T.N. TIWARI vs. SAWHNEY RUBBER INDS. ID NO.: 312/2000 28.02.2008 Present : AR for workman AR for management The case was fixed for arguments U/[SECTION] of [ACT] after disposal of enquiry issue. In between AR for workman has moved an application praying for framing of following issues: i) Whether the alleged misconduct against the workman established by the respondent? OPM
ii) If so, whether the punishment to removal from service inflicted upon said workman is commensurate with the misconduct proved against him.
iii) Whether the employer had come to the bonafide conclusion that employee was guilty of misconduct and there was no unfair labour practice and no victimization.
iv)To what relief is the petitioner entitled to in this reference? A direction to lead evidence of proposed issues no. 4&5 was also prayed. Notice of application was issued to the management who has filed its reply today.
I have heard both the ARs at length and perused the record and carefully considered the matter. I have also gone through the case law filed by the parties in support of their contentions.
It is undisputed that vide order dated 18.09.03, following issues were framed:
1. Whether the management conducted unfair and improper domestic enquiry against the claimant, if so, its effect?
2. As per terms of reference.
Both the parties were called upon to adduce evidence on the enquiry issue first. After conclusion of the evidence, arguments were heard and vide order dated 02.01.08, the preliminary issue was disposed of holding that the enquiry conducted by the management was fair and proper. Thereafter the case was posted for arguments U/[SECTION] when the present application was filed.
AR for workman has strenously urged that U/[SECTION] this court can act like an Appellate Court and reappraise the evidence adduced during the enquiry and can decide whether the misconduct against the workman was proved or not and whether the punishment awarded was in commensurate with the misconduct proved and whether there was an unfair labour practice and victimization and finally to what relief the claimant was entitled in the present reference. In support of his contentions, AR for workman relied upon the cases reported as '[PRECEDENT]', '[ENTITY] vs. S.C. Jain, Presiding Officer and another 1993 (66) FLR 303 Delhi High Court' and '[ENTITY] Gupta vs. M/s Delton Cable India (P) Ltd. 1984 (48) FLR 417 (423) SC', '[ENTITY] vs. R.S.R.T. Corporation, Jaipur & others 2003-IV- LLJ (suppl)', '[PRECEDENT]' and also the celebrated judgment of the Apex Court in the case of '[PRECEDENT]'. On perusal of all these authorities, it is noticed that the contentions of Ld. AR for workman are ill- founded and misplaced. As observed earlier , the enquiry issue has already been decided holding the enquiry to be fair and proper. Thereafter the only point to be considered under [ACT] is whether the punishment imposed by the management was proportionate to the gravity of the misconduct charged or not. No doubt U/[SECTION] wide discretion has been vested in the tribunal/labour court in the matter of awarding relief according to circumstances of the case and the court has ample power to decide the question of quantum of punishment. Same has been the law laid down even in the cases relied upon by ld. AR for workman. In Firestone case (Supra), Hon'ble Supreme Court has laid down that earlier after the enquiry had been held fair and proper, tribunal/ labour court had no power to sit over the decision of the management as an Appellate body but after inclusion of [SECTION], the court has power to interfere with the punishment and alter the same as per circumstances of the case. Similarly in case of [PRECEDENT] (Supra) also it was held that the tribunal is now competent to give and impose lesser punishment even if it agrees with the finding of the management as to the guilt of employee. Same was the view of the court in [ENTITY]'s case (Supra) and also in [ENTITY]'s case (Supra) and [ENTITY]'s case (Supra). On the contrary, in the case reported as '[PRECEDENT]' relied upon by AR for management, it has been held by our own Hon'ble High Court that when the domestic enquiry is found to have been properly held neither employer nor employee shall have right to produce further evidence either on point of guilt or on quantum of punishment. In circumstances, I am of the considered view that when the case is already listed for arguments U/[SECTION] of [ACT], no further issues as prayed by AR for workman by way of this application are called for at this stage nor any further evidence can be permitted. The application is devoid of any merit. The same is hereby dismissed. Put up for arguments U/[SECTION] on 20.03.08.
([ENTITY]) ADJ/POLC-I 28.02.08