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2020 DIGILAW 452 (BOM)

Hartex Tubes Pvt. Ltd. v. Janardhan Rajbhar

2020-02-27

ROHIT B.DEO

body2020
JUDGMENT : ROHIT B. DEO, J. 1. The petitioner is assailing the judgment dated 26.2.2007, rendered by the 1st Labour Court, Nagpur in Complaint (ULPA) 493 of 1997, whereby the dismissal of the respondent 1 herein is declared illegal and the respondent 1 is held entitled to reinstatement in service with continuity and 25% back wages. The petitioner challenged the judgment of the Labour Court, Nagpur in Revision (ULP) 104 of 2007, which the Industrial Court, Nagpur dismissed vide judgment dated 10.11.2014, which judgment is also impugned herein. 2. Respondent 1 (workman) filed Complaint (ULPA) 493 of 1997 alleging that he was illegally terminated by the petitioner (employer). The workman averred that he was appointed on 2.3.1992 as Helper and that his service record is clean. The workman was promoted as Guli Operator. 3. The workman averred that the employer is engaged in manufacture of rubber tubes used in bicycle and engages approximately 30 employees. The workman alleged that in order to stiffle dissent the employer is habituated to victimizing the employees. The workman averred that he was suspended vide order 12.2.1996 and subsequently was issued charge sheet dated 26.3.1996. According to the workman, the said action was initiated only because he was named as defence witness in an enquiry initiated by the employer against a colleague. 4. The workman averred that the allegations levelled in the charge sheet was that the workman deliberately kept the rubber tubes on the ground instead of keeping the rubber tubes on the table and that when one Shri Mukesh Batham questioned the workman, he abused and threatened Mukesh Batham. The workman then contended that a farcical enquiry was conducted in breach of the principles of natural justice and the workman was dismissed vide order dated 9.5.1997. The employer issued dismissal order without considering the explanation of the workman. The workman contended that the findings of the enquiry officer are perverse and that in any event the punishment of dismissal is shockingly disproportionate to the alleged misconduct. The employer opposed the complaint. The employer refuted the allegation that the initiation of disciplinary action was mala-fide or connected with the naming of the workman as a defence witness in the enquiry against a colleague. The employer contended that the enquiry was conducted in a fair manner and that the findings recorded are consistent with the material on record. The employer opposed the complaint. The employer refuted the allegation that the initiation of disciplinary action was mala-fide or connected with the naming of the workman as a defence witness in the enquiry against a colleague. The employer contended that the enquiry was conducted in a fair manner and that the findings recorded are consistent with the material on record. The employer contended that the past record of the workman was considered along with the gravity of the misconduct before issuing the dismissal order dated 9.5.1997. The employer refuted the contention that the punishment of dismissal is shockingly disproportionate to the proved misconduct. The employer contended that since the aggravating circumstances including the bad past service record of the workman was duly considered, the order of dismissal cannot be held an unfair labour practice. 5. The Labour Court held that the enquiry conducted was fair and proper and the findings recorded by the enquiry officer are not perverse. However, on the premise that the punishment of dismissal was shockingly disproportionate to the proved misconduct, the Labour Court directed reinstatement with 25% back wages. Perusal of the charge sheet dated 26.3.1996 would reveal that the allegation was that the workman placed the rubber tubes not on the table but on the floor and that when he was questioned by Mukesh Batham, the workman started abusing Mukesh Batham and uttered the words “are you leaving the spot or not?” (This is a broad translation of the vernacular.) Be it noted that the nature of the alleged abuses was not disclosed in the charge sheet. The words which were allegedly uttered, and which words were allegedly threatening, were only a rhetoric and the displeased workman was probably asking Mukesh to leave him alone. However, from the words allegedly uttered, it is difficult to believe that the person at the receiving end would feel threatened. The employer was presumably alive to the formidable challenge posed by the first impression that the punishment of dismissal was shockingly disproportionate to the proved misconduct. The employer sought to overcome the obstacle by contending that the past record of the workman was bad. The employer produced on record certain documents vide list Exh.36 which according to the employer reflected the bad service record of the workman. However, the documents produced vide list Exh.36, were produced belatedly and after the recording of the evidence of the workman. 6. The employer produced on record certain documents vide list Exh.36 which according to the employer reflected the bad service record of the workman. However, the documents produced vide list Exh.36, were produced belatedly and after the recording of the evidence of the workman. 