Civil Appeal No 1531 of 1980
Appeal by special leave from the judgment and order dated the 9th August 1978 of the Allahabad High Court in CM Writ No6788 of 1978 JK Goel for the Appellant SMarkendeya for Respondent
The order of the Court was delivered by DESAI J Appellant Ramakant Misra joined service in the Kanpur Electric Supply Administration  Administration  for short which was then a Department of the Government of Uttar Pradesh
On the constitution of UP Electricity Board  Board  for short under the provisions of  Act  for short with effect from April 11958 the Kanpur Electric Supply Administration stood transferred to the Board and the employees working in the Administration were deemed to be on deputation to 650 the Board though they would continue to be Government servants as provided in a Circular dated March 13 1959
As per Notification No 3721E74 23P 3 155E174 dated August 3 1974 the posts held formerly in the Administration by the employees working in the Administration were abolished and the deputationists were absorbed in the service of the Board
However before the appellant could be so absorbed he was served with a charge sheet on November 19 1971 alleging that he was guilty of disorderly behaviour punishable under the relevant Standing orders
Simultaneously the appellant was suspended from service pending a departmental inquiry
The inquiry officer who was appointed to hold the inquiry after holding the inquiry recorded his finding that the charge was proved
It would be advantageous to reproduce the charge
It is extracted from the report of the inquiry officer Shri Rama Kant was charged for misconduct under clause 20 9 
18 and 28 of the Standing Orders for disorderly behaviour or conduct likely to cause a breach of peace threatening an employee within the premises and conduct prejudiced to good order and discipline
The specific allegation is that on November 18 1971 around 250 pm appellant was complaining about the deduction that was being made from his wages for his absence from the place of work and late attendance with Shri Mahendra Singh
When Shri Mahendra Singh replied that he had no separate rules for him the appellant is alleged to have lost his balance
The threatening language alleged to have been used by the appellant when freely translated reads Are other persons your father
I will make you forget your high handedness either here or somewhere else
An officer of yesterday s making discloses power consciousness
The inquiry officer held that the words attributed to the appellant were used by him in reference to Shri Mahendra Singh and that use of such language would constitute misconduct within the relevant clauses of the Standing Orders hereinbefore mentioned
The inquiry officer recommended dismissal from service
As the matter was being dealt with on the footing that the appellant was a Government servant entitled to the protection of Article 311 of the Constitution 651 a second show cause notice according to the provisions then contained in article 311 was required to be served before penalty was finally imposed upon him
But even before the notice was served the appellant was dismissed from service on April 6 1972
A dispute having been raised questioning the validity of termination of service of the appellant the 1st respondent made a reference to the Labour Court UP for adjudication of the dispute
The Labour Court by its Award dated March 21 1978 held that the termination of service of the appellant was legal and proper
A petition under Article 227 of the Constitution to the High Court failed
Hence this appeal by special leave
Mr Markandeya learned counsel who appeared for the respondent urged that any person who claims to be a Government employee cannot seek relief both under Article 311 on the footing that he is holding a civil post or is a member of the civil service of the State on the one hand and a workman falling under the purview of the  on the other and that this aspect is being examined by a larger Bench
In this case it is not necessary to resolve the controversy because we requested Mr Markandeya to state specifically whether according to him the appellant on the date of his dismissal was a Government servant governed by article 311 or a workman within the meaning of the 
Mr Markandeya specifically stated and it was also held by the Labour Court though wrongly but which aspect at present is not relevant that the appellant is not a Government Servant holding a civil post or a member of the civil service of the State but that he is a workman entitled to the protection of the 
We are proceeding on that assumption in this case
The charge of which appellant is found guilty is already extracted hereinbefore
It amounts to a riotous or disorderly behaviour during working hours at the establishment
At least this could not be said to be an act subversive of discipline
The misconduct attributed to the appellant is that he used some language unbecoming of a disciplined workman and may have thereby exposed a threatening posture which is alleged to be subversive of discipline
Shorn of all embellishments enraged by deduction from his wages appellant a Joint Secretary of Union of Workmen used some 652 language which can be said to be indiscreet
In order not to minimise the gravity of the charge we have extracted the charge by its free translation and it must be confessed that both the learned counsel who appeared on either side were fully conversant with the Hindi language and therefore clearly understood the import of the language used by the appellant
In the ultimate analysis the mis conduct is use of language indiscreet or may be said to be indecent or may be disclosing a threatening posture
We will proceed on the assumption that use of such language is punishable under the relevant Standing Orders
So what
The punishment must be for misconduct
To some extent misconduct is a civil crime which is visited with civil and pecuniary consequences
In this case it has resulted in dismissal from service
In order to avoid the charge of vindictiveness justice equity and fairplay demand that punishment must always be commensurate with the gravity of the offence charged
In the development of industrial relation norms we have moved far from the days when quantum of punishment was considered a managerial function with the courts having no power to substitute their own decision in place of that of the management
