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C.A.  No.  4436 of 2010                           - 1-

     IN THE SUPREME COURT OF INDIA    CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4436 OF 2010

NICHOLAS PIRAMAL INDIA LTD.         …APPELLANT

Vs.

HARISINGH                           …RESPONDENT

J U D G M E N T

V. GOPALA GOWDA, J.      This appeal by special leave is directed

against the impugned judgment and order dated

28.4.2009 passed by the High Court of judicature

of Madhya Pradesh at Indore, in Writ Petition

No. 2309 of 2009, whereby the High Court has

affirmed the award dated 27.1.2009 passed by the

NON-REPORTABLE

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C.A.  No.  4436 of 2010                           - 2-

Industrial  Court,  Indore  in  Civil  Appeal  No.

340/MPIR of 2007 which arises out of the Award

dated 29.10.2007 passed by the Labour Court in

Case No. 421/MPIR of 2001.  

2. For the purpose of considering the rival

legal contentions urged on behalf of the parties

in  this  appeal  and  with  a  view  to  find  out

whether this Court is required to interfere with

the  impugned  judgment  and  order  of  the  High

Court, the necessary facts are briefly stated

hereunder:

    The respondent was employed as a workman at

the  drug  manufacturing  unit  of  the

appellant-Nicholas Piramal India Ltd. (for short

“the  Company”),  situated  at  Pithampur,  Madhya

Pradesh. The Company issued two charge sheets

dated  26.2.2000  and  13.3.2000  against  him,

alleging that he has violated and disregarded

the  orders  of  his  senior  officers  and

intentionally slowed down the work under process

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C.A.  No.  4436 of 2010                           - 3-

and made less production by adopting “go slow

work” tactics which is a grave misconduct on the

part  of  the  respondent-workman  under  Clause

12(1)(d)  of  The  M.P.  Industrial  Employment

(Standing Orders) Rules, 1963 (for short “the

SSO”).  The  respondent  denied  the  charges

levelled  against  him  by  the  appellant  and

submitted his reply to the charge-sheets. Not

being  satisfied  with  the  same,  the  domestic

enquiry  proceedings  were  initiated  by  the

disciplinary  authority  against  him.  In  the

domestic  enquiry  proceedings,  the  Inquiry

Officer found the respondent-workman was guilty

of the misconduct after holding that the charges

levelled against him were proved which finding

of  fact  is  recorded  by  him  in  the  enquiry

report. The findings of the Inquiry Officer were

accepted by the Disciplinary Authority of the

appellant-Company and it served the second show

cause  notice  on  the  respondent  on  31.5.2001

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C.A.  No.  4436 of 2010                           - 4-

along with the copy of the enquiry report, the

same did not refer to any of his past service

record.  The  respondent-workman  submitted  his

written  explanation  to  the  second  show  cause

notice,  denying  the  findings  of  the  Inquiry

Officer  by  giving  point  wise  reply  to  the

findings of the enquiry report. On 30.7.2001 an

order  of  dismissal  was  passed  by  the

appellant-Company  dismissing  him  from  his

service,  after  accepting  the  findings  of  the

domestic Inquiry Officer in his report and not

considering the reply of the respondent-workman

to the said show cause notice.  

3. Being  aggrieved  by  the  order  of  dismissal

passed  against  the  respondent-workman  by  the

appellant-Company,  he  raised  an  industrial

dispute  before  the  Labour  Court  by  filing

application No. 421 of 2001 under Section 31(3)

read  with  Sections  61  and  62  of  the  Madhya

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C.A.  No.  4436 of 2010                           - 5-

Pradesh Industrial Relations Act, 1960 (for short

“the M.P.I.R. Act”), questioning the correctness

of the order of dismissal dated 30.7.2001, passed

by  the  Disciplinary  Authority  of  the

appellant-Company from his services and prayed to

set  aside  the  same  and  reinstate  him  in  the

service  to  the  said  post  with  all  the

consequential benefits including back wages.  