6. The Labour Court considered the documents produced vide list Exh.36, thus: “7. No doubt, the respondent has produced certain documents as per list Ex. 36. First document is at Ex. 39 dated 9.8.1993 show cause notice Document no. 2 Ex. 40 is warning letter dated 2.1.1995. Document Ex.41 is also warning letter dated 6.2.1995. The document Ex. 42 dated 10.2.1995 is also warning letter issued to the complainant. The document Ex.43 dated 13.2.1995 is also warning letter. The document Ex. 44 is show cause notice dated 13.2.1995. The witness of the respondent has stated that prior to his dismissal he was given warning and show cause notice. The witness of the respondent in his cross examination has stated that he cannot assign any reason why these documents Ex.s.39 to 44 are not produced prior to 25.4.2006. Admitting the respondent has not produced these documents before evidence of the complainant. During has cross examination also the respondent had not produced these documents. All these documents are not confronted to the complainant by the respondent. Therefore the complainant has not got opportunity to say about these documents. According to the learned counsel for the complainant all these documents are fabricated documents. The signatures shown on these documents of the complainant are not of the complainant and therefore these documents cannot be relied on. The respondent did not produce these documents earlier and not asked the complainant about his signatures shown on these documents Exh.39 to 44. He was also not asked for the cross examination that he was earlier issued show cause notice and warning letters by the respondent. In his cross examination nothing brought on record that his past service record was bad. No doubt, earlier he was dismissed from service on 23.3.1993 however subsequently due to settlement between union and the management he was taken on work. The complainant has also admitted in his cross-examination that he was dismissed from the service w.e.f. 23.4.1993 and enquiry was conducted against him and after dismissal the settlement was done between union and management and he was taken on work w.e.f. 10.6.1993. The complainant has also admitted in his cross-examination that he was dismissed from the service w.e.f. 23.4.1993 and enquiry was conducted against him and after dismissal the settlement was done between union and management and he was taken on work w.e.f. 10.6.1993. Once, the complainant was taken on work as per settlement, the dismissal of the complainant has gone away. As held by the Hon’ble Apex Court the documents Exhs. 39 to 44 were not confronted to the complainant and therefore these documents cannot be relied on to say that the past service record of the complainant was bad. Therefore, it appears that except the complainant was dismissed earlier in the year 1993, there are no other misconduct of the complainant to show that his past service record is bad.” 7. The Labour Court then proceeded to observe that the punishment is shockingly disproportionate and that the employer is guilty of legal and factual victimization. However, the Labour Court while directing reinstatement restricted the back wages to 25%. 8. The Industrial Court confirmed the findings of the Labour Court after noting the limited scope of the revisional jurisdiction under section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (“Act” for short). 9. The learned counsel for the employer Shri R.B. Puranik would submit that both the Courts below erred in not appreciating the ratio of the decision in Colour-Chem Ltd. vs. A.L. Alsapurkar and Others, (1998) 3 SCC 192 . In view of the said submission, it would be apposite to note the factual matrix in the context of which the Hon’ble Supreme Court considered the issue in Colour-Chem Ltd. vs. A.L. Alsapurkar and Others. The employer was in appeal challenging the order of the High Court which upheld the concurrent orders of the Labour and the Industrial Court whereby the workmen were ordered to be reinstated in service with 40% and 50% back wages. The workmen who were Plant Operators were found sleeping while on duty in the night shift. A domestic inquiry was conducted and the Plant Operators were dismissed. The Labour Court held that the misconduct is proved and that the workmen failed to prove that they were dismissed by way of unfair labour practices covered by clauses (a), (b), (d) and (f) of Item 1 of Schedule IV of the Act. A domestic inquiry was conducted and the Plant Operators were dismissed. The Labour Court held that the misconduct is proved and that the workmen failed to prove that they were dismissed by way of unfair labour practices covered by clauses (a), (b), (d) and (f) of Item 1 of Schedule IV of the Act. However, the Labour Court held that the employer committed unfair labour practice as contemplated by clause (g) of Item 1 of Schedule IV. The revisional Court and the High Court confirmed the said view. 10. The Hon’ble Apex Court reviewed the statutory scheme of the Act. The Apex Court noted that the Labour Court did not record a finding that the misconduct is of a minor or technical nature, and the Hon’ble Apex Court, therefore, proceeded on the basis that the workmen were guilty of major misconduct. The question which fell for consideration was whether on the express language of clause (g), the said provision is attracted in the factual matrix. The Hon’ble Apex Court did not agree with the contention of the learned senior counsel for the workmen that the said clause would also cover even major misconduct if the order of discharge or dismissal is passed by the employer without having regard to the nature of the misconduct or the past record of the employees and if under these circumstances, it is found that the punishment imposed is shockingly disproportionate. 