Back
2017 Supreme(Bom) 1588
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
M/s. Empire Dyeing - Petitioner
Versus
Sandesh Vasudeo Kusam & Others - Respondents
Writ Petition No. 730 of 2004
Decided On : 10-10-2017
Advocate Appeared:
For the Petitioner: K.M. Naik, S.P. Salkar, Hemant Tekay, Janki Kadam
For the Respondents: Shobana Gopal
An employer has the right to inflict a lesser punishment of discharge upon an employee instead of dismissal, even if the misconduct committed by the employee warrants dismissal, provided that the punishment is not outside the purview of the Standing Orders.
Headnote:
INDUSTRIAL DISPUTE - DISMISSAL - STANDING ORDERS - DISCHARGE - LESSER PUNISHMENT - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 - BOMBAY INDUSTRIAL RELATIONS ACT, 1946 - MAHARASHTRA RECOGNITION OF TRADE UNIONS AND PREVENTION OF UNFAIR LABOUR PRACTICES ACT, 1971 - Where the employer had inflicted a lesser punishment of discharge upon the employees instead of dismissal, the Labour Court and the Industrial Court erred in declaring the decision of the employer as illegal on the basis of the said punishment following outside the provisions of the Standing Orders.
Fact of the Case:
The petitioner, a company, dismissed two of its employees for misconduct. The employees challenged the dismissal before the Labour Court, which allowed their applications and directed the petitioner to reinstate them with full back wages. The petitioner appealed to the Industrial Court, which dismissed the appeal. The petitioner then filed a writ petition in the High Court.
Finding of the Court:
The High Court held that the Labour Court and the Industrial Court erred in declaring the decision of the employer as illegal on the basis of the said punishment following outside the provisions of the Standing Orders. The Court held that the employer had the right to inflict a lesser punishment of discharge upon the employees instead of dismissal, and that the punishment was not outside the purview of the Standing Orders. The Court also held that the Labour Court and the Industrial Court ought to have considered the legality and propriety of the punishment inflicted by the petitioner before declaring the action of the petitioner as bad and illegal.
Issues: 1. Whether the Labour Court and the Industrial Court erred in declaring the decision of the employer as illegal on the basis of the said punishment following outside the provisions of the Standing Orders? 2. Whether the employer had the right to inflict a lesser punishment of discharge upon the employees instead of dismissal? 3. Whether the punishment was outside the purview of the Standing Orders? 4. Whether the Labour Court and the Industrial Court ought to have considered the legality and propriety of the punishment inflicted by the petitioner before declaring the action of the petitioner as bad and illegal?
Ratio Decidendi: 1. The Labour Court and the Industrial Court erred in declaring the decision of the employer as illegal on the basis of the said punishment following outside the provisions of the Standing Orders. 2. The employer had the right to inflict a lesser punishment of discharge upon the employees instead of dismissal. 3. The punishment was not outside the purview of the Standing Orders. 4. The Labour Court and the Industrial Court ought to have considered the legality and propriety of the punishment inflicted by the petitioner before declaring the action of the petitioner as bad and illegal.
Final Decision: The High Court set aside the orders of the Labour Court and the Industrial Court and remanded the matter back to the Labour Court for a fresh decision on the issue of the legality and propriety of the punishment inflicted by the petitioner.
1. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks writ of certiorari or any other appropriate writ, order or direction in the nature of writ of certiorari and has impugned the common judgment dated 2nd February, 2002 passed in the Application (BIR) Nos.81 of 1995 and 82 of 1995 by the Labour Court and also has impugned the judgment and order dated 9th February, 2004 passed by the learned Industrial Court in Appeal (IC) 50 of 2002, allowing the applications filed by the predecessor of the respondent no.1 and the application of the respondent no.2 (hereinafter referred as the said employees) and dismissing the appeal filed by the petitioner by the Labour Court and the Industrial Court respectively. Some of the relevant facts for the purpose of deciding this petition are as under:
2. The original respondent no.1 had joined the employment of the petitioner on 5th December, 1964. The respondent no.2 had joined the employment of the petitioner some time in the year 1973.
3. It is the case of the petitioner that on 10th March, 1993, the security officer and the supervisor while taking a round in the factory premises of the petitioner observed that the said employees were consuming hard liquor in the loft of Cotton Finishing Department near the Famatax No.1. The security officer took charge of one bottle of DSP whisky as also two glasses containing whisky which was being consumed by them and handed over the same to the supervisor Mr. Indersen Singh. The said employees also arrogantly replied when they were directed to come down from the loft of Cotton Finishing Department. By a letter dated 10th March, 1993 issued by the petitioner, the said employees were suspended pending enquiry. The said employees were thereafter issued charge-sheets both dated 13th March, 1993. The following charges were levelled:
a. Drinking hard liquor during working hours inside the factory of Empire Dyeing;
b. Riotous, disorderly and indecent behaviour during working hours on the premises of Empire Dyeing;
c. Threatening Security staff of Empire Dyeing without any provocation;
d. Commission of any acts subversive of discipline or good behaviour on the premises of the Empire Dying.
4. The petitioner thereafter appointed an Enquiry Officer. The said employees were represented at the enquiry by the Vice President of Maharashtra General Kamgar Union. The enquiry was concluded on 19th April, 1995. The Enquiry Officer submitted his report and the findings dated 13th May, 1995 holding that the said employees were guilty of charges levelled against them in the charge-sheets.
5. It is the case of the petitioner that considering the seriousness of the charges proved against the said employees at the enquiry, the petitioner decided to dismiss them from service of the petitioner. However, while deciding the punishment to be imposed, the petitioner also considered their past service record and it was found that there were no aggravating circumstances against the said employees. The petitioner therefore with a view to give the benefits of one month's notice pay to those employees, decided to use the terminology “discharge” rather than dismissal without notice.
6. The petitioner accordingly issued a letter dated 30th May, 1995 recording charges alleged in the charge-sheets, the enquiry report holding them guilty of the charges contained in the chargesheets and informing that the petitioner had concurred with the findings of the Enquiry Officer. It was mentioned that taking into consideration the seriousness of the misconduct committed by those employees, the petitioner had been justified in dismissing them from the employment of the company. The petitioner however, had also looked into their past records to find any extenuating circumstances and found none. The petitioner informed that taking into consideration the length of service, the petitioner had decided to take a lenient view in the matter and decided to discharge them fr