4. The Labour Court, on the basis of the rival

legal and factual contentions urged on behalf of

the parties, framed the following issues for its

determination:-

i) Whether  the  domestic  enquiry conducted  against  the  applicant  is illegal,  malafide  and  liable  to  be quashed? ii)Whether the applicant is the guilty of  misconduct  as  described  in  the charge-sheet? iii) Whether  the  applicant  is unemployed  after  termination  of service? iv)Relief and costs.

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C.A.  No.  4436 of 2010                           - 6-

5. The enquiry report was produced before the

Labour  Court  by  the  appellant-Company  and  was

considered  by  it  and  answered  the  preliminary

issue  No.  1,  regarding  the  validity  of  the

domestic enquiry in the affirmative in favour of

the appellant-Company.

 6.  The  Labour  Court,  after  adverting  to  the

relevant Clause 12(1)(d)&(m) of the SSO and on

re-appreciation  of  the  material  evidence  on

record in exercise of its original jurisdiction

examined the correctness of the findings recorded

by the Inquiry Officer on the charges levelled

against  the  workman  which  is  accepted  by  the

Disciplinary Authority and answered issue No. 2

in  the  affirmative  as  well  holding  that  the

alleged misconduct of the workman is proved and

held that the same does not warrant interference

by the Labour Court in exercise of its original

jurisdiction  and  power  conferred  under  Section

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C.A.  No.  4436 of 2010                           - 7-

107  of  M.P.I.R.  Act,  which  is  equivalent  to

Section 11A of the Industrial Disputes Act, 1947

(for  short  “the  I.D.  Act”)  to  substitute  the

punishment of dismissal order passed against the

workman as the charges levelled against him have

been  proved  during  the  enquiry  proceedings  and

the same is held to be valid in law by answering

the preliminary issue regarding the validity of

the domestic enquiry. Further, it has held on the

merits  of  the  case  after  re-appreciation  of

material evidence on record that the penalty of

dismissal  awarded  on  the  respondent-workman  is

legal and valid in law which does not call for

interference by the Labour Court.

The correctness of the same was challenged by

the  respondent-workman  before  the  Industrial

Court  which  is  the  Appellate  Court,  by  filing

C.A. No.275 of 2006. The Appellate Court by its

order dated 22.11.2006 set aside the Award passed

by the Labour Court and remanded the case no. 421

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C.A.  No.  4436 of 2010                           - 8-

of  2001  to  it  for  its  re-consideration.  The

Labour  Court  again   passed  the  award  dated

15.2.2007  after  reconsidering  the  case  as

directed  by  the  Appellate  Court,  in  favour  of

appellant-Company,  holding  that  the  order  of

dismissal passed by the Company does not warrant

interference by it. The correctness of the same

was  again  challenged  by  the  respondent-workman

before the Industrial Court which again remanded

the case to the Labour Court by its order dated

7.8.2007 in C.A. No. 53 of 2007.  

7.  The Labour Court after re-consideration of

the case, has partly allowed the application of

the respondent-workman and set aside the order of

dismissal  dated  30.7.2001  passed  against  the

respondent-workman and the appellant-Company was

directed to reinstate the respondent-workman in

the service with 50% back wages. The Labour Court

however, denied him the remaining 50% back wages,

treating the same as penalty imposed upon him in

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C.A.  No.  4436 of 2010                           - 9-

place of the order of dismissal passed by the

disciplinary authority of the appellant-Company.  

8.   The appellant-Company filed an appeal before

the Industrial Court, questioning the correctness

of the Award passed by the labour Court by filing

C.A. No.340 of 2007 urging certain legal grounds

and  vide  its  order  dated  27.1.2009,  the

Industrial  Court  has  held  that  the  evidence

produced  by  the  appellant-Company  during  the

domestic enquiry does not show that the workman

has made less production intentionally during the

relevant  period  in  respect  of  which  the  two

charge sheets were served upon him. However, the

Industrial Court held that withholding of 50% of

the  back  wages  from  the  respondent-workman  for

the proved misconduct is justified and it found

no  other  reason  for  its  interference  with  the

Award passed by the Labour Court and dismissed

the  appeal  of  the  appellant-Company.  It  has

further held that the order of dismissal passed

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C.A.  No.  4436 of 2010                           - 10-

by the appellant-Company is disproportionate to

the  gravity  of  the  misconduct  of  the

respondent-workman by recording its findings to

that  effect  with  reference  to  the  material

evidence on record and held that the charges are

proved partially by the appellant-Company against

the  respondent-workman  before  the  Inquiry

Officer.

