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CASE NO.:

Appeal (civil) 4399 of 2002

PETITIONER:

Bharat Forge Co. Ltd.

RESPONDENT:

Uttam Manohar Nakate

DATE OF JUDGMENT: 18/01/2005

BENCH:

N.S. Hegde & S.B. Sinha

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

The Respondent herein at all material times was working as a helper

in the services of the Appellant. At or about 11.40 a.m., on 26.8.1983

while working in the first shift, he was found lying fast asleep on an iron

plate at his working place, whereupon a disciplinary proceeding was

initiated against him in terms of Standing Order 24(1) of the Model

Standing Order framed under the Industrial Employment (Standing Orders)

Act, 1946. In the said domestic enquiry he was found guilty whereupon by

order dated 17.1.1984 he was dismissed him from his services. It is not in

dispute that on three earlier occasions also, the Respondent was found guilty

of misconduct; but only some minor punishments had been imposed.

Questioning the said order of dismissal dated 17.1.1984, the Respondent

herein filed a complaint of unfair labour practice as specified under Item

1(a), (b), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of

Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for

short 'the Act) against the Appellant herein before the Labour Court, Pune.

In the said proceeding, two preliminary issues were framed, namely,

(i) whether the enquiry was proper; and (ii) is the finding recorded by the

enquiry officer perverse. The Labour Court by its order dated 21.5.1985

held that the domestic enquiry against the Respondent was fair and proper

and the finding recorded by the enquiry officer was not perverse. He

thereafter proceeded with the case on merits and in terms of its order dated

31.7.1985, the Labour Court held that the punishment of dismissal imposed

upon the employee was harsh and disproportionate and no reasonable

employer could impose such punishment for the proved misconduct.

Consequently, the Appellant herein was directed to reinstate the Respondent

on his original post with continuity of service with 50% of the back-wages

for the period from 23.12.1983 till his reinstatement.

Aggrieved by and dissatisfied therewith both the parties herein

preferred separate Revision Applications before the Industrial Tribunal. By

a common judgment dated 12.6.1987, the Revision Application filed by the

Appellant was allowed and that of the Respondent was dismissed. The

Respondent thereupon filed a Writ Petition before the Bombay High Court

and by reason of a judgment and order dated 9.2.1995, the said Writ Petition

was dismissed by a learned Single Judge. A Letters Patent Appeal there-

against was filed by the Respondent herein which by reason of the impugned

judgment was allowed directing :

"i) the judgment of the learned Single Judge dated 9th

February 1995 and the order of the Industrial Court

dated 12th June 1987 are quashed and set aside.

ii) The order passed by the second labour court dated

31st July 1985 is modified by directing the

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employer to pay a sum of Rs.2,50,000/- to the

employee within one month from today. In the

event of failure to pay the said amount to the

employee within one month from today, the

employer shall be liable to pay interest at the rate

of 9 per cent per annum from today till such

payment is made."

The Appellant is in Appeal before us questioning the aforementioned

judgment.

Despite service of notice, nobody has appeared on behalf of the

Respondent.

Mr. M.D. Adkar, learned counsel appearing on behalf of the

Appellant, assailing the judgment of the Division Bench of the High

Court, brought to our notice that in the domestic enquiry the Respondent

herein took several adjournments and on the sixth day of hearing he went out

of the room stating that he would come back for filing a medical certificate

in support of his plea of adjourning the matter but did not come back;

whereupon the domestic enquiry was held ex parte. The learned counsel

would contend that the Respondent has accepted his misconduct and

furthermore materials have been brought on records to prove that he had

committed misconduct earlier also and in that view of the matter, the

Division Bench of the High Court went wrong in passing the impugned

judgment. It was pointed out that as regard purported commission of unfair

labour practice, the concerned workman prevaricated his stand from court to

court inasmuch as whereas before the Industrial Court he invoked clause (g)

of Item (1) of Schedule IV of the Act; before the learned Single Judge, he

invoked clause (b) of Item (1) thereof but the Division Bench of the High

Court proceeded to pass the impugned judgment by invoking clause (a),

although no foundational fact was pleaded in support thereof. Reliance

placed by the High Court on Colour-Chem Ltd. vs. A.L. Alaspurkar and

Others [(1998) 3 SCC 192], Mr. Adkar would urge, was misplaced as the

said decision was rendered in the peculiar factual matrix obtaining therein.

