Ashwin N. Acharya v. Okha Port — 1992 DIGILAW 61 (GUJ)

PER A. N. DIVECHA, J. :-, J. ( 1 ) BY means of this petition under article 227 of the Constitution of India, the petitioner has challenged the legality and validity of the award made by the presiding Officer of the Second Labour court at Rajkot on 17th October 1991 holding the order passed by the concerned authority of the respondent on 1st october 1976 terminating the services of the petitioner to be legal and valid ( 2 ) THE facts giving rise to this petition may be summarised thus: The petitioner was appointed as a daily-rated workman by the order passed on 27th November 1974 by the Superintending Engineer - designs (Ports) at Rajkot. A copy of the order is at Annexure-A to this petition. Later on, by the order passed by the superintending Engineer (Ports) at rajkot on 19th March 1975, the petitioner came to be appointed as a Tradesman (Fitter) in the pay-scale of Rs. 130-240 on a temporary basis and posted at Okha. A copy of his order of appointment of 19th March 1975 is at Annexure-B to this petition. It appears that, by the order passed on 1st October 1976 by the superintending Engineer-Designs (Ports) at Bhavnagar, the services of the petitioner were ordered to be terminated presumably with immediate effect. Thereupon the petitioner came to be relieved from his services with effect from 4th October 1976 after office hours. A copy of "the order relieving him from services is at Annexure-C to this petition. The petitioner thereupon raised an industrial dispute and it was referred to the Labour Court at Rajkot for adjudication under Section 10 (1) (c) of the industrial Disputes Act, 1947 (the act for brief ). It was registered as Reference (LCR) No. 73 of 1978. It appears to have been assigned to the Second Labour Court at Rajkot. After recording evidence and hearing the parties, the learned Presiding officer of the Second Labour Court at rajkot, by his judgment and order passed on 17th October 1979 in Reference (LCR) no. 73 of 1978, was pleased to reject the reference holding the impugned order of termination of services of the petitioner to be legal and valid. The petitioner was however awarded compensation in the sum of Rs. 2,000/- from the respondent herein. 73 of 1978, was pleased to reject the reference holding the impugned order of termination of services of the petitioner to be legal and valid. The petitioner was however awarded compensation in the sum of Rs. 2,000/- from the respondent herein. A copy of the judgment and order passed by the Second Labour Court at rajkot on 17th October 1979 in Reference (LCR) No. 73 of 1978 is at Annexure-D to this petition. The aggrieved petitioner has thereupon approached this Court by way of this petition under Article 227 of the Constitution of India. ( 3 ) IT may be mentioned at this stage that the Labour Court has found the order of termination not according to law. At that stage it appears that the respondent tried to justify the order on the ground that it was by way of punishment for certain acts of misconduct on the part of the present petitioner. The Labour court has permitted the respondent herein to lead evidence in the adjudication proceedings in support of its case that the conduct of the petitioner warranted the disciplinary action of imposition of the extreme penalty of his discharge from service. ( 4 ) THE Labour Court has found the present petitioner to be guilty of certain acts of misconduct. According to the labour Court, the respondent herein was justified in terminating the services of the petitioner on the ground of these acts of misconduct on his part. Shri Patel for the petitioner has challenged the finding recorded by the Labour Court in that regard to be perverse. ( 5 ) IT cannot be gainsaid that a finding recorded by a Court or a Tribunal can be said to be perverse if such finding is recorded without any evidence on record or it is contrary to evidence on record or it is such as no responsible man would record it on the basis of the material on record. This position of law is well-settled and it is not necessary to refer to any ruling in that regard. ( 6 ) IN transpires from the judgment of the Labour Court that there were complaints of misconduct against the petitioner at Okha. It may be mentioned at this stage that the Labour Court has itself found in para 9 of its judgment that the petitioners appointment was subjected to criticism by the Union of employees at the Okha Port. ( 6 ) IN transpires from the judgment of the Labour Court that there were complaints of misconduct against the petitioner at Okha. It may be mentioned at this stage that the Labour Court has itself found in para 9 of its judgment that the petitioners appointment was subjected to criticism by the Union of employees at the Okha Port. In fact, as transpiring from para 9 of the judgment of the Labour Court the workers Union had launched some agitation against the present petitioners appointment at Okha. It would mean that his fellow-workmen bore grudge against him with respect to his appointment. The Labout Court appears to have missed sight of this factual position while appreciating the evidence on record. It may be mentioned at this stage that we do not find in the judgment any summary of the evidence of witnesses examined by and on behalf of the respondent in the adjudication proceedings. It is, therefore, difficult for us to know whether or not any suggestion was made to these witnesses of their bearing grudge against the present petitioner with respect to his appointment at Okha under the order of appointment at