More often the courts found that while the misconduct is proved the punishment was disproportionately heavy
As the situation then stood courts remained powerless and had to be passive sufferers incapable to curing the injustice
Parliament stepped in and enacted section IIA of the which reads as under 11A Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court Tribunal or National or Tribunal for adjudication and in the course of the adjudication proceeding the Labour Court Tribunal or National Tribunal as the case may be is satisfied that the order of discharge or dismissal was not justified it may by its award set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions if any as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require
It is now crystal clear that the Labour Court has the jurisdiction and power to substitute its measure of punishment in 653 place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case
And this Court is at present exercising jurisdiction under article 136 over the decision of the Labour Court
Therefore this Court can examine whether the Labour Court has properly approached the matter for exercising or refusing to exercise its power under section 11A Before we can exercise the discretion conferred by section 11A the Court has to be satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case
These words indicate that even though misconduct is proved and a penalty has to be imposed the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive
As stated earlier it is a well recognised principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be commensurate with the gravity of the offence charged
What has happened here
The appellant was employed since 1957
The alleged misconduct consisting of use of indiscreet or abusive or threatening language occurred on November 18 1971 meaning thereby that he had put in 14 years of service
Appellant was Secretary of the workmen s Union
The respondent management has not shown that there was any blameworthy conduct of the appellant during the period of 14 years  service he rendered prior to the date of misconduct and the misconduct consists of language indiscreet improper or disclosing a threatening posture
When it is said that language discloses a threatening posture it is the subjective conclusion of the person who hears the language because voice modulation of each person in the society differs and indiscreet improper abusive language may show lack of culture but merely the use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct cannot permit an extreme penalty of dismissal from service
Therefore we are satisfied that the order of dismissal was not justified in the facts and circumstances of the case and the Court must interfere
Unfortunately the Labour Court has completely misdirected itself by looking at the dates contrary to record and has landed itself in an unsustainable order
Therefore we are required to interfere
What ought to be the proper punishment in this case  In our 654 opinion in such a situation withholding of two increments with future effect will be more than adequate punishment for such a low paid employee
Accordingly this appeal is allowed and the Award of the Labour Court is set aside as also the penalty imposed by the management is quashed and set aside
The appellant is reinstated with all the benefits including the back wages but his two increments falling due from the date of his termination of service be withheld with future effect
PBR Appeal allowed


Summary:
In order to avoid the charge of vindictiveness justice equity and fairplay demand that punishment must always be commensurate with the gravity of the offence charged
In the development of industrial relation norms law has moved far from the days when quantum of punishment was considered a managerial function with the courts having no power to substitute their own decision in place of that of the management
More often the courts found that while the misconduct was proved the punishment was disproportionately heavy
As the situation then stood courts remained powerless and had to be passive sufferers incapable of curing the injustice
Parliament stepped in and enacted section IIA of the Industrial Disputes Act by which the Labour Court is clothed with jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case
This Court while exercising jurisdiction under Article 136 can examine whether the Labour Court has properly approached the matter in exercising or refusing to exercise its power under section 11A
The words that the court must be satisfied that the order of discharge or dismissal was not justified occurring in section 11A indicate that even though misconduct is proved and a penalty has to be imposed the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive
In the instant case the charge against the appellant workman was that he had used threatening and abusive language against a senior officer unbecoming of a disciplined workman and had adopted a threatening posture subversive of discipline
An inquiry was conducted
On the recommendations of the Inquiry officer the workman was dismissed from service
The Labour Court upheld the order of dismissal and the High Court dismissed the appellant s petition under Article 227
649 On the question whether the order of dismissal was justified on the facts and in the circumstances of the case
 HELD The order of dismissal was not justified
653 A It is a well recognized principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be commensurate with the gravity of the offence charged
653 C D The appellant workman had put in more than 14 years of service and had been the Secretary of the workers  union
The management had not shown that there was any blameworthy conduct on his part during the period of his service
The misconduct alleged against him consisted of use of language which was indiscreet and improper disclosing a threatening posture
653 E F When it is said that his language disclosed a threatening posture it was the subjective conclusion of the person who heard the language because voice modulation of each person in the society differs
Indiscreet improper abusive language may show lack of culture
But mere use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct cannot permit an extreme penalty of dismissal from service
653 F H