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2005(2) Supreme 140
Supreme Court of India
(From Bombay High Court)
N. Santosh Hegde, Tarun Chatterjee & P.K. Balasubramanyan, JJ.
Mahindra and Mahindra Ltd. —Appellant
versus
N.B. Naravade etc. —Respondent
Civil Appeal No. 1508 of 2003
With
Civil Appeal No. 1507 of 2003
Decided on 22-2-2005
Counsel for the Parties :
For the Appellant in C.A.No. 1507/2003 and Respondent in C.A.No. 1508/2003 : Dushyant A. Dave, Sr. Advocate, R.N. Shah, Prabhjit Jauhar, Vishwajit Singh, Advocates.
For the Respondent in C.A.No. 1507/2003 and Appellant in C.A.No. 1508/2003 : Markand D. Adkar, S.D. Singh, Vijay Kumar and S.S. Jauhar, Advocates.
Held : It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the labour court/Industrial Tribunal in interfering with the quantum of punishment awarded by the Management where the concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which requires the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court can not by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed herein above atleast in two of the cases cited before us, i.e. Orissa Cement Ltd. (supra) and New Shorrock Mills (supra), this Court held: “punishment of dismissal for using of abusive language cannot be held to be disproportionate”. In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to herein above. (Para 20)
We may also note here that the learned counsel for the appellant has pointed out from the records that the workman was charge-sheeted more than once on earlier occasions and inspite of the gravity of the offence he was dealt with leniently. He pointed out that in one such earlier instance this workman had assaulted his co-worker with a galvanized pipe causing grievous injury, even then he was punished with 4 days suspension only which according to the learned counsel clearly shows that the Management- appellant is not being vindictive. Taking into consideration the over all fact situation and the law laid down by this court and inspite of the fact that three courts have concurrently come to the conclusion that the punishment of dismissal would be disproportionate to the misconduct, we will have to disagree with those findings. (Paras 22 and 23)
Judgment
Santosh Hegde, J.—This appeal is preferred against an order dated 23.8.2002 passed by the Division Bench of the High Court of Judicature at Bombay dismissing an appeal filed by the Management against an order of the learned Single Judge who in turn had confirmed the award of the labour court which while upholding the finding of the domestic inquiry that the respondent workman herein had committed the misconduct charged against him interfered with the quantum of punishment awarded to him still chose to alter the punishment of dismissal of one of reinstatement with continuity of service and 2/3rd back wages w.e.f. 5.3.1993.
2. The basic facts necessary for the disposal of this appeal are as follows:
It is stated by the appellant-Management that the respondent-workman was initially appointed by it on temporary basis from May, 1978 and was made permanent on 9.8.1981 and was designated as a fitter in the Chassis Assembly Department of the appellant industry. With reference to an incident which took place on 7.11.1991 wherein it is alleged that the respondent - workman used abusive and filthy language against his supervisor, an inquiry was instituted against the said workman and the Inquiry Officer after considering the material produced in the proceedings before him found him guilty of misconduct and recommended his dismissal and based on such recommendation service of the respondent was terminated by the disciplinary authority on 5.3.1991.
3. At the instance of the workman a reference was made for adjudication of the dispute to the labour court. The labour court by its order dated 5.9.1996 held that the charge-sheet issued to the respondent-workman was vague. Hence, the Management issued a fresh charge-sheet and initiated a fresh inquiry in which both the parties led evidence and the Inquiry Officer on consideration of such evidence once again came to the conclusion that the alleged misconduct was proved and the said misconduct attracted a punishment of dismissal under the standing orders of the Management, accordingly proposed his dismissal which was accepted by the disciplinary authority and the respondent-workman was dismissed from the service.
4. In the second round before the labour court, the said court after considering the evidence that was brought on record, specifically came to the conclusion that from the evidence of witnesses of the company it is clear that the respondent-workman had abused his superior on 22nd November, 1991 in filthy language without any provocation. It also held that the said respondent-workman did not bring any cogent evidence on record in his favour that he did not commit any misconduct. However, in regard to punishment of dismissal imposed on the respondent-workman the labour court came to the conclusion that the same was harsh and improper hence, deserved to be set aside and substituted the said punishment by directing the respondent’s reinstatement with continuity of service but with 2/3rd back wages w.e.f. 5.3.1993.
5. Being aggrieved by the said modification of the punishment the appellant herein preferred a writ petition before the learned Single Judge of the High Court of Bombay. The learned Single Judge in the said writ petition by a short order dismissed the same. The said order of the learned Single Judge reads as follows:
“The labour court has exercised its jurisdiction under Section 11A of the I.D. Act. It has given its own reasons and he is right in observing that denial of 1/3 back wages for the intervening period from 5.3.93 till 13.3.2001 would be good punishment of the allegations proved before the Court. It would act as deterrent and reformative. He has learnt the cost of the abusive words used by him. He will not get 1/3 wages for the whole intervening period. In my opinion there is no illegality or infirmity in the exercise of the jurisdiction under Section 11-A of the Act to warrant any interference by this Court under Article 226 of the Constitution of India. There is no
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