Important Point
In the case of even major misconduct 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.

Judgment

S.B. Majmudar, J.-The appellant-management by obtaining special leave to appeal under Article 136 of the Constitution of India has brought in challenge the order of the High Court of Bombay dated 13th Septem­ber 1991 dismissing the writ petition of the appellant and confirming the order of the Labour Court as further confirmed in revision by the Industrial Court, Bombay. By the impugned order respondent Nos. 3 and 4 herein who were workmen in the concern of the appellant were ordered to be reinstated in service with 40 and 50 back wages respectively till the date of the award of the Labour Court and thereafter with cent per cent back wages till reinstatement.

2. A few relevant facts leading to these proceedings are required to be noted to highlight the grievance of the appellant-management against the impugned order.

Background Facts

3. Respondent Nos. 3 and 4 were working in the plant of the appellant as Plant Operators. On the night between 5th and 6th May 1982 when they were on duty in the night shift at about 03.30 a.m. when the Plant In-charge one Shri Chandrahasan made a surprise visit, he found respondent Nos. 3 and 4 and 10 mazdoors as well as the Shift Supervi­sor sleeping though the machine was kept working. The Shift Supervisor was found sleeping in the cabin while respondent Nos. 3 and 4 opera­tors and 10 mazdoors were found sleeping on the terrace of the facto­ry. For the said misconduct a domestic enquiry was held, after charge­sheeting respondent Nos. 3 and 4 charge-sheets of even date were issued on 18th May 1982. After the domestic enquiry both these re­spondents by order dated 04th June 1983 were dismissed from service. Respondent Nos. 3 and 4 filed complaints before respondent No. 2 authority under the provisions of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as ‘the Act’). The contention of these complainants was that they were victimised and the appellant-management had committed diverse unfair practices as contemplated under Clauses (a), (b), (d), (f) and (g) of Item 1 of Schedule IV of the Act. The appellant con­tested these complaints. The Labour Court in the light of the evidence recorded came to the conclusion that the appellant-company had proved that the complainants had committed misconducts alleged against them as per the charge-sheets dated 18th May, 1982. It also held that the com­plainants failed to prove that they were dismissed by way of unfair labour practices covered by Clauses (a), (b), (d) and (f) of Item 1 of Schedule IV of the Act. However, it held that the appellant had com­mitted unfair labour practice as per Clause (g) of Item 1 of the said Schedule. Contention of the complainants that they were discriminated against was rejected. It was also found that the appellant failed to prove that the complainants were gainfully employed since their dis­missals on 04th June 1983. The Labour Court in short found that look­ing to the nature of the misconduct alleged and proved against the complainants the punishment of dismissal was grossly disproportionate and, therefore, it amounted to unfair labour practice on the part of the appellant as covered by Clause (g) of Item 1 of Schedule IV of the Act. As a result, the Labour Court passed an order of reinstatement with appropriate back wages, as seen earlier. The said order of the Labour Court resulted in two revisions, one on behalf of the workmen and another on behalf of the management. The revisional court namely, the Industrial Court dismissed both the revision applications and confirmed the order of the Labour Court. The appellant carried the matter in writ petition before the High Court which as noted earlier, came to be dismissed. That is how the appellant is before us.

4. We have heard learned senior counsel for the appellant as well as learned senior counsel for respondent Nos. 3 and 4 who are the only contesting parties, respondent Nos. 1 and 2 being the auth