The learned counsel placing reliance on Messrs Bharat Iron Works

vs. Bhagubhai Balubhai Patel and Others [(1976) 1 SCC 518] would submit

that in a case of proved misconduct, the question of victimization does not

arise.

The said Act was enacted to provide for the recognition of trade

unions for facilitating collective bargaining for certain undertakings; to state

their rights and obligations; to confer certain powers on unrecognized

unions; to provide for declaring certain strikes and lock-outs as illegal strikes

and lock-outs; to define and provide for the prevention of certain unfair

labour practices; to constitute courts (as independent machinery) for carrying

out the purposes of according recognition to trade unions and for enforcing

the provisions relating to unfair practices; and to provide for matters

connected with the purposes aforesaid. Section 26 of the Act defines

'unfair labour practices' to mean any of the practices listed in Schedules II,

III and IV appended thereto. Schedule IV of the Act specifies general unfair

labour practices on the part of the employers, the relevant clauses whereof

are as under :

"1. To discharge or dismiss employee \026

(a) by way of victimization;

(b) not in good faith, but in colourable exercise of

employer's right;

(g) for misconduct of a minor or technical

character, without having any regard to the nature

of the particular misconduct or the past record of

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service of the employee, so as to amount to a

shockingly disproportionate punishment;"

Section 27 of the Act provides that, inter alia, no employer shall

engage in any unfair labour practice. Section 28 provides for dealing with

complaints relating to unfair labour practices. The court upon receipt of a

complaint is invested with power to cause an investigation to be made and

on submissions of report by the Investigation Officer and in the event no

settlement is arrived at during investigation, the court may proceed to

consider the complaint and give its decision. Section 59 of the Act bars

proceedings under the Bombay or Central Act.

The jurisdiction of a Labour Court was, therefore, confined to make

an enquiry and pass an order thereupon as to whether the Appellant herein

had committed an act of unfair labour practice within the meaning of Section

26 read with the relevant provisions of Item 1 of Schedule IV of the Act.

Before we proceed to determine the merit of the decision rendered by

the Division Bench, it is useful to notice that the act of misconduct

committed by the Respondent was admitted by him in terms of his letter

dated 26.8.1983 stating :

"I, Uttam Manohar Nakate, No.3638, age 37, being

present give statement such as :-

I have been working with Bharat Forge Company

for 14 years. Earlier I used to work in Cranckshop for last

6 years. I have been working in Production Development

Department.

From 28.8.1983 I have been working first shift and

I have been regular in first shift. Today on 26.8.1983 I

came to work at 7:00 and as usual I was working. At

about 11:15 to 11:30 I suffered stomach ache while

pushing trolly. I told my partner Mr. A.G. Mistry that I

would take some rest and accordingly I slept on the iron

plate. At about 11:40 security officer Shri Dashputre and

Shri Kelkar woke me up. Our supervisor Mr. Narkar was

there. I did not ask permission from Mr. Narkar.

Secondly our lunch interval was about to start and

therefore, I was to work in the lunch interval therefore, I

took rest before hand.

Only because I suffered ache I took rest. Please

forgive for one time.

I read my statement and I state that it is correct."

It is also pertinent to note that the Enquiry Officer in his report

categorically stated as to how the Respondent had been conducting himself

during the domestic enquiry proceeding observing :

"On 24.9.1983 Mr. Nakate sent an application

along with Private Doctor's certificate submitting that he

was sick as well as he was mentally disturbed. On this

application I wrote the next date of enquiry as 25.9.1983.

On 25.9.1983, Mr. Nakate was present and submitted that

he was not feeling well therefore he was unable to attend

the enquiry. When I asked him he told me that he had

not come for attending the enquiry. The certificate was

in his vehicle and he had come only for asking the

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adjournment. Mr. Sagade submitted that though Mr.

Nakate is covered under ESI Scheme I have accepted the

Private Doctor's certificate at Ex. 7. Mr. Nakate should

have brought ESI Doctor's certificate for his sickness.

The company does not accept the Private Doctor's

certificate. Considering the sequence of the incidence

Mr. Sagade further stated that Mr. Nakate was

deliberately advancing some or the other reasons to

dodge the enquiry. He further stated that if Mr. Nakate

was not feeling well he could have sent ESI certificate

for his sickness on 24.9.1983 onwards. However he has

done so. I directed Mr. Nakate to go and get the

certificate which according to him was in his vehicle.