Annexure-B to this petition. This however should not prompt us to remand the matter to the Labour Court for fresh enquiry or to call of the proceedings for the simple reason that more than 13 years from the date of its judgment have rolled by. Besides, there is ample material on record to appreciate certain other submissions urged before us by Shri Patel for the petitioner. ( 7 ) IT has been urged before us that the petitioner tendered his apology on three occasions for his alleged acts of rude behaviour presumably with his fellow workmen. The first apology was in his letter of 11th July 1975 at Exh. 5. The second was in his letter of 1st July 1976 at Exh. 47. The third was by his letter of 10th September 1976 at Exh. 49. It does not become clear from the judgment whether any act of misconduct or rude behaviour was noticed on the part of the petitioner herein after his letter of apology given on 10th September 1976 at Exh. 49. It was not the case of respondent herein in the course of the adjudication proceedings that his apologies were not accepted by the authority or the authorities. 49. It was not the case of respondent herein in the course of the adjudication proceedings that his apologies were not accepted by the authority or the authorities. It transpires from the judgment that the apologies tendered by him were accepted. If they were not accepted, he could have been charge-sheeted for the alleged act of rude behaviour or misconduct. Nothing of the sort was brought on record by or on behalf of the respondent in the course of the adjudication proceedings. In that view of the matter, there is no hesitation on our part in coming to the conclusion that the apologies tendered by the petitioner on all those three occasions were accepted. Once apologies tendered by an employee for his rude behaviour is accepted, such rude behaviour should not form the basis of any further disciplinary action. In the instant case, rude behaviour of the present petitioner towards his fellow-workmen and towards his superior officers is made the basis of his discharge from service. This cannot simply be done. ( 8 ) IT transpires from the order at annexure-C to this petition that the petitioners services came to be terminated by the order passed by the appointing authority on 1st October 1976. As pointed out hereinabove, the last letter of apology tendered by him was on 10th september 1976 at Exh. 49. Hardly 20 days intervened between the letter of his apology of 10th September 1976 and the order of termination of his services on 1st October 1976. The evidence does not show that the petitioner was guilty of any rude behaviour or misconduct during the intervening period from 10th september 1976 to 1st October 1976, In that view of the matter, there was no warrant for conclusion that he could have been discharged from service on the basis of his past rude behaviour or misconduct. Even at the cost of repetition, we may reiterate that his past lapses came to be condoned by acceptance of his apologies. We even repeat that there is nothing on record to show or to suggest that his apologies were not accepted. In that view of the matter, his past lapses could not have formed the basis of his discharge from service. No reasonable man could have justified the action of the respondent in bringing the petitioners services to an end on the basis of such past lapses on his part. In that view of the matter, his past lapses could not have formed the basis of his discharge from service. No reasonable man could have justified the action of the respondent in bringing the petitioners services to an end on the basis of such past lapses on his part. The conclusion reached by the Labour Court in upholding the justification shown by the respondent for discharge of the petitioner from service en account of his past behaviour and conduct is such as no reasonable man would reach on the basis of the material on record. The finding recorded by the labour Court can therefore be said to be perverse. ( 9 ) IT may be mentioned at this stage that the Labour Court has in para 9 of its judgment observed that the appointment of the present petitioner at bhavnagar and his subsequent appointment at Okha were made in contravention of the prevailing practice. The learned Presiding Officer of the second Labour Court has not chosen to explain in his judgment how the petitioners such appointments were in contravention of the prevailing practice. It appears that no evidence in that regard was led by or on behalf of the respondent in the adjudication proceedings. We think that the respondent could not have been permitted to lead any evidence in that regard. In fact, we are of the view that the respondent could not have been permitted to justify its action of discharge on that ground as his such discharge was not by way of any punishment on that account. ( 10 ) THE same result would follow if the question is examined from a different angle in the light of the alternative submission urged before us by Shri Patel for the petitioner. The petitioners discharge from service was sought to be justified on the ground of his past misbehaviour It transpires from the judgment of the Labour Court that it was not the case of the respondent herein in the course of the adjudication proceedings that the present petitioner was incorrigible with respect to his behaviour with his fellow workmen or with superior officers. In that view of the matter, the question arising before us is whether or not the extreme penalty of economic death should have been inflicted on him for his past lapses with respect to his