 9.  The  Appellate  Court  examined  the

proportionality of the order of dismissal passed

against  the  respondent-workman  by  the

Disciplinary Authority of the appellant-Company,

after adverting to the judgments of this Court in

the cases of Bharat Heavy Electricals Ltd. v. M.

Chandrasekhar Reddy & Ors.1 and Regional Manager,

U.P.S.R.T.C., Etawah & Ors.  v. Hoti Lal & Anr.2

and held that the charges levelled against the

respondent-workman  only  proved  that  he  has  not

completed the production to the full capacity but 1 (2005) 2 SCC 481 2 (2003) 3 SCC 605

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C.A.  No.  4436 of 2010                           - 11-

the  punishment  order  of  dismissal  from  service

awarded  against  the  respondent-workman  is

disproportionate  to  the  gravity  of  misconduct

committed by the workman. Further, it has opined

that  the  Disciplinary  Authority  could  have

imposed  a  lesser  punishment,  such  as  censure,

withholding of increments or any other fine as

provided  under  Clause  12(3)(a)to(c)  of  the  SSO

upon  the  respondent-workman  for  the  proved

misconduct.  However,  the  employer  has  awarded

severe  punishment  of  dismissal  on  the

respondent-workman  which  is  much  harsher  and

unjustified  in  proportion  to  the  proved

misconduct as it would deprive the livelihood of

the  respondent-workman  and  his  family  members.

Hence, the Labour Court interfered with the same

in exercise of its jurisdiction conferred under

Section 107 of M.P.I.R. Act and held that the

order of dismissal passed against the workman is

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C.A.  No.  4436 of 2010                           - 12-

not  proper  and  the  same  is  liable  to  be  set

aside. Accordingly, the same was set aside.

10.   The Award of reinstatement of the workman

with  50%  back  wages  was  challenged  by  the

appellant-Company  by  filing  the  writ  petition

before the High Court under Article 227 of the

Constitution  of  India,  urging  various  legal

grounds. The High Court, after adverting to the

relevant facts and the findings of fact recorded

in the Awards passed by both the Labour Court and

the  Industrial  Court,  after  examining  the

relevant provisions of the M.P.I.R. Act and the

standing orders and keeping in view the order of

dismissal  passed  against  the  respondent-workman

as punishment under the provisions of the SSO,

has held that the exercise of power under Section

107 of M.P.I.R. Act by both the Labour Court and

the  Appellate  Court  in  substituting  the  lesser

punishment  in  place  of  the  order  of  dismissal

imposed by the Disciplinary Authority is bad in

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C.A.  No.  4436 of 2010                           - 13-

law and it further held that it is not a fit case

for it to interfere with the same and held that

the Labour Court in exercise of its power under

Section 107 of M.P.I.R. Act has got the original

jurisdiction  and  power  to  interfere  with  the

quantum of punishment imposed upon the workman by

the  Disciplinary  Authority  of  the

appellant-Company and the same is concurred with

by  the  Industrial  Court  in  exercise  of  its

Appellate  Jurisdiction  after  re-appreciation  of

evidence on record. Secondly, it has held that

the  charges  levelled  against  the

respondent-workman were partially proved but it

did not call for the appellant-Company to impose

extreme  punishment  by  passing  the  order  of

dismissal against him. Further, looking into the

nature  of  the  charges  and  its  gravity,  the

imposition of punishment of dismissal upon him is

disproportionate to that of the charges levelled

against  the  respondent-workman  which  are

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C.A.  No.  4436 of 2010                           - 14-

