1. Dismissal of permanent workmen for absence on a disputed holiday — Reference to Industrial Tribunal — Award ordering reinstatement on grounds of victimization. (Para 1 , 2 )
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1964 Supreme(SC) 299
SUPREME COURT OF INDIA
9th November, 1964
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO AND M. HIDAYATULLAH, JJ.
M/s. Hind Construction and Engineering Co., Ltd., Appellant
Versus
Their Workmen, Respondent.
Civil Appeal No. 970 of 1963.
Advocates appeared
Mr. M. C. Setalvad, Senior Advocate, (M/s. N. G. Shah and B. P. Maheshwari, Advocates, with him), for Appellant; M/s. D. L. Sen Gupta and Janardan Sharma Advocates, for Respondent.
Advocates:
B.P.MAHESHVARI, D.L.SEN GUPTA, JANARDAN SHARMA, M.C.SETALVAD, N.C.SHAH
B.P.MAHESHVARI, D.L.SEN GUPTA, JANARDAN SHARMA, M.C.SETALVAD, N.C.SHAH
A Labour Tribunal may interfere with the quantum of punishment imposed by an employer if the punishment is shockingly disproportionate to the misconduct or so unreasonable that no reasonable employer would impose it, as such severity indicates victimization or unfair labour practice.
Headnote:(A) Industrial Law - Punishment for Misconduct - Scope of Tribunal's Interference - It is settled law that a Tribunal is not to examine the finding or the quantum of punishment as the dispute is not open before the Tribunal as it would be in a court of appeal. The Tribunal can only interfere if the conduct of the employer shows lack of bona fides, victimization of employees, or unfair labour practice. While the Tribunal cannot substitute its own appraisal of evidence for that of the domestic enquiry officer, it may interfere in cases of basic errors on points of fact, perverse findings, or where principles of natural justice and fair play have not been followed. (Para 5)
(B) Quantum of Punishment - Shocking Disproportion - The award of punishment for misconduct under Standing Orders is generally a matter for management. However, where the punishment is shockingly disproportionate, regard being had to the particular conduct and past record, or is such that no reasonable employer would ever impose in like circumstances, the Tribunal may treat such imposition as victimization or unfair labour practice and may interfere. (Para 5)
Facts of the case:
An employer employed permanent and temporary workmen. A dispute arose regarding whether a specific day following a Sunday holiday was a working day or a holiday based on established practice. Eleven permanent workmen absented themselves on that day. Following an enquiry, the management dismissed eight of them and warned the remaining three. The Industrial Tribunal set aside the dismissals and ordered reinstatement with back wages, viewing the punishment as victimization for a one-day strike.
Findings of Court:
The court found that the punishment of dismissal for a one-day absence, especially given the established practice of holidays, was one that no reasonable employer would have imposed. The interference by the Tribunal was justified because the punishment was not only severe and out of proportion to the fault but was unreasonable to the extent of indicating victimization.
Issues: Whether the reference to the Tribunal was technically flawed because not all workmen were dismissed, and whether the Tribunal was justified in interfering with the punishment of dismissal for a one-day strike.
Ratio Decidendi: While Tribunals should not typically interfere with the severity of punishment, they are entitled to do so if the punishment is shockingly disproportionate or so unreasonable that no reasonable employer would have imposed it in similar circumstances, as such an action serves as evidence of victimization or unfair labour practice. (Para 5, 7)
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether the reference was technically flawed regarding the number of dismissed workmen — Whether the punishment of dismissal constituted victimization or unfair labour practice. (Para 4 , 6 )
3. The punishment of dismissal for a single day's absence over a holiday dispute was shockingly disproportionate and one no reasonable employer would impose. (Para 7 )
4. An Industrial Tribunal may interfere with punishment if it is shockingly disproportionate or such that no reasonable employer would impose it, indicating victimization. (Para 5 , 7 )