11. The relevant provisions of Item 1 of Schedule IV of the Act read thus: General Unfair Labour Practices on the part of Employers “1. To discharge or dismiss employees:- (a) by way of victimization. (b) not in good faith, but in colourable exercise of employer’s rights. (c) by falsely implicating an employee in a criminal case on false evidence or on concocted evidence. (d) for patently false reasons. (e) on untrue or trumped up allegation of absence without leave. (f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste. (g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment.” 12. The Hon’ble Apex Court observed that the comma after expression “for misconduct of a minor or technical character” cannot be replaced by “or”. The Hon’ble Apex Court observed that the comma after expression “for misconduct of a minor or technical character” cannot be replaced by “or”. Consequently, the Hon’ble Apex Court held that if the proved misconduct is not of a minor or a technical character, clause (g) would not be attracted notwithstanding that considering the past record, the punishment may appear to be shockingly disproportionate. The Hon’ble Apex Court articulated that once clause (g) deals with the topic of misconduct of a minor or technical character, it is difficult to appreciate how the said clause can be construed as covering a major misconduct. 13. The correct scope and ambit of clause (g) of Item 1 of Schedule IV of the Act is enunciated by the Hon’ble Apex Court thus: “10. For resolving the controversy centering round this point it is necessary to have a look at the relevant statutory provisions of the Act. The Act was passed by the Maharashtra Legislature in 1971 as Act No. 1 of 1972. Amongst its diverse objects and reasons one of the reasons for enacting the said Act was for defining and providing for prevention of certain unfair labour practices to constitute courts (as independent machinery) for carrying out the purposes mentioned therein one of which being enforcing provisions relating to unfair labour practices. “Unfair labour practices” is defined by Section 3 sub-section (16) of the Act to mean “Unfair labour practices as defined in section 26.” Section 26 of the Act lays down that, unless the context required otherwise “unfair labour practices” mean any of the practices listed in Schedules II, III and IV. We are not concerned with Schedules II and III which deal with unfair labour practices on the part of the employer and trade unions. We are directly concerned with Schedule IV which deals with general unfair labour practices on the part of the employers. The relevant provisions of Item 1 of Schedule IV of the Act read as under: “1. To discharge or dismiss employees: (a) by way of victimization. (b) to (f)......... We are directly concerned with Schedule IV which deals with general unfair labour practices on the part of the employers. The relevant provisions of Item 1 of Schedule IV of the Act read as under: “1. To discharge or dismiss employees: (a) by way of victimization. (b) to (f)......... (g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment.” So far as the aforesaid Clause (g) is concerned the Labour Court has held that the misconduct alleged against the respondent and held proved before it was not a misconduct of minor or technical character as they were found sleeping on duty and were also guilty of negligence in keeping the machine in working state without putting necessary raw material therein. As the aforesaid finding of the Labour Court about the nature of misconduct of respondents 3 and 4 was confirmed by the revisional court and a that finding was not challenged by the respondents before the High Court we shall proceed for the present discussion on the basis that respondents 3 and 4 were guilty of major misconduct. The moot question, therefore, which falls for consideration is whether on the express language of Clause (g) the said provision gets attracted or not. A conjoint reading of different sub-parts of the aforesaid provision, in our view, leaves no room for doubt that it deals with an unfair labour practice said to have been committed by an employer who discharges or dismisses an employee for misconduct of a minor or technical character and while doing so no regard is kept to the nature of the misconduct alleged and proved against the delinquent or without having regard to the past service record of the employee so that under these circumstances the ultimate punishment imposed on the delinquent would be found by the Court be a shockingly disproportionate punishment. It is not possible to agree with the contention of learned senior counsel for the respondent-workmen that the said clause would also cover even major misconducts if for such misconducts the order of discharge or dismissal are passed by the employer without having regard to the nature of the misconduct or the past record of the employees and if under these circumstances it is found by the court that the punishment imposed is shockingly disproportionate one. It is true that after the words “for misconduct of a minor or technical character'” there is found a comma in Clause (g), but if the contention of learned senior counsel is to be accepted the comma will have to be replaced by “or”. That cannot