Accordingly Mr. Nakate went out of cabin. After about

10-15 minutes he came back and submitted an

application at Ex. 8 stating that as he was mentally

disturbed and he was not feeling well the enquiry be

adjourned for 8 days. I again and again questioned him

about the certificate for which he had gone. Mr. Nakate

did not give me any reply regarding the certificate. He

was again and again saying only one thing that he should

be given time. Because of this I came to the conclusion

that no certificate was kept in the vehicle of Mr. Nakate

and the reason mental disturbance advanced by Mr.

Nakate was only to avoid the enquiry. Therefore, I

rejected the application for the adjournment . Therefore,

I asked Mr. Nakate about his representative. Mr. Nakate

submitted that his representative was waiting at the Gate

No.1 of the Company. I directed Mr. Sagade to send for

Mr. Salvi who was standing at the Gate No.1. Mr.

Nakate in the meantime told me that the enquiry papers

are with Mr. Salvi. Mr. Kelkar the Security Officer

submitted his report at Ex.9 that there is no person by

name Mr. Datta Salvi at gate No.1. I once again asked

Mr. Nakate about his representative and instead of reply

he started saying that he had severe stomach-ache and

stated that he was not willing to say anything and asked

for adjournment. I rejected this request also as since

beginning of enquiry on 25.9.1983 Mr. Nakate was

deliberately advancing one after another false reasons to

get the adjournment. I specifically told Mr. Nakate that

the enquiry would be conducted ex parte if he does not

participate. Mr. Nakate left the place of enquiry without

saying anything. I therefore decided to conduct the

enquiry ex parte and directed Mr. Sagade to adduce the

evidence on behalf of the company."

The Labour Court, as noticed hereinbefore, in its order dated

21.5.1985 held that the enquiry was proper and the finding of the Enquiry

Officer was not perverse. The learned Labour Court, however, in its order

dated 31.7.1985 passed an order of reinstatement with 50% back-wages

holding :

"\005Obviously, this lapse on his part does not show

that at any point of time he indulged in gross misconduct

which affected adversely to the interest of the respondent

company. In the case at hand, the charges regarding

sleeping during duty hours, no doubt, appear to be grave

and serious nature and such sort of tendencies cannot be

appreciated and they deserve to be curbed with heavy

hands. If such misconducts are viewed with leniency, it

will have adverse effect on the peace and tranquility of

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the peaceful functioning of the company, but, in the

instant case, we cannot adopt this harsh view. It is

because the length of service of the complainant is of

longer period of 10 years and for one lapse of this nature

it is not proper to sack him from the services. I think,

therefore, by imposing lesser punishment it would be

better if one more chance is given to him to serve the

respondent company. Viewed from this angle, I think,

the punishment of removal imposed upon him by the

respondent is absolutely harsh and disproportionate and

no any reasonable employer would impose such

punishment in such circumstances."

No sufficient or cogent reason, in our opinion, was assigned by the

learned Labour Court as to why a lenient view should be taken. The

Revisional Court while allowing the Revision Application of the Appellant

and dismissing the Revision Application of the Respondent came to the

conclusion that as the misconduct has been proved and relying on the

decision of this Court in Bhagubhai Balubhai Patel (supra) where it was

opined that a proved misconduct is anti thesis of victimization in the

industrial relations; held :

"\005Therefore, in granting the relief of reduction of the

nature of punishment, the learned judge of the Labour

Court exceeded his jurisdiction and committed an error,

apparent on the face of the record.. In any event, since

the learned Labour Judge has found that the misconduct

of sleeping during duty hours, was grave and serious, and

such tendencies deserved to be curbed with heavy hands

and since he had accepted the position of the past record

of the Respondent, the length of ten years of his service,

hardly constituted any mitigating circumstances. In fact,

the Respondent had been given sufficient opportunity to

improve himself. In these circumstances, the learned

Labour Judge was wholly unjustified in interfering with

the punishment. It is material to note that he has no

where found that the punishment was shockingly

disproportionate."