5. Appeal dismissed; award of the Industrial Tribunal upheld. (Para 8 )
6. When can an Industrial Tribunal interfere with the quantum of punishment imposed by an employer?
A Tribunal can interfere if the employer's conduct shows lack of bona fides, victimization, or unfair labour practice, or if the punishment is shockingly disproportionate and such that no reasonable employer would impose it in similar circumstances. (Para 5 )
7. Can a Tribunal substitute its own appraisal of evidence for that of a domestic enquiry officer?
No, the Tribunal cannot substitute its own appraisal of evidence for that of the enquiry officer, except where principles of natural justice were violated or the enquiry was so perverted as to amount to no enquiry. (Para 5 )
8. How is the proportionality of punishment evaluated to determine victimization?
If the punishment is severe and out of proportion to the fault—such that no reasonable employer would have imposed it—the court may treat the imposition as evidence of victimization or unfair labour practice. (Para 5 , 7 )
Judgment
HIDAYATULLAH, J. :- This is an appeal by special leave against the award of the Second Industrial Tribunal, West Bengal dated May 4, 1962 by which the Tribunal set aside the dismissal of eleven workmen employed by the appellant Company and ordered their reinstatement with all back wages except wages, for January 2, 1961.
2. The appellant Company carries on activity as engineers and contractors in different part of West Bengal. It had at Sukchar a store yard and at the relevant time it employed 30 workmen at Sukchar of whom 11 were permanent and the remaining temporary. We are concerned with the dismissal of the permanent workmen from January 2, 1961. According to the practice of the appellant Company fourteen days were holidays in each year. they included the lst of January. Whenever a holiday fell on a Sunday the usual practice was to make the following day a holiday and that is how the dispute arose over the 2nd of January which followed a Sunday in 1961. The case of the Union, in short, was that the eleven workmen did not attend work on 2nd of January treating it as a holiday while the cases of the appellant Company was that they had been expressly told that owing to pressure of work 2nd January was to be a working day and a holiday in lieu would be given on another subsequent day. In view of their absence they were given a chargesheet and after enquiry, were ordered to be dismissed. Before the enquiry they were placed under suspension and at the instance of the Union a reference was made to the Labour Officer for conciliation. The conciliation failed because the appellant Company did not appear. A reference, was trade to the Labour Tribunal by the Government of West Bengal on April 21,1961 of the following issue :
"Whether the dismissal of the following workmen is justified; what relief if any, they are entitled to, and * * * * * *
(here followed the 11 names)".
The Tribunal by its award held that there was no lock out or lay off by the employer as was pleaded on behalf of the Union and that the 11 workmen had gone on a strike but it was not illegal and that the punishment of dismissal for this strike must be treated as victimization of the employees and was quite unjustified both in severity and in relation to the strike for one day. The order setting aside their dismissal and reinstating them was passed.
3. It may be pointed out that the Enquiry officer recommended the dismissal of only 8 of these workmen. In regard to the remaining 3, benefit of the doubt was given for their absence on grounds which may now be mentioned. One Quigly, who was a Christian, was excused with a warning and deprivation of wages for 2nd January on the ground that he had informed the Works Manager that he would be unable to attend to his duties on 2nd January. One J. C. Bose was excused because he had joined on the 3 1st December after absence and was not in a position to know that the 2nd January was not declared a holiday. He was also warned and his absence was adjusted against leave due to him. Lastly, one A. K. Sarkar who was on leave till the 31st of December was excused because he was informed by Quigly that 2nd January would be a holiday. He was also warned and his absence was to be treated as leave with or without pay depending upon leave to his credit. These three persons were ordered to join duty but they did not as the Union was of opinion that the original dispute was still pending for conciliation and till the dispute was settled they could not join.
4. The appellant Company contends that the reference is bad because it refere to 11 workmen as "dismissed" when only 8 were so treated. Technically this is correct but we do not think that we should interfere with the award on this ground alone. All workmen were charged together and their defence more or less was that the day following the 1st of January was to be a holiday in accordance with the established practice, though three of them raised additional defence when asked to file