be done in the context and setting s of the said clause as the said exercise apart from being impermissible would not make a harmonious reading of the provision. Even that apart, in the said Clause (g) the legislature has used the word “or” while dealing with the topic of non-consideration by the employer while imposing the punishment the relevant factors to be considered, namely, either the non-consideration of the nature of the particular misconduct or the past record of service of the employee, which would make the punishment appear to be shockingly disproportionate to the charge of misconduct held proved against the delinquent. Thus the term “or” as employed by he Legislature in the said clause refers to the same topic, namely non-consideration of relevant aspects by the employer while imposing the punishment. Consequently it cannot be said to have any reference to the nature of the misconduct, whether minor or major. It must, therefore, be held that the comma as found in the clause after providing for the nature of the misconduct only indicated how the same nature of the misconduct referred to in the first part of the clause results in a shockingly disproportionate punishment if certain relevant factors, as mentioned in the subsequent part of the clause, are not considered by the employer. If the contention of learned senior counsel for the respondents was right all the sub- parts of clause (g) have to be read disjunctively and not conjunctively. That would result in a very anomalous situation. If the contention of learned senior counsel for the respondents was right all the sub- parts of clause (g) have to be read disjunctively and not conjunctively. That would result in a very anomalous situation. In such an eventuality the discharge or dismissal of an employee in case of a major misconduct without regard to the nature of the particular misconduct or past record of service may by itself amount to shockingly disproportionate punishment. Consequently for a proved major misconduct if past service record is not seen the punishment of discharge or dismissal by itself may amount to a shockingly disproportionate punishment. Such an incongruous result is not contemplated by Clause (g) of Item 1 of Schedule IV of the Act. Such type of truncated operation of the said provision is contra-indicated by the very texture and settings of the said clause. One the said clause deals with the topic of misconduct of a minor or technical character it is difficult to appreciated how the said clause can be construed as covering also major misconducts for which there is not even a whisper in the said clause. On a harmonious construction of the said clause with all it sub-parts, therefore, it must be held that the Legislature had contemplated while enacting the said clause punishment of discharge or dismissal for misconduct of minor or technical character which when seen in the light of the nature of the particular minor or technical misconduct or the past record of the employee would amount to inflicting of shockingly disproportionate punishment. In this connection we may mention that the same learned Judge B.N. Srikrishna. J. in a latter decision in the case of Pandurang Kashinath Want vs. Divisional Controller, Maharashtra SRTC has taken the view that Clause (g) of Item 1 of Schedule IV of the Act refers to minor or technical misconduct only. The same view was also taken by another learned Judge Jahagirdar. J. in the case of Maharashtra SRTC vs. Niranjan Sridhar Gade. So far as this Court is concerned the same Act came for consideration in the case of Hindustan Lever Ltd. vs. Ashok Vishnu Kate. The same view was also taken by another learned Judge Jahagirdar. J. in the case of Maharashtra SRTC vs. Niranjan Sridhar Gade. So far as this Court is concerned the same Act came for consideration in the case of Hindustan Lever Ltd. vs. Ashok Vishnu Kate. It is, of course, true that the question with which this Court was concerned was a different one, namely whether before any final discharge or dismissal order is passed, a complaint could be filed under the Act on the ground that the employer was contemplating to commit such unfair labour practice, if ultimately the departmental proceedings were likely to result into final orders of dismissal or discharge attracting any of the clauses of Item 1 of Schedule IV of the Act. However while considering the scheme of the Act especially the very same Item 1 of Schedule IV of the Act a Bench of this Court consisting of G.N. Ray. J. and one of us S.B. Majmudar, J. in paragraph 26 of the Report assumed that the said clause would cover minor misconducts.” 14. The Hon’ble Apex Court, however, held that notwithstanding that clause (g) of Item 1 of Schedule IV of the Act is not attracted, clause (a) of Item 1 of Schedule IV gets squarely attracted if the punishment is most reasonable as would amount to victimization. It would be relevant to note the following observations of the Hon’ble Apex Court in Colour-Chem Ltd. vs. A.L. Alsapurkar and Others: “The aforesaid observations in this decision fall in line with the observations in the earlier decision of this Court in Hind Construction. Consequently it must be held that when looking to the nature of the charge of even major misconduct which is found proved if the punishment of dismissed or discharge as imposed is found to be grossly disproportionate in the light of the nature of the misconduct or the past record of the employee concerned involved in