partially  proved  and  lastly  producing  less

tablets  by  the  respondent-workman  during  that

particular duration may have been due to several

reasons.  Therefore,  it  was  held  by  the  Labour

Court that the punishment of withholding 50% back

wages  justifies  the  proved  act  of  misconduct

against  the  respondent-workman.  It  has  further

held that the same would be proper, particularly,

having regard to the fact that no past misconduct

of  the  workman  was  relied  upon  by  the

appellant-Company  which  is  one  of  the  relevant

considerations at the time of passing the order

of dismissal against him as per Clause 12(3)(vi)

of  the  SSO  required  to  be  followed  by  the

appellant-Company.  The  correctness  of  the

impugned judgment and the order of the High Court

has  been  questioned  in  this  appeal  by  the

appellant-Company  on  certain  grounds  raising

substantial questions of law.

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11.  It has been contended by Mr. C.U. Singh, the

learned  senior  counsel  on  behalf  of  the

appellant-Company that the charges of misconduct

of “go slow”, for giving less production during

the relevant period of time as mentioned in the

charge-sheets  has  been  proved  in  the  domestic

enquiry against the respondent-workman. Further,

he has urged that the same is a grave misconduct

on  the  part  of  the  respondent-workman  which

warranted  an  order  of  dismissal  to  be  imposed

upon him by the appellant-Company in view of his

past service record as mentioned in the order of

dismissal.  Further,  it  is  contended  that  the

order  of  dismissal  was  passed  after  holding

domestic enquiry as provided under the SSO and in

compliance  with  the  principles  of  natural

justice.  

12.   The  learned  senior  counsel  has  further

contended that the charge sheets issued against

the  respondent-workman  would  show  that  he  has

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C.A.  No.  4436 of 2010                           - 16-

disobeyed  the  orders  of  his  superiors  and

wilfully  slowed  down  the  performance  of  work

which  is  a  grave  misconduct  for  which  the

disciplinary proceedings were initiated and the

domestic  enquiry  was  conducted  against  the

respondent-workman  after  giving  him  an

opportunity  in  accordance  with  the  relevant

provisions of the SSO and the second show cause

notice  was  issued  to  him  in  this  regard.

Thereafter, not being satisfied with his reply to

the  second  show  cause  notice,  the  order  of

dismissal was passed against the workman by the

appellant-Company as it is major misconduct under

Clause  12(3)(b)(vi)  of  the  SSO  and  therefore,

such a major penalty imposed upon him is legal

and  valid  and  the  same  could  not  have  been

interfered with by the Labour Court.

13.   He has further placed reliance upon the

findings recorded in the report by the Inquiry

Officer on the basis of the evidence adduced by

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both  the  employer  and  the  defence  witnesses,

namely, co-employees, DW-1 and DW-3. He has also

contended that during the relevant period of time

the  less  production  of  tablets  by  the

respondent-workman  is  a  clear  case  of  wilful

slowing down of work which is a grave misconduct

on the part of the workman which warranted an

order  of  dismissal  passed  against  him  by  the

Disciplinary Authority of the appellant-Company.  

14.   He has further contended that the finding

of the Labour Court that the respondent has not

worked to his full capacity in the establishment

of  the  appellant-Company  and  holding  that  the

order of his dismissal from the service by the

appellant-Company  is  not  justified,  is  an

erroneous finding of fact as the same is contrary

to  the  material  evidence  produced  on  record,

particularly,  the  evidence  adduced  before  the

Inquiry Officer and the evidence of the defence

witnesses DW-1 and DW-3 who have spoken about the

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wilful  go  slow  by  the  respondent-workman  in

producing the tablets for the appellant-Company.