behaviour. Section 11a of the Act. In that view of the matter, the question arising before us is whether or not the extreme penalty of economic death should have been inflicted on him for his past lapses with respect to his behaviour. Section 11a of the Act. empowers the forum named therein to substitute a less severe punishment for the punishment imposed by the employer on the workman. It would mean that it would be open to the forum created under the Act to examine the proportionality of punishment in the light of proved misconduct of the employee. For the time being we assume in favour of the respondent that the petitioner is found guilty of misconduct on account of his rude behaviour with his fellow workmen or with his superior officers. As aforesaid, it was not the case of the respondent before the Labour Court that he was incorrigible or beyond redemption. In that view of the matter, it was the duty of the Labour Court to have addressed itself on the question whether or not the punishment inflicted on the petitioner was disproportionate to the ground of his misconduct arising from his rude behaviour with his fellow workmen or with his superior officers. With respect, the learned Presiding officer of the Second Labour Court has missed this aspect of the case. We find that the extreme punishment of severance of the tie of employment inflicted on the petitioner in this case is grossly disproportionate to his misconduct arising from his alleged rude behaviour with his fellow workmen or with his superior officers and more particularly so when his apologies were accepted. Different considerations might have arisen if his apologies were not accepted and the charge-sheet might have come to be issued for his such misconduct of rude behaviour. Once we come to the conclusion that the punishment inflicted on the petitioner is out of proportion, we have only to set aside such punishment. ( 11 ) THE question that may now arise would be the relief to be granted to the petitioner after our coming to the conclusion that the punishment inflicted on the petitioner cannot be sustained in law. The respondent will have to be ordered to reinstate the petitioner in service. Then arises the question of payment of back wages for the period from the date of his discharge from service till reinstatement. The respondent will have to be ordered to reinstate the petitioner in service. Then arises the question of payment of back wages for the period from the date of his discharge from service till reinstatement. The order of termination passed on 1st October 1976 was enforced and implemented with effect from 4th October 1976 after office hours as transpiring from the order at annexure-C to this petition. More than 15 years have rolled by since then. The petitioner was appointed for some technical work. It would be safe to presume that a technician would not remain without work. Of course, it would be unsafe to presume that he was able to earn as much as he was earning while in his employment under the respondent. We can however safely presume that during the intervening period of all these 15 years or odd, he might have remained engaged in some gainful activity. What would be the quantum of his earning during this period can be the subject-matter of an enquiry in that regard. That might pose a question whether or not it would be desirable to order any enquiry in that regard. Instead, we would be justified in ordering payment of the two-third of the wages payable to him for the intervening period. This direction would also take care of the punishment that might be required to be inflicted on the petitioner when the impugned order is found to be grossly disproportionate to the charge of misconduct or his misbehaviour. The lost of the one-third of the wages would come j to a sizeable amount and such loss to a workman makes him feel the pinch of it. It is not possible for a poorly paid workman to accept any deduction in wages with any stoic indifference. ( 12 ) IN view of our aforesaid discussion we are of the opinion that this petitton deserves to be accepted. The judgment and order at Annexure-D to this petition deserves to be quashed and set aside an deserves to be substituted by the order of reinstatement with payment of the two-third of the back wages payable to the petitioner from the date of the discharge till his reinstatement. the award passed on the basis of the judgment and order at Annexure-D to his petition deserves to be modified accordingly. ( 13 ) IN the result, this petition is accepted. the award passed on the basis of the judgment and order at Annexure-D to his petition deserves to be modified accordingly. ( 13 ) IN the result, this petition is accepted. The judgment and order at annexure-D is quashed and set aside. The operative part of the order is substituted by the order of reinstatement and payment of the two-third of the wages payable to him from the date of his discharge till his reinstatement in service. The respondent is directed to reinstate the petitioner in service within two weeks from the receipt of the writ of this Court or from the production of a certified copy of this judgment by the petitioner and to pay the two-third of the wages payable to him from the date of his discharge till his reinstatement within three months from the date of reinstatement. The registry is directed to send the writ of this case as expeditiously as possible, preferably on or before 29th February 1992. Rule is accordingly made absolute however with no order as to costs on the facts and in the circumstances of the case. Rule made absolute. .