the misconduct or is such which no reasonable employer would ever impose in like circumstances, inflicting of such punishment itself could be treated as legal victimisation. On the facts of the present case there is a clear finding reached by the Labour Court and as confirmed by the Industrial Court that the charges levelled against the respondent-delinquents which were held proved even though reflecting major misconducts, were not such in the light of their past service record as would merit imposition of punishment of dismissal. This factual finding would obviously attract the conclusion that by imposing such punishment the appellant-management had victimised the respondent- delinquents. Imposition of such shockingly disproportionate punishment by itself, therefore, has to be treated as legal victimisation apart from not being factual victimisation as on the latter aspect the Labour Court has held against the respondent-workmen and that finding has also remained well sustained on record. Thus it must be held that the management even though not guilty of factual victimisation was guilty of legal victimisation in the light of the proved facts which squarely attracted the ratio of the decisions of this Court in Hind Construction and Bharat Iron, Works. It is easy to visualise that no reasonable management could have punished a delinquent workman who in the late hours of the night shift by about 03.30 a.m. had gone to sleep keeping the machine in a working condition especially in the absence of any gross misconduct reflected by the past service record, with the extreme penalty of dismissal. It is also interesting to note that this was a peculiar case in which the Plant In-charge found during his surprise visit at 03.30 a.m. in the early hours of the dawn entire work force of 10 mazdoors and 2 operators like the respondents and the supervisor all asleep. It is also pertinent to note that so far as 10 mazdoors were concerned they were let off for this very misconduct by mere warning while the respondents were dismissed from service. It is of course, true that the respondents were assigned more responsible duty as compared to mazdoors, but in the background of surrounding circumstances and especially in the light of their past service record there is no escape from the conclusion that the punishment of dismissal imposed on them for such misconduct was grossly and shockingly disproportionate, as rightly held by the Labour Court and as confirmed by the revisional court and the High Court. By imposing such grossly disproportionate punishment on the respondents the appellant-management had tried to kill a fly with a sledge hammer. Consequently it must be held that the appellant was guilty of unfair labour practice. Such an act was squarely covered by Clause (a) of Item 1 of Schedule IV of the Act being legal victimisation, if not factual victimisation. The ultimate finding of the Labour Court about maintainability of the complaint can be supported on this ground. The second point is answered in the affirmative against the appellant and in favour of the respondent-workmen.” With due respect to the submissions canvased by the learned counsel Shri R.B. Puranik, in my considered view, the ratio in Colour-Chem Ltd. vs. A.L. Alsapurkar and Others does not take the case of the petitioner any further. Even if it is assumed, arguendo, that as is contended by Shri R.B. Puranik, the misconduct proved is not minor or technical, the only consequence of such assumption would be that clause (g) of Item 1 of Schedule IV of the Act, is not attracted. However, as is articulated by the Hon’ble Apex Court, the dismissal of the workman would be legal victimization and would attract the provisions of clause (a) of Item 1 of Schedule IV of the Act, if the punishment of dismissal is a manifestly unreasonable punishment. 15. The Courts below have recorded concurrent findings that the punishment is shockingly disproportionate. The past record is held not proved. The reasons articulated by the Courts below for holding that the past record is not proved apart, it may be noted that irrefutably, the past record was not put to the workman before issuing the dismissal order. It is trite law that if the past record is to be held against the workman as an aggravating circumstance, the workman must be put on notice prior to the discharge or dismissal. The workman must be given an opportunity to show cause against the consideration of the alleged aggravating circumstances. The Courts below have concurrently held that the dismissal of the workman is legal victimization, and I see no reason to take a different view. The misconduct held proved is that the workman placed the tubes not on the table but on the ground, and when questioned, abused and threatened Mukesh Batham. The nature of the abuses is not spelt out. The misconduct held proved is that the workman placed the tubes not on the table but on the ground, and when questioned, abused and threatened Mukesh Batham. The nature of the abuses is not spelt out. The words which are attributed to the workman are not threatening and all that can be said is that behaviour may have been inappropriate. The workman is suitably punished since the back wages are restricted to 25% which is a substantial monetary loss. 16. Before I articulate the conclusion, the other decisions pressed in service by the learned counsel Shri R.B. Puranik need consideration. Shri R.B. Puranik invited my attention to Bharat Forge