Therefore,  the  finding  recorded  by  the  Labour

Court on the misconduct by the respondent-workman

is erroneous in law as the same is contrary to

the legal evidence and no reasonable person could

have  arrived  at  such  a  conclusion.  Hence,  the

Labour Court has erred in law in holding that the

charges  are  partially  proved  against  the

respondent-workman even after two remand orders

were passed by the Industrial Court in recording

the aforesaid finding on the charges in favour of

the respondent-workman and the exercise of power

by  the  Labour  Court  under  Section  107  of  the

M.P.I.R. Act is vitiated in law as the same is

contrary to the judgment of this Court in the

case of  Bharat Sugar Mills Ltd.  v. Jai Singh &

Ors.3 wherein this Court has held that the charge

of wilful go slow in producing less production on

3 (1962) 3 SCR 684

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the part of the workman is a grave misconduct

which warrants order of dismissal passed against

the workman.

15.  The learned senior counsel, Mr. C.U. Singh,

has further contended that the finding recorded

by the Labour Court at para 20 of the Award dated

29.10.2007 passed by it, wherein it is held that

the order of dismissal of the respondent-workman

from the service is disproportionate with respect

to the gravity of the proved misconduct, is once

again an erroneous finding and therefore, it is

unsustainable  in  law.  The  same  was  erroneously

endorsed  by  both  the  Industrial  Court  and  the

High  Court  as  they  have  declined  to  exercise

their appellate jurisdiction and therefore, the

same requires to be corrected by this Court in

exercise  of  its  appellate  jurisdiction  in  this

Appeal.

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16.  It has been further contended by the learned

senior counsel for the appellant-Company that the

Labour Court has erred in awarding 50% back wages by passing an award of reinstatement and setting

aside the order of dismissal by holding that the

order of dismissal is disproportionate, without

there being any plea or evidence adduced by the

workman in this regard.  

17.  On the other hand, Mr. Niraj Sharma, the

learned  counsel  on  behalf  of  the

respondent-workman  has  vehemently  sought  to

justify the findings and reasons recorded by the

Labour Court on the contentious issue No. 2 in

exercise of its power under Section 107 of the

M.P.I.R. Act and has contended that the Labour

Court  on  re-appreciation  of  evidence  on  record

has held that the imposition of the major penalty

of dismissal is disproportionate to the gravity

of the misconduct that was partially proved and

the  same  has  been  rightly  interfered  with  by

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applying the decision referred to in the judgment

passed by the Labour Court, as the same is in

accordance with law as laid down by this Court in

Raghubir  Singh  v. General  Manager,  Haryana

Roadways,  Hissar4 and  Jitendra  Singh  Rathor  v.

Baidyanath Ayurved Bhawan Ltd. & Anr.5  wherein

this Court has held that the denial of back wages

to the workman itself is an adequate punishment

for the proved misconduct against him.  

18.  It has been further contended by him that

the  statutory  duty  cast  upon  the  Disciplinary

Authority  under  Clause  12(3)(c)  of  the  SSO

requires  it  to  take  into  consideration  the

gravity of the misconduct, the previous record of

the  workman  and  any  other  extenuating  or

aggravating circumstances at the time of passing

an order of dismissal. In the present case, the

appellant-Company  has  not  notified  the  workman

about any of his past record in the show cause 4 (2014) 10 SCC 301 5 (1984) 3 SCC 5

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notice as required in law as per the Constitution

Bench decision of this Court in the case of State

of Mysore v. K. Manche Gowda6.

 19.  Further,  there  are  no  extenuating  and

aggravating  circumstances  existing  against  the

workman  which  would  lead  to  the  imposition  of

major  or  extreme  penalty  of  dismissal  by  the

appellant-Company.  Therefore,  there  is  a

violation of statutory duty on the part of the

Disciplinary Authority of the appellant-Company.

This  important  aspect  of  the  case  has  been

rightly considered by both the Labour Court and

the  Industrial  Court  therefore,  the  same  has

rightly  not  been  interfered  with  by  the  High

Court  in  exercise  of  its  supervisory

jurisdiction.  Therefore,  he  has  submitted  that

the same does not call for interference by this

Court.  

