MIHIR TEXTILE LIMITED v. NARAYANSING LAYAKSING — 1992 DIGILAW 351 (GUJ)

B. S. KAPADIA, J. ( 1 ) THE petitioner Mihir Textile Ltd. has filed this petition for a writ of certiorari or any other appropriate writ order or direction quashing and setting aside the impugned judgments and orders Annexures-A and B to the petition. ( 2 ) THE respondent workman was working in the petitioner Mill. On 30-1-1981 when he was working in the night shift at about 5. 00 a. m. the Weaving Master of the Mill Shri Chopra called the respondent workman in the office of the Automatic Looms Department and asked him as to why the respondent was not putting on uniform. Thereupon the respondent got excited and started speaking with loud voice and started using filthy language against the Weaving Master. The respondent also challenged the authority of the Weaving Master by asking as to who was the Weaving Master to ask him and that the Weaving Master could do what he can. The respondent also gave a threat to the Weaving Master to see him outside the Mill compound. The Weaving Master also asked the respondent workman as to why he was sitting for longer period outside the Department and as to why he was not discharging the duties entrusted to him sincerely and carefully. Thereupon the respondent workman got further excited and started talking in loud voice and told that he would sit outside for five hours a day. ( 3 ) IN view of the aforesaid incident the respondent workman was given show cause notice on 31 and ultimately after holding inquiry the respondent was dismissed from service vide order dated 22-3-1981. ( 4 ) THE respondent challenged the said order of dismissal by filing an application under secs. 78 and 79 of the BIR Act before the Labour Court Ahmedabad. The learned Judge of the Labour Court came to the conclusion that the Inquiry Officer has properly considered the evidence produced by the respondent workman including the statements of his witnesses and came to the conclusion that the respondent workman was given opportunity to defend the case and that it cannot be said that the decision is taken without any evidence on record. The learned Judge of the Labour Court also recorded that it was not even the case of the respondent workman that it was a case of victimisation and/or unfair labour practice and gave the finding that the Inquiry Officer has followed the principles of natural justice and therefore the findings arrived at by the Inquiry Officer cannot be said to be perverse. However following the judgment of this Court in the case of Kotecha vs. Halar Salt Works 26 GLR 146 the learned Judge of the Labour Court has passed the order for reinstating the respondent workman but without backwages. ( 5 ) AGAINST the said order appeals came to be filed by both the sides before the Industrial Court under sec. 84 of the B. I. R. Act. The respondent workman preferred appeal being Appeal (IC) No. 60 of 1986 while the petitioner Mill Company preferred appeal being Appeal (IC) No. 66 of 1986. Both the appeals came to be dismissed by the Industrial Court vide order dated 8-3-1990. ( 6 ) MR. V. B. Patel learned Sr. Counsel appearing for the petitioner contended that Sec. 11 of the Industrial Disputes Act would not be applicable to the present case and that both the courts below have wrongly exercised the discretion under the said Section in setting aside the order of dismissal and passing order of punishment. Mr. Patel further submitted that assuming that the principle embodied under sec. 11a of the I. D. Act would be applicable even so both the courts below have misdirected themselves in not properly considering the charges proved against the respondent workman and have exceeded their jurisdiction by passing order of reinstatement in favour of the workman. ( 7 ) IN support of his submission Mr. Patel has pointed out that so far as the Labour Court is concerned from para-11 of its judgment it is clear that it has proceeded as if the only charge against the workman was of given abuses and of using filthy language against the Weaving Master as the respondent-workman got excited. ( 7 ) IN support of his submission Mr. Patel has pointed out that so far as the Labour Court is concerned from para-11 of its judgment it is clear that it has proceeded as if the only charge against the workman was of given abuses and of using filthy language against the Weaving Master as the respondent-workman got excited. ( 8 ) IT is true that in the case of C. V. Kotecha vs. Halar Salt and Chemical Works 26 GLR 146 it is held that in a case of misconduct of abuses and use of filthy language against the persons in the managment the extreme penalty of dismissal would be grossly disproportionate and would clearly show mala fide and victimisation of the workman. In the side case the judgment of the Supreme Court in the case of Ved Prakash Gupta vs. M/s. Delton Cable India (Pvt.) Ltd. AIR 1984 SC 914 was also considered. In the said case before the Supreme Court also the misconduct was of abuse and use of filthy language against persons in the management and the Supreme Court held that extreme penalty of dismissal was grossly disproportionate. ( 9 ) THE submission in the present case is if the charges proved against the respondent workman are only