In re: M/s. Printers' Emporium v. . — 1982 DIGILAW 243 (CAL)

JUDGMENT The judgment of the Court was as follows :–– This writ petition is heard as a contested application and is moved with notice to the respondents and Mr. Sen Gupta has appeared for the respondent No.4. This petition is directed against an Award dated May 28, 1981 passed by the learned Judge, Second Labour Court, West Bengal, in Reference Case No. 1665-IR/IR/I3L-31/77 dated June 12, 1981. It appears that the respondent No. 4 was an employee of the petitioner No. 1, firm and a charge-sheet was framed against the said employee on 9th December, 1975 to the following effect :–– 1. Causing threat and insultation to the superior officer. 2. Refusal to carry out the order of the management. 3. Causing an act inconsistent with the fulfilment of express or implied condition of service or directly linked with the employer's/employee relationship or contentment of comfort of the men at work or smooth running of the administration. It appears that an enquiring officer was also appointed for the purpose of holding a domestic enquiry into the said charges and besides the Manager of the said firm, two other employees were examined before the enquiring officer. It may be noted that the said employee did not appear before the enquiring officer. The enquiring officer, thereafter, submitted a report holding, inter alia, that the charges had been proved and the company, thereafter, passed the order of dismissal against the said employee and over an industrial dispute raised on this issue, a reference under the Industrial Disputes Act was made before the Labour Court for deciding the following :–– ISSUES Whether the management was justified in terminating the services of Sri Swapan Kumar Mullick ? To what relief, if any, is he entitled? It may be noted that before the Tribunal, the enquiring officer was examined and the said Manager also deposed. The respondent No.4, namely, the dismissed employee also gave his deposition. It may be noted that the tribunal has come to the finding that the domestic enquiry was conducted by the enquiring officer properly and reasonable opportunity was given to the concerned employee to appear at the said domestic enquiry, but the learned Tribunal has come to the finding that only the charge of insubordination of the employee was proved but other charges had not been established. It may be noted in this connection that excepting the Manager, two other employees were examined on behalf of the management in the domestic enquiry but both the said witnesses spoke about refusal of the said employee to carry out the order passed by the Manager to go to the post office for registration but the said witnesses did not speak about other allegations made against the employee. It appears that the Tribunal did not accept the uncorroborated testimony of the Manager about hurling of insulting words by the employee concerned and for creating an atmosphere of gross indiscipline in the office before others and/or threatening the said Manager with dire consequence. The Tribunal, thereafter, came to the finding that there was nothing on record to show that the concerned employee had ever been charge-sheeted on any earlier occasion for insubordination and, in the facts and circumstances of the case, the order of dismissal passed against him appeared to be harsh and disproportionate. The learned tribunal, therefore, directed for re-instatement for the said employee but disallowed all back wages till the date of award which was for a period of about five years. Mr. Chatterjee, the learned Counsel, has contended that when the domestic enquiry was conducted properly after giving the concerned employee a reasonable opportunity of being heard and when on the basis of evidence and materials produced in the domestic enquiry, the enquiring officer came to a finding against the delinquent employee and the employer on consideration of such enquiry report and other materials had passed the order of dismissal there could not be any occasion for interference by the learned Tribunal. He contends that if the order of dismissal is vitiated by any act of mala fide or an attempt to victimise the employee and/or an unfair labour practice is resorted to by the employer in passing the order of punishment and/or the materials on record do not establish the charges levelled against the delinquent employee, then and then only the Tribunal may have an occasion to interfere with the discretion exercised by the employer in passing the order of punishment. In support of the said contention, Mr. Chaterjee has referred to the decision of the Supreme Court made in the case of (1) M/s. The Benaras Electric Light & Power Co. In support of the said contention, Mr. Chaterjee has referred to the decision of the Supreme Court made in the case of (1) M/s. The Benaras Electric Light & Power Co. Ltd. v. The Labour Court II, Lucknow & Ors., reported in AIR 1972 SC 2182 . It has been held by the Supreme Court in the said decision that a finding characterized in a domestic enquiry cannot be characterized perverse by the Labour Court unless it can be shown that such a finding is not supported by any evidence or is entirely opposed to the whole body of the evidence adduced. In a domestic enquiry once a conclusion is deduced from the evidence, it is not permissible to assail that conclusion even though it is possible for some other authority to arrive at a different conclusion on the same evidence. Mr. Chatterjee has also contended that even in the matter of exercising discretionary power under section 11A of the Industrial Disputes Act, Tribunal is required to take into consideration as to