6 (1964) 4 SCR 540

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20.  He  has  further  contended  that  concurrent finding  of  fact  recorded  by  the  fact  finding

courts need not be interfered with by this Court

in exercise of its appellate jurisdiction in view

of  the  fact  that  the  Labour  Court  and  the

Industrial  Court  on  re-appreciation  of  the

evidence on record and by placing reliance upon

the  judgments  referred  to  in  the  impugned

judgment and Award, have held that the dismissal

of the respondent-workman from the service in the

Company of the appellant for the partially proved

misconduct  is  contrary  to  the  punishment

enumerated under Clause 12(3)(b)(i)to(v) of the

SSO, which provides punishment of censures, fine,

etc.  for  major  misconduct.  The  dismissal

enumerated  under  Clause  12(3)(vi)  of  the

aforesaid SSO, should not have been imposed by

the Disciplinary Authority of the Company, in the

fact  situation  of  the  present  case  and  the

concurrent view of the fact finding courts which

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has also been concurred with by the High Court in

exercise of its supervisory jurisdiction and it

has rightly held that it is legal and valid and

does not require the interference of this Court.

21. He  has  also  contended  before  the  Labour

Court that the finding recorded by the Inquiry

Officer in his enquiry report, which is accepted

by  the  Disciplinary  Authority,  is  erroneous  in

law as there is no material evidence on record

against  the  respondent-workman  by  the

appellant-Company to prove the charge that he had

intentionally  adopted  “go  slow”  work  for  the

period  mentioned  in  the  charge-sheets.  The

Disciplinary  Authority  has  not  taken  into

consideration  the  past  service  record  and

extenuating and mitigating circumstances at the

time of passing the order of dismissal, keeping

in view the relevant provisions of the SSO Clause

12(3)(a)&(b).  Therefore,  the  courts  have

repeatedly  held  that  the  order  of  dismissal

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C.A.  No.  4436 of 2010                           - 25-

passed against the respondent-workman is illegal

and improper and against the provisions of the

SSO  and  the  principles  of  natural  justice.

Therefore,  it  is  claimed  that  the

respondent-workman is entitled for reinstatement

with consequential benefits after setting aside

the order of dismissal passed by the Disciplinary

Authority of the appellant-Company against him.

22.  With reference to the aforesaid rival legal

contentions urged on behalf of the parties and

the  evidence  on  record,  we  have  carefully

examined the following points to find out as to

whether the impugned judgment and Award warrant

interference in this appeal :-

(i)  Whether the concurrent finding of facts recorded by the High Court in not interfering  with  the  order  of  the Industrial  Court  in  directing  the appellant-Company to reinstate and pay

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50%  back  wages  to  the respondent-workman is legal and valid? (ii) What order?  

23.   The first point is required to be answered

in  favour  of  the  respondent-workman  for  the

following reasons:-

     The Labour Court at the first instance has

erroneously failed to exercise its jurisdiction

by  not  re-appreciating  the  evidence  on  record

after  holding  that  the  preliminary  issue

regarding the domestic enquiry conducted by the

appellant-Company  is  legal  and  valid.  The  said

erroneous  finding  was  challenged  by  the

respondent-workman in the Appellate Court after

two remand orders were passed by the Industrial

Court. Ultimately, the Labour Court has exercised

its  jurisdiction  and  on  re-appreciation  of  the

facts  and  the  evidence  on  record  and  in

accordance with the decision of this Court in The

Workmen of M/s. Firestone Tyre & Rubber Company

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C.A.  No.  4436 of 2010                           - 27-

of India (P) Ltd. v. The Management and Ors.7, it

has found fault with the findings of the Inquiry

Officer  which  was  endorsed  by  the  Disciplinary

Authority  which  has  erroneously  held  that  the

workman was guilty of the misconduct. The Labour

Court  after  the  two  remand  orders  has  rightly

come to the conclusion on re-appreciation of the

evidence  on  record  and  held  that  the  charge

levelled  against  the  respondent  is  partially

proved  and  even  then  the  order  of  dismissal

imposed upon him by the Disciplinary Authority,

has  been  done  without  notifying  the

respondent-workman about his past service record,

as required under Clause 12(3)(b)&(c) of the SSO,

which aspect is rightly noticed and answered by

the Labour Court at para 20 of its Award dated

29.10.2007. Thus, the order of dismissal of the

workman from the service is disproportionate and

severe to the gravity of the misconduct. The same

7 AIR  (1973) SC 1227

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has been laid down by this Court in the case of