of misconduct of giving abuses or using filthy language against the Weaving Master certainly aforesaid judgments of this Court as also that of the Supreme Court would be applicable. It may be stated that the ratio laid down in the said judgments are not challenged by Mr. Patel and he agrees that the said judgments lay down the correct position of law. However according to him the said judgment are not applicable to the present case and that for the purpose of applying those judgments to the present case the Labour Court has considered the misconduct of giving abuses and using filthy language without going into the other charges proved against the respondent workman. ( 10 ) IT may be stated that it is already proved that on 30-1-1981 the respondent workman had misbehaved with the Weaving Master of the petitioner Mill given abuses used filthy language against him and had also given a threat to the Weaving Master. These facts are also summarised in para 4 of the judgment of the appellate court. ( 10 ) IT may be stated that it is already proved that on 30-1-1981 the respondent workman had misbehaved with the Weaving Master of the petitioner Mill given abuses used filthy language against him and had also given a threat to the Weaving Master. These facts are also summarised in para 4 of the judgment of the appellate court. It is therefore clear that all the charges levelled against the respondent workman are proved. Both the courts below have also held that the charges levelled against the respondent workman are proved. When that is so question would be whether the aforesaid judgments would be applicable to the facts of the present case. As stated earlier in both the said cases only allegations were of giving abuses and using filthy languages against the persons in the management and considering the facts of those case the said observations were made by the Supreme Court as also by this Court. ( 11 ) IN the present case the charge of giving threat to the Weaving Master by the respondent workman has also been proved. The behaviour of the respondent workman was of total insubordination inasmuch as he had answered to the Weaving Master that he would sit outside the department for five hours and he had challenged the authority of the Weaving Master to put questions to him. Under the circumstances it is not a case of only giving abuses and using filthy language but it is a very serious misconduct which should be viewed seriously. ( 12 ) IT may also be noted that this is not the first instance so far as the respondent workman is concerned. In the past also the respondent workman misbehaved with the superiors and said misconduct was also proved. The Labour Court has also observed in this connection that in the past when Mr. Bhatia was the Weaving Master the respondent workman had beaten Mr. Bhatia and therefore he was dismissed from service. However subsequently at the instance of one Shri Shantilal Shah of Majoor Mahajan the respondent workman was taken back in service. Said incident is not a stale one as it had taken place in the year 1979. Another incident had also taken place in the year 1980 consequent upon which the respondent was suspended for a period of four days and said order of suspension was not challenged by the respondent workman. Said incident is not a stale one as it had taken place in the year 1979. Another incident had also taken place in the year 1980 consequent upon which the respondent was suspended for a period of four days and said order of suspension was not challenged by the respondent workman. The Labour Court has also come to the conclusion that the past record of the respondent workman is not clean. He was given warning notices was suspended and was dismissed from service. Under these circumstances even the appellate court has also observed that looking to the past conduct of the present respondent workman he does not deserve any sympathy or mercy. Inspite of the aforesaid observations both the courts below have passed the order of reinstatement. ( 13 ) SO far as the Labour Court is concerned as stated above the learned Judge has proceeded on the basis that there only charge of giving abuses and using filthy language against the Weaving Master by the respondent workman and he took into consideration the past conduct of the respondent only for the purpose of with-holding the back wages. The past conduct of the respondent workman was not considered by the Labour Court for the purpose of considering the question as to whether the aforesaid judgments would be applicable to the facts of the present case. While the appellate Court gave the reason that the learned Judge of the Labour Court has taken into consideration at the misconducts of the respondent the seriousness thereof as also the past history of the respondent-workman and passed the order of reinstatement and therefore according to the appellate Court there was no impropriety in the said order. In fact as stated above the Labour Court has only considered the misconduct of giving abuses and using filthy language against the persons in management and the Labour Court did not consider the fact that there was also misconduct of giving threat to the Weaving Master which was proved. When the Labour Court has not taken into