Co. Ltd. vs. Uttam Manohar Nakate, (2005) 2 SCC 489 . Shri R.P. Puranik would strenuously submit that Bharat Forge Co. Ltd has distinguished Colour-Chem Ltd. Shri R.B. Puranik, has invited my attention to the following observations in Bharat Forge Co. Limited: “26. We have noticed hereinbefore that all the courts have answered the question as regard commission of misconduct by the Respondent in one voice. The Labour Court evidently had taken recourse to Clause (g) of Item 1 of Schedule IV of the Act which ex facie was inapplicable. The said provision clearly postulates two situations, namely, (i) the misconduct should be of minor or technical character and (ii) the punishment is a shockingly disproportionate without having any regard to the nature of the particular misconduct or the past record of service of the employee. The past record of service, therefore, is a relevant factor for considering as to whether the punishment imposed upon the delinquent employee is shockingly disproportionate or not. As has been noticed hereinbefore, before the learned Single Judge an attempt on the part of the Respondent to take recourse to Clause (b) of Item (1) of Schedule IV failed. In absence of any plea of factual victimization and furthermore in absence of any foundational fact having been laid down for arriving at a conclusion of the legal victimization, in our opinion, the Division Bench committed a manifest error in invoking Clause (a) thereof. 27. The Division Bench, thus, was not correct in relying on Colour-Chem Ltd. and failed to notice the distinguishing features thereof. A decision, as is well-known, is an authority of what it decides and not what can logically be deduced therefrom. Cement Corporation of India Ltd. vs. Purya, (2004) 8 SCC 270 . 27. The Division Bench, thus, was not correct in relying on Colour-Chem Ltd. and failed to notice the distinguishing features thereof. A decision, as is well-known, is an authority of what it decides and not what can logically be deduced therefrom. Cement Corporation of India Ltd. vs. Purya, (2004) 8 SCC 270 . 28. In Bhagubhai Balubhai Patel, this court observed: “In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimization as a defence will fall flat. This is why once, in the opinion of the tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the tribunal on merits, the plea of victimization will not carry the case of the employee any further. A proved misconduct is antithesis of victimization as understood in industrial relations. This is not to say that the tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimization.” 17. In Bharat Forge Co. Ltd, the Hon’ble Apex Court has undoubtedly observed that in absence of any plea of factual victimization and in the absence of any foundational fact having been laid down for arriving at a conclusion of legal victimization, the High Court committed an error in invoking clause (a) of Item 1 of Schedule IV. Notably, in Bharat Forge Co. Ltd. the Hon’ble Apex Court further observed that if the punishment is harsh, a lesser punishment may be imposed, however, such substitution cannot be on irrational or extraneous factors and certainly cannot be on a compassionate ground. 18. Paragraphs 31 and 32 in Bharat Forge Co. Ltd. read thus: “31. If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on an irrational or extraneous factor and certainly not on a compassionate ground. 32. In Regional Manager, Rajasthan State Road Transport Corporation vs. Sohan Lal, (2004) 8 SCC 218 , it has been held that it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless it is wholly disproportionate to the misconduct proved. Such is not the case herein. 32. In Regional Manager, Rajasthan State Road Transport Corporation vs. Sohan Lal, (2004) 8 SCC 218 , it has been held that it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless it is wholly disproportionate to the misconduct proved. Such is not the case herein. In the facts and circumstances of the case and having regard to the past conduct of the Respondent as also his conduct during the domestic enquiry proceeding, we cannot say that the quantum of punishment imposed upon the Respondent was wholly disproportionate to his act of misconduct or otherwise arbitrary.” 19. In my considered view, the decision in Bharat Forge Co. Ltd. cannot be understood as laying down that even if the punishment is shockingly disproportionate to the proved misconduct, the Labour or the Industrial Court is denuded of the power to interfere with the punishment on the premise that there is no specific pleadings that the dismissal is factual or legal victimization. Au contraire, Bharat Forge Co. Ltd recognizes that the disproportionality of the punishment would cloth the Court with power to substitute the punishment and the only rider is that such power must be used on rational considerations and the Court must not be swayed by misplaced sympathy. 