Raghubir  Singh  v.  Haryana  Roadways (supra),

wherein this Court has held thus:-

“39. The  above  said  “Doctrine  of Proportionality” should be applied to the fact situation as we are of the firm view that the order of termination, even if we accept  the  same  is  justified,  it  is disproportionate  to  the  gravity  of misconduct.  In  this  regard,  it  would  be appropriate  for  us  to  refer  to  certain paragraphs from the decision of this Court in Om Kumar v. Union of India, wherein it was held as under: (SCC pp. 410-11, paras 66-68)

“66. It is clear from the above discussion  that  in  India  where administrative  action  is challenged  under  Article  14  as being  discriminatory,  equals  are treated unequally or unequals are treated equally, the question is for the constitutional courts as primary  reviewing  courts  to consider correctness of the level of  discrimination  applied  and whether  it  is  excessive  and whether it has a nexus with the objective intended to be achieved by  the  administrator.  Hence  the court deals with the merits of the balancing  action  of  the administrator and is, in essence, applying ‘proportionality’ and is a primary reviewing authority.

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C.A.  No.  4436 of 2010                           - 29-

67.  But  where  an  administrative action  is  challenged  as ‘arbitrary’  under  Article  14  on the basis of Royappa (as in cases where punishments in disciplinary cases  are  challenged),  the question  will  be  whether  the administrative order is ‘rational’ or ‘reasonable’ and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration  or  has  taken irrelevant  factors  into consideration or whether his view is one which no reasonable person could  have  taken.  If  his  action does not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan v. Jalgaon Municipal Council.]  Venkatachaliah,  J.  (as he  then  was)  pointed  out  that ‘reasonableness’  of  the administrator under Article 14 in the context of administrative law has  to  be  judged  from  the standpoint of Wednesbury rules. In Tata  Cellular v.  Union  of  India (SCC  at  pp.  679-80),  Indian Express Newspapers Bombay (P) Ltd. v.  Union of India,  Supreme Court Employees’ Welfare Assn. v. Union of  India  and  U.P.  Financial Corpn. v. Gem Cap (India) (P) Ltd. while  judging  whether  the administrative  action  is

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C.A.  No.  4436 of 2010                           - 30-

‘arbitrary’ under Article 14 (i.e. otherwise  then  being discriminatory),  this  Court  has confined  itself  to  a  Wednesbury review always.

68.  Thus,  when  administrative action  is  attacked  as discriminatory  under  Article  14, the principle of primary review is for  the  courts  by  applying proportionality.  However,  where administrative  action  is questioned  as  ‘arbitrary’  under Article  14,  the  principle  of secondary  review  based  on Wednesbury principles applies.”

40. Additionally, the proportionality and punishment  in  service  law  has  been discussed by this Court in  Om Kumar case as follows:  

“69. The principles explained in the  last  preceding  paragraph  in respect of Article 14 are now to be applied here where the question of ‘arbitrariness’ of the order of punishment  is  questioned  under Article 14. 70. In this context, we shall only refer  to  these  cases.  In  Ranjit Thakur v.  Union  of  India,  this Court  referred  to ‘proportionality’  in  the quantum of  punishment  but  the  Court observed that the punishment was ‘shockingly’  disproportionate  to the  misconduct  proved.  In  B.C. Chaturvedi v. Union of India, this

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C.A.  No.  4436 of 2010                           - 31-

Court stated that the Court will not  interfere  unless  the punishment awarded was one which shocked  the  conscience  of  the court. Even then, the court would remit  the  matter  back  to  the authority and would not normally substitute one punishment for the other.  However,  in  rare situations, the court could award an  alternative  penalty.  It  was also so stated in Ganayutham.””

Further, in the case of State of Mysore  v. K.