consideration the misconduct of giving threat to the Weaving Master it was erroneous on the part of the Appellate Court to observe that the learned Judge of the Labour Court has taken into consideration all the misconducts alleged against the workman. ( 14 ) IN view of what is discussed above we find some force in the argument advanced by Mr. ( 14 ) IN view of what is discussed above we find some force in the argument advanced by Mr. V. B. Patel that this is not a simple case of giving abuses and using filthy language by the respondent workman against the Weaving Master. Under the circumstances the aforesaid two judgments referred to by the Courts below would not be applicable to the facts of the present case. ( 15 ) AS discussed above the Labour Court at the time of considering the question as to whether the punishment imposed on the respondent workman is harsh or disproportionately high has not taken into consideration all the charges proved against the respondent workman and therefore in passing the order of setting aside the dismissal order passed by the management the Courts below have exceeded in their jurisdiction. In this collection Mr. V. B. Patel has relied on the judgment of the Division Bench of this Court in the case of Manekchowk and Ahmedabad Manufacturing Co. Ltd. vs. Industrial Court and another 1967 (1) LLJ 463 In the said case the clerk working in the Mill was found sleeping with his lege stretched on the gadi at 11. 40 a. m. while on duty by the manager of the mills who happened to pass through. The clerk was awakened by the cashier. Thereafter show-cause notice was issued to him as to why he should not be dismissed for gross misconduct and after obtaining his explanation and in view of his admission of his having been similarly found sleeping during working hours once before for which he was dismissed but taken on the recommendation of Majoor Mahajan the clerk was dismissed from service An application under sec. 78 of the Bombay Industrial Relations Act was filed and the Labour Court held that the order of dismissal was legal and proper and punishment awarded in the circumstances cannot be said to be harsh. The clerk preferred an appeal to the Industrial Tribunal who had set aside the order of the Labour Court and ordered reinstatement of the clerk with six months back wages and that was the subject matter of the writ petition before this Court. Ultimately after considering various contentions raised in the writ petition order of the Industrial Tribunal was set aside and the order of the Labour Court upholding the order of the dismissal was restored. Ultimately after considering various contentions raised in the writ petition order of the Industrial Tribunal was set aside and the order of the Labour Court upholding the order of the dismissal was restored. While the petition filed by the employee was also dismissed. In the said case while examining the powers of the Labour Court under sec. 78 (1) of the Bombay Industrial Relations Act against the order passed by the domestic tribunal or an inquiry made under the Standing Orders governing the Mills and its employees the Division Bench has held as under:" The Labour Court is not an appellate Court over domestic tribunals so as to enable It to appreciate the evidence led before the domestic tribunal and substitute its own finding if he cannot agree therewith. It does not exercise revisional jurisdiction as well. It has only the limited original jurisdiction and has to decide the disputer provided if falls under sec. 78 (1 ). If grave injustice is caused it may interfere with its order on the ground that it lacked propriety though no doubt it can interfere if it suffers from any illegality either in procedure of enquiry or on other grounds under the standing orders binding on the parties. Similarly in appeal against the order of the Labour Court under sec. 84 (1) of the Act the Industrial Tribunal can exercise only such and similar powers which the Labour Court has under sec. 78 (1) of the Act and no more". In the said case there was no hint or suggestion that the management was wanting in bona fides. The enquiry was fair and bona fide. There was no lack of bona fides or victimisation or unfair labour practice. The Court has not to Judge the order of punishment merely from the point of view as to whether he could not have passed it or whether it was excessive or too severe of consider its propriety or adequacy in any such matter. The question is whether in the circumstances of the case call it be said that no reasonable employer would have imposed such punishment. The sentence of dismissal in this case could not be considered to be unduly severe or unjust. The question is whether in the circumstances of the case call it be said that no reasonable employer would have imposed such punishment. The sentence of dismissal in this case could not be considered to be unduly severe or unjust. ( 16 ) IN the said case while considering the powers of the Labour Court to interfere with the punishment awarded by the domestic Tribunal the Division Bench further observed as under:"from the aforesaid cases it does appear clear that it would not be open for the labour court or the industrial tribunal as the case may be to re-appreciate the