The said order of the Revisional Authority was upheld by the learned

Single Judge of the High Court stating :

"\005That sleeping in duty is a serious misconduct, which

ought not to be overlooked and showing leniency in such

a matter was likely to have a deleterious effect on

discipline in the factory, are findings which the Labour

Court has itself arrived at. As to quantum of punishment,

the First Respondent-employer was required to consider

the past record and other attendant circumstances. The

past record had two aspects, its length of 10 years and it

is being dotted with previous actions for misconduct. To

over emphasis the length of the service to the detriment

of previous disciplinary action, is discounting quality as

against quantity."

The Division Bench of the High Court also found commission of

major misconduct on the part of the Respondent but proceeded to examine

the question as to whether despite such proved misconduct the punishment

awarded by the employer on him was grossly disproportionate and would

be an unfair labour practice being an instance of legal victimization under

clause (1) of Item 1 of Schedule IV of the Act. Relying on or on the basis of

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Colour-Chem Ltd. (supra), the Division Bench held :

"\005The question that arises for our consideration is

whether looking to the nature of the proved charge that

the employee was found sleeping during duty hours and

was awakened by the security officer, can it be said that

the punishment of dismissal is shockingly or grossly

disproportionate. If the answer is in affirmative

obviously, such punishment could be treated as legal

victimization and employer would be guilty of having

engaged in an unfair labour practice under clause (a) of

Item 1 of Schedule IV\005"

Upon taking into consideration the gravity of past misconduct, it was

observed :

"\005We find that looking to the nature of the charge, i.e.

the employee was found sleeping during duty hours, the

employee could not have been inflicted with the

punishment of dismissal. The past record which has been

referred to hereinabove and the misconduct proved did

not justify the punishment of dismissal as no reasonable

employer would ever impose the punishment of dismissal

in such circumstances\005"

The Division Bench, however, in stead and place of passing an order

of reinstatement upon taking into consideration the fact that he was out of

the job for about 15 years and hardly 5-6 years' job is left, directed payment

of a sum of Rs.2,50,000/- to the Respondent.

Colour-Chem Ltd. (supra) whereupon strong reliance has been placed

by the Division Bench of the High Court is an authority for the proposition

that Clause (g) of Item 1 of Schedule IV of the Act is relatable to a minor or

technical misconduct which in a given set of cases may amount to resulting

in a shockingly disproportionate punishment if they are followed by

discharge or dismissal of the delinquent. This Court therein, however,

referring to dictionary meaning observed that the term "victimization" is of

comprehensive import. It may be victimization in fact or in law. As regard

factual victimization it was observed that it may consist of diverse acts of

employers who are out to drive out and punish an employee for no real

reason and for extraneous reasons. It further proceeded to observed :

"\005There can be in addition legal victimization and it is

this type of victimization which is contemplated by the

decision of this Court in Hind Construction (1965) 2 SCR

85. It must, therefore, be held that if the punishment of

dismissal or discharge is found shockingly

disproportionate by the Court regard being had to be the

particular major misconduct and the past service record

of the delinquent or is such as no reasonable employer

could every impose in like circumstances, it would be

unfair labour practice by itself being an instance of

victimization, in law or legal victimization independent

of factual victimization, if any. Such an unfair labour

practice is covered by the present Act by enactment of

clause (a) of Item 1 of Schedule IV of the Act as it would

be an act of victimization in law as clearly ruled by this

Court in the aforesaid decision\005"

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In that case the Respondents therein were punished although ten other

mazdoors who were also found to be sleeping were let off. This Court

noticed that the Respondents therein were although assigned more

responsible duties as compared to the mazdoors but in the background of the

surrounding circumstances and especially in the light of their past service

record there was no escape from the conclusion that the punishment of

dismissal imposed on them for such misconduct was grossly and shockingly

disproportionate.

Cholour-Chem Ltd. (supra) was, thus, rendered in the fact situation

obtaining therein. It is not an authority for the proposition that in a case

where an employee is found to be sleeping during working hours, imposition

of punishment of dismissal, despite his past bad records must be held to be

disproportionate to the act of misconduct.

In the instant case although victimization has been taken to be a

ground of complaint, no factual foundation therefor was laid and it was

confined to quoting only the legal provisions. No plea of legal victimization

was also taken in the complaint petition.

A bench of this Court in U.P. State Road Transport Corporation vs.

Mohan Lal Gupta and Others [(2000) 9 SCC 521], opined :

"The learned advocate appearing in support of the

appeal mainly contended on two counts. On the first, it

has been very strenuously contended as to whether the

Labour Court can alter the punishment awarded to

Respondent 1 workman upon recording a finding that the

charges have duly been proved and secondly, it has been

contended as to whether the employee who has

admittedly misappropriated the property of the employer

Corporation can be allowed to be retained in service.