Manche Gowda (supra), this Court has held thus:- “8…….It is suggested that the past record of a government servant, if it is intended to  be  relied  upon  for  imposing  a punishment, should be made specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied  upon  after  the  enquiry  is  closed and  the  report  is  submitted  to  the authority  entitled  to  impose  the punishment.  An  enquiry  against  a government  servant  is  one  continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature  and  the  final  authority  which scrutinizes it and imposes punishment is the  authority  empowered  to  impose  the same.  Whether  a  particular  person  has  a reasonable opportunity or not depends, to some  extent,  upon  the  nature  of  the subject-matter of the enquiry. But it is not  necessary  in  this  case  to  decide whether such previous record can be made

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the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents  the  punishing  authority  from taking that fact into consideration during the  second  stage  of  the  enquiry,  for essentially it relates more to the domain of  punishment  rather  than  to  that  of guilt. But what is essential is that the government  servant  shall  be  given  a reasonable opportunity to know that fact and meet the same.”

24.  Further, the Labour Court after adverting to

the judgments of this Court referred to supra has

rightly held that the punishment of dismissal is

disproportionate and interfered with the same by

imposing the lesser punishment of denial of 50%

back wages with reinstatement and the same has

been examined and rightly upheld by the Appellate

Court  and  the  High  Court  in  exercise  of  its

judicial review power under Article 227 of the

Constitution of India.

25.  Having  regard  to  the  nature  of  judicial

review power conferred upon the High Court, it

has rightly accepted the impugned Award passed by

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C.A.  No.  4436 of 2010                           - 33-

the  Labour  Court  which  is  affirmed  by  the

Appellate  Court  by  recording  valid  and  cogent

reasons in the impugned Award/judgment. The same

can neither be termed as erroneous nor error in

law.

 26.  The workman’s wilful disobedience of lawful

or reasonable order under Clause 12(1)(d) of the

SSO  and  the  wilful  slowing  down  of  the  work

performance by him has been held to be partially

proved. Therefore, the Labour Court has imposed a

lesser  punishment  as  against  the  order  of

dismissal  in  exercise  of  its  original

jurisdiction and power under Section 107 of the

M.P.I.R.  Act  as  the  Disciplinary  Authority  has

failed to give any valid reasons for not imposing

any  one  of  the  lesser  punishments  as  provided

under Clause 12 (3)(b)(i) to (v) of SSO. Hence,

the denial of 50% back wages to the workman by

the Labour Court is itself a punishment imposed

upon the workman as held by this Court in the

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case of Jitendra Singh Rathor (supra), upon which

reliance has been rightly placed by the learned

counsel  for  the  respondent-  workman.  The

contention  urged  on  behalf  of  the

appellant-Company that the award of back wages in

the  absence  of  any  plea  and  evidence  by  the

respondent-workman  that  he  was  not  gainfully

employed cannot be accepted by us in view of the

decision in the case of Deepali Gundu Surwase v.

Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) &

Ors8. delivered by this Court to which one of us,

(Justice  V.  Gopala  Gowda),  is  a  party  to  the

judgment.   

27.  For the reasons stated supra, we do not find

any good reason to interfere with the impugned

judgment and Awards of the High Court as well as

the  Appellate  Court  and  the  Labour  Court.  The

appeal  is  devoid  of  merit  and  is  accordingly

8 (2013)  10  SCC 324

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C.A.  No.  4436 of 2010                           - 35-

dismissed.  The  order  dated  28.8.2009  granting

stay of the impugned order shall stand vacated.

Since,  the  matter  has  been  pending  before

various courts for the last 14 years, we direct

the  appellant-Company  to  reinstate  the  workman

within 4 weeks from the date of receipt of the

copy of this judgment and compute 50% back wages

payable to him from the date of his dismissal

from the service till the date of passing of the

Award, as per the periodical revision of the same

and pay full salary from the date of the passing

of the Award till the date of reinstatement.     

              ……………………………………………………………J.

                         [V.GOPALA GOWDA]

 ……………………………………………………………J.                           [C. NAGAPPAN]

New Delhi, April 30, 2015