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Allahabad High Court · body

2012 DIGILAW 1224 (ALL)

JOSEPH SOLOMON v. PRESIDING OFFICER, LABOUR COURT

2012-05-22

SUNIL HALI

body2012
JUDGMENT Hon’ble Sunil Hali, J.—Heard learned counsel for the parties and perused the material on record. 2. Petitioner was working as Instrument Mechanic Engineering Department in the Star Paper Mills Limited to the utmost satisfaction of the officials and nothing was recorded against the petitioner. On. 20.9.1981, petitioner was not allowed to enter into the factory premises by the officials of respondent No. 2 on account of timing fixed by the management for entry of workers in the premises. It seems that the petitioner was not allowed to go inside as a result of which petitioner got provoked and passed remarks that the officers are working like dog and in case he does not allow him to enter the premises he will have to face the dire consequences. This was construed to be a misconduct by the management as a result of which enquiry was initiated against the petitioner. Result of the enquiry was that the petitioner’s service was terminated on the ground that it was an act of gross misconduct which entails extreme punishment of dismissal. Reference was sought by the petitioner under Section 4 K of the UP I.D. Act and the labour Court after entering into reference examined the claim and counter claim and the witnesses produced by the parties. Findings recorded by the labour Court on the basis of the evidence as well as the material placed before it was that the petitioner had committed gross misconduct and deserves to be punished by ordering his dismissal from service and thereby Labour Court has up-held the order of the petitioner’s termination. It is under these circumstances the present writ petition has been filed. 3. While scanning through the record of the Labour Court as well as the order I do not find that there is any reason to interfere with the order. In so far as it relates to the legality of the enquiry conducted against the petitioner, record reveals that the Labour Court after going through the evidences and the material available before it concluded that the petitioner had abused the officials which tantamounts to gross misconduct and thereby approved his dismissal from the service. 4. Question that call for consideration is as to whether the punishment imposed on the petitioner was strictly in consonance with the principle of proportionality. 4. Question that call for consideration is as to whether the punishment imposed on the petitioner was strictly in consonance with the principle of proportionality. Principle of proportionality contemplates that while exercising its power to regulate the fundamental rights restriction imposed must be minimum to the extent that the object of the legislation or the order is achieved. If the restriction imposed has consequence of destroying the right itself or has adverse effects, action has to be judged on the principle of proportionality. The principle of proportionality was explained to mean that while regulating exercise of Fundamental rights the appropriate or the least-restrictive choice of measures has to be made by the legislature or the administrator so as to achieve the object of legislation or the purpose of administrative order as the case may be. Principle of proportionality can be invoked in case where the fundamental rights are adversely effected by the intended legislation or the Government Order which does not conform to the objects of the intended legislation or Government Order.Underlying principle is that the punishment awarded must be proportionate to the nature of allegations levelled. Misconduct has many facets. In the normal legal corner, it is an act done by a person in violation of the law or refusal to do something which ought to have been done. It assumes the colour of grave misconduct only if it is intended with ill motive. 5. While applying this principle of proportionality in the present case, it be seen that the allegations against the petitioner is that he had abused his officer by saying that he is behaving like a dog when he was not permitted to go inside the factory premises after 8.09 a.m. This comment appears to have been provoked by an act of the officer in not permitting the petitioner to enter the premises. On refusal to allow him to enter the premises, the petitioner got provoked/irritated in passing such comment. There was some element of provocation which resulted the petitioner in using this language against his officer. It cannot be said to be an act which was pre-meditated or was motivated by ill-will. I am of the opinion that it would not constitute gross misconduct in order to invite sever punishment of dismissal from service. 6. There was some element of provocation which resulted the petitioner in using this language against his officer. It cannot be said to be an act which was pre-meditated or was motivated by ill-will. I am of the opinion that it would not constitute gross misconduct in order to invite sever punishment of dismissal from service. 6. Labour Court while considering this matter under Section 11-A Industrial Disputes Act had ample power to examine and appreciate the findings of the enquiry officer including the right to reappraisal of the evidence which is on record. Section 11-A of the Act abridges the rights of employers when it comes to awarding a punishment based on the conclusion of a domestic enquiry. The Labour Court can alter the punishment imposed by the employer under Section 11-A of the Act, even if the misconduct is proved. The Labour Court is entitled to hold the opinion that the order of discharge or dismissal for the said misconduct is not justified. It can then award to the workman a lesser punishment. Labour Court has been given power for the first time to interfere with the punishment imposed by an employer but wide as this power may be, it is hedged in by the proviso to Section 11-A of the Act which requires the Labour Court to take into consideration only the material on record. Although Section 11-A confers power on an Industrial Tribunal or a Labour Court to substitute a lesser punishment in lieu of the order of discharge or dismissal passed by the management. This power has to be exercised judicially and the Industrial Tribunal or Labour Court is expected to interfere only if it is satisfied that the punishment imposed is highly disproportionate to the degree of guilt of the workman concerned. This power is akin to one used in the cases where principle of proportionality is invoked. In the present case, the Court has not examined the issued in context of principle of proportionality. 7. In the circumstances, I partly allow this writ petition. The matter is remanded back to the Labour Court for passing afresh order in the light of the observation made herein above within a period of one month from the date of production of certified copy of this order. 7. In the circumstances, I partly allow this writ petition. The matter is remanded back to the Labour Court for passing afresh order in the light of the observation made herein above within a period of one month from the date of production of certified copy of this order. However, it is contended by learned counsel for the respondents that the petitioner had already attained the age of superannuation in service. Labour Court while passing a fresh order shall also keep into mind that the petitioner had attained the age of superannuation during the pendecny of this writ petition. ——————