NICHOLAS PIRAMAL INDIA LTD. Vs HARISINGH
Bench: V. GOPALA GOWDA,C. NAGAPPAN
Case number: C.A. No.-004436-004436 / 2010
Diary number: 21953 / 2009
Advocates: GOPAL SINGH Vs
NIRAJ SHARMA
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 19
Page 20
Page 21
Page 22
Page 23
Page 24
Page 25
Page 26
Page 27
Page 28
Page 29
Page 30
Page 31
Page 32
Page 33
Page 34
Page 35
Page 1
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
Page 2
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
Page 3
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
Page 4
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
Page 5
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.
Page 6
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
Page 7
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
Page 8
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
Page 9
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
Page 10
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
Page 11
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
Page 12
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
Page 13
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
Page 14
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.
Page 15
C.A. No. 4436 of 2010 - 15-
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
Page 16
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
Page 17
C.A. No. 4436 of 2010 - 17-
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
Page 18
C.A. No. 4436 of 2010 - 18-
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
Page 19
C.A. No. 4436 of 2010 - 19-
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.
Page 20
C.A. No. 4436 of 2010 - 20-
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
Page 21
C.A. No. 4436 of 2010 - 21-
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
Page 22
C.A. No. 4436 of 2010 - 22-
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
Page 23
C.A. No. 4436 of 2010 - 23-
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
Page 24
C.A. No. 4436 of 2010 - 24-
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
Page 25
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
Page 26
C.A. No. 4436 of 2010 - 26-
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
Page 27
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
Page 28
C.A. No. 4436 of 2010 - 28-
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.
Page 29
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
Page 30
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
Page 31
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
Page 32
C.A. No. 4436 of 2010 - 32-
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
Page 33
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
Page 34
C.A. No. 4436 of 2010 - 34-
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
Page 35
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