20. Shri R.B. Puranik, the learned counsel has also relied on Messrs Bharat Iron Works vs. Bhagubhai Balubhai Patel and Others, (1976) 1 SCC 518 to buttress the submission that if the actual fault or guilt meriting the punishment is established, such action cannot be branded as victimization. Shri R.B. Puranik, would refer to the following passages in the said decision: “8. Ordinarily a person is victimised, if he is made a victim or a scapegoat and is subjected to persecution, prosecution or punishment for no real fault or guilt of his own, in the manner, as it were, of a sacrificial victim. It is, therefore, manifest that if actual fault or guilt meriting the punishment is established, such action will be rid of the taint of victimization.” “12. Again victimisation must be directly connected with the activities of the concerned employee inevitably leading to the penal action without the necessary proof of a valid charge against him. It is, therefore, manifest that if actual fault or guilt meriting the punishment is established, such action will be rid of the taint of victimization.” “12. Again victimisation must be directly connected with the activities of the concerned employee inevitably leading to the penal action without the necessary proof of a valid charge against him. The question to be asked is the reason for the punishment attributable to a gross misconduct about which there is no doubt or to his particular trade union activity which is frowned upon by the employer? To take an example, suppose there is a tense atmosphere prevailing in a company because of a strike consequent upon raising of certain demands by the union, each party calling the other highly unreasonable or even provocative, the Tribunal will not readily accept a plea of victimisation as answer to a gross misconduct even when an employee, be he an active office bearer of the union, commits assault, let us say, upon the Manager, and there is reliable legal evidence to that effect. In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimisation as a defence will fall flat. This is why once, in the opinion of the Tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the Tribunal on merits, the plea of victimisation will not carry the case of the employee any further. A proved misconduct is antithesis of victimisation as understood in industrial relations. This is not to say that the Tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimisation.” 21. Messrs Bharat Iron Works is duly considered in Colour-Chem Ltd . Colour-Chem Ltd. which is a decision by three judges Bench which interprets and explains the contours of clause (a) of Item I Schedule IV of the Act. In Colour Chem Ltd. the three judges Bench clearly articulated that even if the misconduct of sleeping on duty is considered a major misconduct, looking to the past record of the service of the delinquent, no reasonable employer could have imposed punishment of dismissal. In Colour Chem Ltd. the three judges Bench clearly articulated that even if the misconduct of sleeping on duty is considered a major misconduct, looking to the past record of the service of the delinquent, no reasonable employer could have imposed punishment of dismissal. If the punishment patently appears to be grossly disproportionate to the nature of the charges held proved, clause (a) of Item 1 of Schedule IV of the Act come into play since imposition of unreasonable punishment would amount to victimization. In Colour-Chem Ltd, the Hon’ble Apex Court explained the distinction between factual victimization and legal victimization. Factual victimization may comprise various acts of the employer which are actuated to punishing an employee for reasons extraneous. In Colour-Chem Ltd. it was emphasized that clause (a) of Item 1 of Schedule IV is not restricted to factual victimization and that there could be in addition legal victimization which is referred to and explained in Hind Construction & Engineer Co. Ltd. vs. Workmen, AIR 1965 SC 917 . Observing thus, Colour Chem Ltd holds that if the punishment of dismissal or discharge is found shockingly disproportionate by the court regard being had to the particular major misconduct and the past service record of the delinquent or is such as no reasonable employer could ever impose in like circumstances, the punishment would be legal victimization independent of factual victimization. 22. In the facts of the present case, the pleading is that the workman is dismissed since he deposed in favour of a colleague in the Departmental Enquiry. It is further pleaded that the punishment is shockingly disproportionate. Both the Courts have accepted the contention of the workman that the punishment is shockingly disproportionate to the proved misconduct. 23. I am not persuaded to accept the submission that the ratio of the three judges decision in Colour-Chem Ltd. is in any manner, diluted by the two judges decision in Bharat Forge Co. Ltd. In my considered view, the imposition of unreasonable punishment or a punishment which is shockingly disproportionate would amount to legal victimization and the provisions of clause (a) of Item 1 of Schedule IV would come into play. Ltd. In my considered view, the imposition of unreasonable punishment or a punishment which is shockingly disproportionate would amount to legal victimization and the provisions of clause (a) of Item 1 of Schedule IV would come into play. In the light of the discussion supra, I am not inclined to interfere with concurrent orders of the Labour and the Industrial Court, since the concurrent view does not suffer from any error and in any event such error, as would impel me to exercise writ jurisdiction. 24. The petition is amended to bring on record that the establishment of the petitioner closed down permanently w.e.f. 1.2.2019. This averment is not controverted. In this view of the matter, the workman shall be entitled to the benefits flowing from the judgment of the Labour Court, till 1.2.2019, which financial benefits shall be paid to the workman within three months. 25. Rule is discharged.