These two issues are undoubtedly of some

importance. The workman concerned during the course

of inquiry in no uncertain terms admitted his guilt though

however he has stated that the same amounted to mere

negligence and not a deliberate act. But the Labour

Court being the fact finding court came to the conclusion

that the charges stood proved and we are not in a position

to reassess the factual situation at this stage of the

proceedings under Article 136 of the Constitution. The

finding as regards the proof of charges shall have to be

taken as accepted and we do not see any perversity

therein having regard to the state of facts more so by

reason of acceptance of charge by the delinquent

employee."

Yet again in U.P. State Road Transport Corpn. Vs. Subhash Chandra

Sharma and Others [(2000) 3 SCC 324], upon noticing Colour-Chem Ltd.

(supra), this Court observed :

"The charge against the respondent was that he, in

a drunken state, along with the 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 the 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

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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 a miscarriage of justice."

Each case, therefore, has to be decided on its own facts.

We have noticed hereinbefore that all the courts have answered the

question as regard commission of misconduct by the Respondent in one

voice. The Labour Court evidently had taken recourse to Clause (g) of Item

1 of Schedule IV of the Act which ex facie was inapplicable. The said

provision clearly postulates two situations, namely, (i) the misconduct

should be of minor or technical character; and (ii) the punishment is a

shockingly disproportionate without having any regard to the nature of the

particular misconduct or the past record of service of the employee. The

past record of service, therefore, is a relevant factor for considering as to

whether the punishment imposed upon the delinquent employee is

shockingly disproportionate or not. As has been noticed hereinbefore,

before the learned Single Judge an attempt on the part of the Respondent to

take recourse to Clause (b) of Item (1) of Schedule IV failed. In absence of

any plea of factual victimization and furthermore in absence of any

foundational fact having been laid down for arriving at a conclusion of the

legal victimization, in our opinion, the Division Bench committed a manifest

error in invoking Clause (a) thereof.

The Division Bench, thus, was not correct in relying on Colour-Chem

Ltd. (supra) and failed to notice the distinguishing features thereof. A

decision, as is well-known, is an authority of what it decides and not what

can logically be deduced therefrom. [See Cement Corporation of India Ltd.

vs. Purya and Others [(2004) 8 SCC 270]

In Bhagubhai Balubhai Patel (supra), this Court observed :

"\005In such a case the employee, found guilty, cannot be

equated with a victim or a scapegoat and the plea of

victimization as a defence will fall flat. This is why

once, in the opinion of the tribunal a gross misconduct is

established, as required, on legal evidence either in a

fairly conducted domestic enquiry or before the tribunal

on merits, the plea of victimization will not carry the case

of the employee any further. A proved misconduct is

antithesis of victimization as understood in industrial

relations. This is not to say that the tribunal has no

jurisdiction to interfere with an order of dismissal on

proof of victimization."

It was, therefore, obligatory on the part of the Respondent to plead

and prove the acts of victimization. He failed to do so.

Furthermore, it is trite, the Labour Court or the Industrial Tribunal, as

the case may be, in terms of the provisions of the Act, must act within the

four-corner thereof. The Industrial Courts would not sit in appeal over the

decision of the employer unless there exists a statutory provision in this

behalf. Although its jurisdiction is wide but the same must be applied in

terms of the provisions of the statute and no other.

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If the punishment is harsh, albeit a lesser punishment may be

imposed, but such an order cannot be passed on an irrational or extraneous

factor and certainly not on a compassionate ground.

In Regional Manager, Rajasthan State Road Transport Corporation vs.

Sohan Lal [(2004) 8 SCC 218], it has been held that it is not the normal

jurisdiction of the superior courts to interfere with the quantum of sentence

unless it is wholly disproportionate to the misconduct proved. Such is not

the case herein. In the facts and circumstances of the case and having regard

to the past conduct of the Respondent as also his conduct during the

domestic enquiry proceeding, we cannot say that the quantum of punishment

imposed upon the Respondent was wholly disproportionate to his act of

misconduct or otherwise arbitrary.

For the reasons aforementioned, the impugned judgment cannot be

sustained, which is set aside accordingly. The Appeal is allowed. However,

there shall be no order as to costs.