whether or not it will be just and proper to reinstate the dismissed employee although the charge against the employee has been established in the domestic enquiry and an order of dismissal can reasonably be passed on such charge. For this contention Mr. Chatterjee has relied on a decision of this Court made in the case of (2) M/s. Ludhlow Jute Co. Ltd. v. Nanda Kumar Singh & Ors., reported in 1982 (44) FLR 202. In the said case a Durwan of the company was found guilty of dereliction of duty causing theft and/or loss of the company and the company passed an order of dismissal. The Tribunal although held that the said order of dismissal was passed in the absence of any spirit of victimization or in furtherance of any undue labour practice, it came to the finding that the order of dismissal was quite harsh and in the facts and circumstances of the case a lesser punishment should be inflicted on the said Durwan. The Tribunal although held that the said order of dismissal was passed in the absence of any spirit of victimization or in furtherance of any undue labour practice, it came to the finding that the order of dismissal was quite harsh and in the facts and circumstances of the case a lesser punishment should be inflicted on the said Durwan. In the said decision, this Court directed the Tribunal to consider certain aspects of the case and pointed out that the quantum of loss suffered by the Company should not be a guiding factor but before passing the order of reinstatement the Tribunal should take into consideration as to whether or not even inspite of such dereliction of duty by a Durwan on whom the Company had reposed trust and who had failed to keep up such trust, he should be reinstated in the facts and circumstances of the case. Mr. Chatterjee has contended that the Manager had deposed before the enquiring officer and also before the Tribunal that the dismissed employee acted with gross insubordination and had also insulted him and threatened him with dire consequences and two other employees had also corroborated the fact of straightway refusal by the said employee to carry out orders. Mr. Chatterjee submits that the said fact of insubordination was, therefore, clearly established and if the evidence of a senior officer of the firm, namely, the Manager was accepted by the Management and on that basis an order of dismissal was passed then it cannot be contended that such order was passed in the absence of any material or a perverse view had been taken by the Management, in passing the said order. Mr. Chatterjee has contended that if a charge is proved and if on the basis of such charge, an order of dismissal can be passed in law by the employer then the discretion of the employer to pass the said order of dismissal cannot be interfered with by the tribunal in the exercise of the power under section 11A of the Industrial Disputes Act unless and until for cogent reasons, the Tribunal comes to the finding that such order was passed for the purpose of victimization and in pursuit of an unfair labour practice. He has submitted that discipline is a very important consideration for the management and the employer must be held to be the best judge as to whether or not on the charge of insubordination, an order of dismissal should be passed. Mr. Chatterjee has also drawn the attention of the Court to the observation of the learned Judge of the Labour Court to the effect that the management should have been lenient in dealing with the employee and should have given the employee, an opportunity to correct himself. It is contended by Mr. Chatterjee that it was not within the jurisdiction of the tribunal to decide as to what should have been done by the management in the matter of dealing with its employees and from the said observation it is quite apparent that the learned Judge had misdirected himself in passing the impugned order of reinstatement in the purported exercise of his powers under section 11A of the Industrial Disputes Act. 2. Mr. Sen Gupta, the learned Counsel appearing for the respondent No.4 has, however, contended that in 1971 the Industrial Disputes Act was amended and section 11A was incorporated by way of amendment and in the decision of the Supreme Court made in the Benaras Electric Company's case (supra), the law before amendment was considered and the Supreme Court had no occasion to consider the legislative change effected by the amendment in 1971 and the import of section 11A of the Industrial Disputes Act. Mr. Sen Gupta has submitted that after the said amendment incorporating section 11A, the Tribunal has been clothed with the power and jurisdiction to independently assess the evidences on record and to review the decision of the employer and to form its own view. He submits that section 11A has specifically empowered the learned Judge to consider the question as to whether or not in the facts and circumstances of the case, any other alternative punishment should be passed and for the said purpose, the learned Judge is required to take into consideration the gravity of the offence, the consequence of the impugned punishment and justification of any other lesser punishment. In this connection, Mr. Sen Gupta has referred to a later decision of the Supreme Court made in the case of (3) Workmen of Messrs. Firestone Tyre & Rubber Co. In this connection, Mr. Sen Gupta has referred to a later decision of the Supreme Court made in the case of (3) Workmen of Messrs. Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management & Ors., reported in 1973 Lab IC 851. In the said decision, the scope and import of section 11A of the Industrial Disputes Act were specifically considered by the Supreme Court and it has been held that even where the dismissal of a workman by an employer on ground of misconduct is preceded by a proper and valid domestic enquiry, section 11A now empowers the Labour Court or Tribunal to reappraise the evidence and examine the correctness of the finding thereat. Section 11A further empowers it to interfere with the punishment and alter the same. The Supreme Court has also held that the mere fact that no enquiry or defective enquiry has been held by the employer does not by itself render the dismissal of workman illegal. The right of the employer to adduce evidence justifying his action for the first time in such a case is not taken away by the proviso to section 11A. The Supreme Court has also explained in the said decision the import of section 11A and the position in law prior to coming into force of section 11A and the changes effected by the insertion of the said section in the Statute. Mr. Sen Gupta, therefore, contends that the contention of Mr. Chatterjee that the Tribunal and/or the Labour Court cannot interfere with the decision of the management excepting in the limited cases of mala fide, victimization or perversity as indicated hereinbefore is not a correct proposition of law but contrary to the provisions of section 11A as noted down by the Supreme Court in the said decision. He submits that under section 11A it has now become the duty of the Industrial Tribunal and/or the Labour Court to take into consideration all the materials on record for the purpose of coming to a finding of its own as to whether or not the finding made by the management was just and proper in the facts of the case and whether or not the punishment inflicted by the management is consonant to the right and justice and/or the same requires any alteration or modification. Mr. Mr. Sen Gupta has submitted that in the instant case, the management failed to establish any other charge levelled against the said respondent No.4 excepting the charge of insubordination and the tribunal has upheld the finding of the management on the charge of insubordination. Having held that all other charges excepting the charge of insubordination have not been proved, the tribunal in the exercise of its powers, duties and functions under section 11A, has considered as to whether or not the punishment of dismissal was just and proper in the facts and circumstances of the case. It appears that the tribunal has taken into consideration on the basis of the evidence adduced before it that the concerned employee had not been charge-sheeted for insubordination on any earlier occasion. The Tribunal has also taken into consideration that the employee concerned remained unemployed at the time of passing the award and the said employee had already suffered considerable hardship by remaining unemployed for a long time for not responding to the direction or order of the management. The Tribunal has, therefore, come to the finding that for the said act of insubordination on the first occasion the extreme punishment of dismissal was unwarranted and the same was harsh and disproportionate to the offence committed by the employee concerned. It was for these reasons that the learned Judge directed for reinstatement but deprived the employee to get benefits of all back wages for about five years. Mr. Sen Gupta, therefore, has submitted that the reasonings given by the learned Judge in passing the award are not only consonant to right and justice but the same have been given on careful consideration of all the materials on record and the Question of hardship suffered by the concerned employee. In the circumstances, Mr. Sen Gupta submits that when the Tribunal has not acted arbitrarily or in excess of its jurisdiction, the Writ Court should not interfere and supplement its own views. 3. After considering the respective submissions of the learned, Counsel for the parties, I am inclined to accept the submissions made by Mr. Sen Gupta. In my view Mr. Sen Gupta submits that when the Tribunal has not acted arbitrarily or in excess of its jurisdiction, the Writ Court should not interfere and supplement its own views. 3. After considering the respective submissions of the learned, Counsel for the parties, I am inclined to accept the submissions made by Mr. Sen Gupta. In my view Mr. Sen Gupta is justified that after the amendment of the Industrial Disputes Act in 1971 incorporating section 11A, the tribunal has not only the power and jurisdiction to re-appreciate the evidences for the purpose of making a finding of its own as to whether or not a proper enquiry had been held by the management against the concerned employee and whether or not the charges brought against such employee had been proved but the tribunal has also a duty under section 11A of the Industrial Disputes Act to consider as to whether or not the impugned punishment was just and proper in the facts and circumstances of the case and whether or not for ends of justice it is desirable to inflict a lesser punishment on the concerned employee. 4. In my view it will be an incorrect proposition to contend that excepting on the ground of victimization of the employee in the pursuit of unfair labour practice or absence of materials warranting any finding of guilt against the concerned employee the Tribunal and/or the Labour Court exercising powers under section 11A of the Industrial Disputes Act will be a silent spectator having no authority or jurisdiction to interfere with the decision taken by the management or discretion exercised by it against its employee. In the circumstances, no interference is called for and this writ petition is dismissed but I make no order as to costs.