Important point
The past record of service is a relevant factor for considering as to whether the punishment imposed upon the delinquent employee is shockingly disproportionate or not.

Headnote:Industrial Employment (Standing Orders) Act, 1946—Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971—Sections 26 and 27—Standing Order 24(1) of the Model Standing Order—Dismissal from service—Respondent was working as a helper in the services of appellant—At or about 11.40 a.m. while working in the first shift, he was found lying fast asleep on an iron plate at his working place—On three earlier occasions also, respondent was found guilty of misconduct but only some minor punishments had been imposed—Respondent filed a complaint of unfair labour practice against appellant—Labour Court held that domestic enquiry against respondent was fair and proper and finding recorded by enquiry officer was not perverse—It was held that punishment of dismissal imposed upon the employee was harsh and disproportionate—Labour Court directed appellant to reinstate respondent on his original post with continuity of service with 50 of back wages—No sufficient reasons assigned by the Labour Court as to why a lenient view should be taken—Whether order of reinstatement was justified—(No)—Quantum of punishment imposed upon respondent was not wholly disproportionate to his act of misconduct or otherwise arbitrary—There was failure on part of respondent to plead and prove acts of victimization.
Held : 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. (Para 25)
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. 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. (Paras 29 and 30)

Judgment

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.

2. 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.

3. 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 thereagainst 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 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.”

4. The Appellant is in Appeal before us questioning the aforementioned judgment.

5. Despite service of notice, nobody has appeared on behalf of the Respondent.

6. 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

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2005 Supreme(SC) 101

Important pointThe past record of service is a relevant factor for considering as to whether the punishment imposed upon the delinquent employee is shockingly disproportionate or not.

Cases Referred (6)

Important point
The past record of service is a relevant factor for considering as to whether the punishment imposed upon the delinquent employee is shockingly disproportionate or not.