evidence on record or sit in appeal over the findings recorded by the domestic tribunal and howsoever severe or unjustified the punishment may appear to him and howsoever he may be inclined not to give such punishment if he would have to deal with it it would not be proper to interfere with the order of punishment passed by the domestic tribunal unless if we were to say so it was shockingly disproportionate to the act said to have been committed. by him. . . . Could it be said that no other person in the given instances would have awarded any such punishment at all ? Could it be said that order lacked propriety as it was disproportionate disproportionate to the nature of the act committed by him ? The labour Court or the industrial Tribunal cannot judge the severity or adequacy of punishment from its personal standard but has to judge it from the view point of a management having to carry on administration of a large concern such as mills and for which discipline amongst its workers is of considerable importance. It the consequences of that punishment were harsh he could have moved the managing agents of the mills an appellate authority under the standing orders and that could have been duly considered in its proper aspect. But that cannot be done by the labour court or the indus trial tribunal unless it can be called shockingly disproportionate in relation to the act of misconduct committed by him. . . ". ( 17 ) REVERTING to the facts the present case it is clear that the Courts below have held that it is not the case of the respondent workman that his was a case or victimisation and/or unfair labour practice. . . ". ( 17 ) REVERTING to the facts the present case it is clear that the Courts below have held that it is not the case of the respondent workman that his was a case or victimisation and/or unfair labour practice. Both the Courts below have not examined the point of punishment as per the principles discussed above but considered the case from personal standard of sympathy and economic death of the workman totally ignoring the view point of the management which has to carry on the administration of large Mill for which discipline among the workmen is of considerable importance. Therefore both the courts below have exceeded their jurisdiction in exercising powers as if they are appellate courts over the decision of the domestic tribunal. ( 18 ) IT may be stated that this is purely a case under the B. I. R. Act and directly the provisions of Sec. 11a of the I. D. Act would not be applicable. Still however even it the principle analogous to the one as found hi Sec. 11a of the I. A. Act is made applicable even so the powers under sec. 11a are to be exercised judicially and particularly when the punishment awarded is highly disproportionate to degree of the guilt of the workman concerned. On this point there is judgment of the Supreme Court in the case of Christian Medical College Hospital Employees Union and another vs. Christian Medical College Vollore Association and others 1988 0 LLJ 263 wherein the Supreme Court has observed as under:". . . . Sec. 11a which has been introduced since then into the Act which confers the power on the Industrial Tribunal or the Labour Court to substitute a lesser punishment in lieu of the order of discharge or dismissal passed by the management again cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under sec. III of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under sec III of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned". III of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under sec III of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned". The above principle also has not been applied to the present case by both the Courts below ( 19 ) MR. V. B. Patel has further submitted that the Labour Court has committed a grave error and grossly over looked the facts of the case and therefore this Court should interfere with the orders passed by the Labour Court as well as the Industrial Court. He has further submitted that the Labour Court has proceeded on the basis as mentioned in para 11 of its judgment that the present respondent workman has misbehaved with the Weaving Master Shri Chopra in excitement and has abused him and used filthy language against him. However the Labour Court has not considered the other misconducts proved against the respondent workman. The Labour Court has also not considered the threat given by the respondent workman to the Weaving Master. On the above facts of the case we agree with the submission made by Mr. Patel. ( 20 ) MR. Patel has in this connection placed reliance on the judgment of this Court in the case of Municipal Corporation of the city of Ahmedabad vs. Hussainmiya Chandmiya 27 GLR 1143 wherein it is observed that can the order of termination under such circumstances be said to be not justified or can it be described as shockingly improportionate as observed by the Labour Court. It is difficult to understand how the Labour Court call describe an order of termination of service in the backdrop of the established facts as shockingly disproportionate to the proved guilt. In the said case this Court further observed that Under sec. 11a the Labour Court can exercise jurisdiction only if