshop.  Dinesh Kumar, Conductor, went to sleep in another  bus,  but when he woke up in the morning  he  found that  the Bus was taken by Respondent to Bareilly, regarding which  an information was also given by Dinesh Kumar to  the Station Incharge, Badaun.  The Bus was also seen coming back from Bareilly.  It was noticed that in order to cover up his act  of  taking  the Bus to Bareilly, the Respondent  got  a remark  entered  in his duty form by Rampal,  Vulcanizer  of Badaun  Depot,  about the defect in the Bus.  The third  and last  charge  against the Respondent was that on  24th  May, 1980  at  about 8.30 PM, he, along with Shiv  Kumar  Sharma, Conductor, went to Ramesh Chandra, Assistant Cashier, in the cash room in a drunken state.  He demanded money from Ramesh Chandra  and when the latter refused, the Respondent  abused and  threatened to assault him, which was treated as an  act of  misconduct.  The charges were enquired into by Shri S.C. Jain,  a  retired District Judge, who was appointed  as  the Enquiry  Officer.  The Enquiry Officer submitted the  Report on  21st September, 1990, in which he found that the  charge about   habitual   absence  was   not  proved  against   the Respondent.   The other charge relating to taking the Bus to Bareilly  was  also not established, but it was  established that  he  had taken out the Bus unauthorisedly  from  Badaun workshop  to some place without taking the Conductor in  the Bus.   The  third  charge  of  misconduct  was  found  fully established.   Thereafter, a show cause notice was issued to the Respondent on 12th August, 1991, and by order dated 31st August, 1991, he was removed from service.  On an industrial dispute  being raised by Respondent, a reference was made on 31st  March, 1993 to the Labour Court for adjudication.  The Labour Court, by its award dated 6th December, 1996, came to the  conclusion that though the departmental enquiry did not suffer  from any infirmity, the punishment of ‘removal’  was excessive.   It consequently set aside the order of  removal and  substituted the punishment of removal by the punishment

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of  stoppage of one wage increment and payment of 50% of the back-wages.   The  award  was challenged  by  the  appellant before the High Court in a writ petition which was dismissed summarily  on  27th April, 1998.  Learned counsel  appearing for  the  appellant has contended that once it was found  by the  Labour  Court that the departmental  enquiry  conducted against the Respondent was proper and it did not suffer from any  infirmity, it was not open to it to interfere with  the quantum  of punishment.  It is contended that the High Court should  have,  on  that  ground, set  aside  the  award  and maintained   the  order  of   removal  passed  against   the Respondent.   Whether  it is open to Industrial Tribunal  or Labour Court or the High Court to interfere with the quantum of  punishment  is, no longer, res integra, as the  question has been answered by this Court several times in its various decisions.   In Union of India & Anr.  vs.  B.C.  Chaturvedi [1995]  6  SCC 750, a 3-Judge Bench of this Court  has  held that  Section  11-A  of the Industrial  Disputes  Act,  1947 confers  power on Industrial Tribunal/Labour Court to  apply its  mind  on  the question of proportion of  punishment  or penalty.   It was held that this power is also available  to High  Court under Article 226 of the Constitution, though it was  qualified with a limitation that while seized with this question  as a writ court, interference is permissible  only when  the punishment/penalty is shockingly disproportionate. Again,  a  3-Judge Bench of this Court in  Colour-Chem  Ltd. vs.  A.L.  Alaspurkar & Ors.  [1998] 3 SCC 192, relying upon an  earlier decision in Hind Construction & Engineering  Co. Ltd.  v.  Workmen AIR 1965 SC 917 = [1965] 2 SCR 85 = [1965] 1  LLJ  462, laid down as under :  "Consequently it must  be held that when looking to the nature of charge of even major misconduct  which  is  found  proved if  the  punishment  of dismissal  or  discharge as imposed is found to  be  grossly disproportionate  in  the  light  of   the  nature  of   the misconduct  or  the  past record of the  employee  concerned involved  in  the misconduct or is such which no  reasonable employer would ever impose in like circumstances, inflicting of  such  punishment  itself  could   be  treated  as  legal victimisation."  Section 11A of the Industrial Disputes  Act provides as under:- "11A.  Powers of Labour Court, Tribunals and National Tribunals to give appropriate relief in case of discharge  or  dismissal of workmen -- Where  an  industrial dispute  relating to the discharge or dismissal of a workman has  been  referred to a Labour Court, Tribunal or  National Tribunal  for  adjudication  and,  in   the  course  of  the adjudication  proceedings,  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:  Provided that in any proceeding  under this section the Labour Court, Tribunal or National  Tribunal,  as the case may be, shall rely only  on the material on record and shall not take any fresh evidence in  relation to the matter." This Section, as interpreted by this Court, no doubt, vests the Labour Court with discretion to  substitute  the  order of discharge or  dismissal  of  a workman  into  an order of 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.  In the present case,

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the  following industrial dispute was referred to the Labour Court  for  adjudication:  "Whether the termination  of  the service  of  their workman Sh.  Subhash Chandra  Sharma  S/o Shri  Nathimal,  driver  by  the   employer  by  order   dt. 31.08.1991  is proper and legal?  If not, what is the relief (with  details)  to which the workman is entitled  to?"  The Labour  Court, while upholding the third charge against  the respondent  nevertheless  interfered with the order  of  the appellant  removing  the respondent from the  service.   The charge against the respondent was that he, in drunken state, along  with a conductor went to the Assistant Cashier in the cash  room  of  the appellant and demanded  money  from  the Assistant  Cashier.  When the Assistant Cashier refused, the respondent abused him and threatened to assault him.  It was certainly  a  serious  charge  of  misconduct  against   the respondent.  In such circumstances, the Labour Court was not justified  in  interfering  with  the order  of  removal  of respondent  from  the  service when the charge  against  him stood  proved.  Rather we find that the discretion exercised by the Labour Court in the circumstances of the present case was  capricious  and arbitrary and certainly not  justified. It  could  not  be said that the punishment awarded  to  the respondent  was in any way "shockingly disproportionate"  to the  nature of the charge found proved against him.  In  our opinion,  the High Court failed to exercise its jurisdiction under  Article  226 of the Constitution and did not  correct the erroneous order of the Labour Court which, if allowed to stand,  would  certainly result in miscarriage  of  justice. We,  therefore,  allow  the appeal, set aside  the  impugned judgment  of the High Court and the award dated December  6, 1996 of the Labour Court.  There shall, however, be no order as to costs.