the termination of service is found to be not justified but the order of termination cannot be substituted by a lesser punishment only on the basis fo misplaced sympathy. A workmen of the type before us has forfeited his right for sympathy because he has duped less fortunate persons of their hard-earned money. A workmen of the type before us has forfeited his right for sympathy because he has duped less fortunate persons of their hard-earned money. Lip sympathy or expression of regret is no substitute for what he pocketed by practicing fraud on innocent victims. The Labour Court hold clearly transgressed the discretionary jurisdiction vested in it by Sec. 11a of the Act by ordering reinstatement of the workman. In para 6 of the said judgment this Court has observed as under :"ordinarily we would be slow in interfering with an order of resinstatement passed under sec. 11a of the Act by way of a substitute for an order of dismissal or discharge but there are cases where such an arbitrary order cannot be countenanced because it tantamounts to an abuse of the discretionary jurisdiction conferred by sec. 11-A of the Act. In cases of gross misconduct such as the present one the most appropriate punishment would be the termination of service and it would be mockery of justice to brand such an order as not justified and substitute it by another order of the type made by the Labour Court. . . . "accordingly in the said case the petition was allowed and the impugned order passed by the Labour Court was quashed and set aside. . ( 21 ) IN the present case also as stated above both the courts below have transgressed their jurisdiction and they have not considered the vital charges proved against the respondent workman at the time of considering the question as to whether the punishment imposed on him was proper or shockingly disproportionate to the act committed by him. The reasons given by the Labour Court for the purpose of with-holding the back wages would have been sufficient for holding that the punishment imposed on the respondent workman was quite just and proper and it cannot be termed as unjustified or shockingly disproportionate to the guilt proved. ( 22 ) MR. V. S. Patel has also relied on the judgment of the Supreme Court in the case of M/s. Hindustan Steels Limited vs. A. K. Roy and others AIR 1970 SC 1401 wherein it is observed as under:". . The Tribunal has therefore. ( 22 ) MR. V. S. Patel has also relied on the judgment of the Supreme Court in the case of M/s. Hindustan Steels Limited vs. A. K. Roy and others AIR 1970 SC 1401 wherein it is observed as under:". . The Tribunal has therefore. to exercise its discretion judicially and in accordance with well recognised principles in that regard and has to examine carefully the circumstances of each case and decide whether such a case is one of those exceptions to the general rule. If the Tribunal were to exercise its discretion in disregard of such circumstances or the principles laid down by this Court it would be a case either of no exercise of discretion or of one not legally exercised. In either case the High Court ill exercise of its wit Jurisdiction cm interfere and cannot be content by simply saying that since the Tribunal has exercised its discretion it will not examine the circumstances of the case to ascertain whether or not such exercise was properly and in accordance with well settled principles made. If the High Court were to do so it would be a refusal on its part to exercise jurisdiction". ( 23 ) THE aforesaid observations are clearly applicable to the facts of the present case inasmuch as as discussed above the Labour Court as well as the Industrial court have exceeded their jurisdiction and have wrongly exercised the discretion by setting aside the order of dismissal passed by the management of the petitioner-Mill and passing the order of reinstatement without backwages in favour of the respondent workman. ( 24 ) IN view of the above discussion the petition deserves to be allowed and is hereby allowed. The order passed by the Labour Court Ahmedabad in T. Application No. 508/81 dated 24 (Annexure A) and the order passed by the Industrial Court Ahmedabad in Appeal (IC) No. 66/86 on 6-3-1990 (Annexure B) are hereby quashed and set aside and the order of dismissal passed by the petitioner-Mill is restored. Stay granted earlier stands vacated. The order passed by the Labour Court Ahmedabad in T. Application No. 508/81 dated 24 (Annexure A) and the order passed by the Industrial Court Ahmedabad in Appeal (IC) No. 66/86 on 6-3-1990 (Annexure B) are hereby quashed and set aside and the order of dismissal passed by the petitioner-Mill is restored. Stay granted earlier stands vacated. It should also be noted that the petitioner-Mill Company had filed a civil application being Civil Application No. 2061 of 1992 in this petition for vacating the stay order on the ground that the Department in which the respondent-workman was working is closed from 18 May 1992 This aspect is not disputed by the learned Advocate appearing for the respondent-workman. Therefore in this set of circumstances the respondent-workman was entitled to have only retrenchment benefits. Rule is accordingly made absolute with no order as to costs. Petition allowed. .