1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2742 of 2001(M/S) (Old no. 28359/2000) Ravindra Sharma ………… Petitioner Versus Labour Court and Others ………… Respondents Hon’ble Tarun Agarwala, J. Heard Mr. Sharad Sharma, the learned Senior Advocate assisted by Mr. Kamlesh Lohani, the learned counsel for the petitioner and Mr. Vijay Bahadur Singh, the learned Senior Advocate assisted by Mr. Vijay Sinha and Mr. T.A.Khan, the learned counsel for the respondents. The petitioner has assailed the validity and legality of the award passed by the Labour Court declining to allow the claim of the petitioner. The brief facts leading to the filing of the writ petition is, that the petitioner is a workman and is also a Trade Union Leader and, in furtherance to his union leadership espousing the cause of the workers, the workman barged into the personnel department of the factory unauthorisedly alongwith his cronies shouting and abusing the management at the top of his voice. It is alleged that he not only abused in filthy language to the officers but forcibly tried to snatch the papers relating to the applications being invited for appointment on an ad hoc basis. When this did not succeed, the petitioner is alleged to have abused in a filthy language to the officers concerned and disrupted the production work, which was going on. As a result of this, all production and industrial activity stopped from 11 a.m. to 12.30 p.m.. On account of this misconduct, a charge-sheet was issued to the petitioner to show cause as to why the disciplinary 2 proceedings should not be initiated against him. The petitioner submitted a reply and since the reply was not found satisfactory, a departmental enquiry was initiated and an Enquiry officer was appointed to conduct the enquiry. The petitioner submitted his reply to the charges and defended himself in the enquiry proceedings. Full opportunity was given to the petitioner to defend himself and to cross-examine the witnesses of the management. Eventually, the Enquiry Officer submitted a report in which he gave a categorical finding that the charges leveled against the workman stood proved. Based on the findings given by the Enquiry Officer, the disciplinary Authority issued a show cause notice. It is alleged that contents of the show cause notice was read by the workman but, thereafter he gave it back and refused to acknowledge the receipt of the show cause notice. It is alleged that consequently, the management sent the show cause notice by registered post at the last known address given by the workman. The Disciplinary Authority, after considering the material evidence that has been brought on record passed an order of dismissal dated 4th March, 1997. The petitioner, being aggrieved by the order of termination raised an industrial dispute, which was referred to the Labour Court for adjudication. The terms of the reference order was somewhat like this. “ Whether the employer was justified in dismissing the services of the petitioner w. e. f. 4.3.1997? If not to what relief the workman entitled to before the Labour Court.” The petitioner questioned the legality of the domestic enquiry proceedings. The Labour Court, after considering the material evidence on record, concluded that the enquiry was conducted in accordance with the principle of natural justice and that the enquiry was fair and proper and 3 that the full opportunity was given to the workman to defend himself. The Labour Court also found that the charges leveled against the workman stood proved and that the finding of the Enquiry Officer was based on cogent evidence that was brought before it. In the light of the finding that the charges stood proved against the workman and that the domestic enquiry was conducted in accordance with the principles of natural justice, the Labour Court considered the quantum of punishment that was awarded to the workman in terms of the provision of Section 6(2-A) of the U.P. Industrial Disputes Act, which is pari materia of the Section 11-A of the Industrial Disputes Act. The Labour Court, after considering the matter held that the workman had misused his position as a Trade Union Leader and had hurled filthy abusive language against the Deputy General Manager and the Administrative Officer in the presence of the subordinate officers and the employees. Consequently, the Labour Court concluded that the punishment of dismissal of the workman was neither disproportionate and the punishment awarded commensurate with the misconduct. The Labour Court, accordingly, declined to grant any relief to the workman. The workman, being aggrieved by the said award, has filed the present writ petition. Mr. Sharad Sharma, the learned Senior Advocate for the petitioner has strongly contended that the Labour Court has not complied with the provision of Section 6(2-A) of the U. P. Industrial Disputes Act and submitted that the Labour Court has not recorded its satisfaction nor recorded any findings on the quantum of punishment awarded to the petitioner, which was imperative and necessary for a proper adjudication of the claim of the petitioner. The learned Senior Advocate further submitted that the punishment awarded did not commensurate the misconduct. The petitioner being a 4 Trade Union Leader had gone to espouse the cause of the workman and in the course of his duty in espousing the cause, if an unparliamentary word was used by the petitioner, the workman should not have been given the maximum punishment of dismissal from service. The learned Senior Advocate submitted that assuming that all the charges leveled against the petitioner stood proved, the award of dismissal from service did not commensurate with the misconduct and was grossly disproportionate and consequently, the Labour Court should have rectified the order of the Management with a lesser penalty. The learned Senior Advocate further submitted that neither a second show cause notice nor opportunity of hearing was provided nor the enquiry report was given by the Disciplinary Authority. The learned Senior Advocate submitted that it is mandatory for the employer to give a second show cause notice as well as a copy of the enquiry report as held in the case of Supreme Court in the case of Managing Director, ECIL, Hyderabad etc.etc. Vs. B. Karunakar, etc.etc.Vs. KarunaKar reported in A.I.R. 1994 S.C. 1074. The learned Senior Advocate submitted that in the absence of non-supply of enquiry report to the petitioner, the order of termination was wholly illegal and was liable to be set aside. On the other hand, the learned Senior Advocate Sri Vijay Bahadur Singh for the Management contended that the petitioner is a workman first and thereafter a Union Leader and that being a Union Leader does not give him an immunity from a disciplinary action nor does it give him any right to abuse an officer of the management in the presence of the employees and the other subordinate staff. The learned Senior Advocate for the Management submitted that the Enquiry officer had proved the misconduct leveled against the petitioner and such misconduct was proved again before the Labour Court. In view of the fact that the misconduct had 5 been proved beyond a reasonable doubt, there was no question for the court to reconsider the quantum of punishment. The learned counsel submitted that in this case, the Labour Court had also considered the matter under Section 6(2-A) of the U.P. Industrial Disputes Act and held that the order of punishment was not disproportionate. The learned Senior Advocate submitted that the Labour Court has considered the behavior of the petitioner against the officers of the management and submitted that such inhuman behavior, using filthy language was by itself sufficient to pass an order of punishment, which was necessary to maintain a discipline in the factory premises. In support of his submission, the learned Senior Advocate placed reliance on certain decisions of the Supreme Court which would be dealt with at the appropriate stage. Having heard the learned counsel for the parties at some length, the ambit of the provision of Section 6(2-A) of the U. P. Industrial Disputes Act, which is pari materia with the Section 11-A of the U.P. Industrial Disputes Act, has been explained by the Supreme Court in the case of Himat Lal K. Shah Vs. Commissioner of Police, Ahmedabad and another reported in (1973) 1 S.C.C. 227. The same principle was subsequently reiterated in L.I.C. of India Vs. R Dhandapani (2006) 13 S.C.C. 613, wherein the Supreme Court held as under; “ The power under Section 11-A has to be exercised judiciously andt the Industrial Tribunal or the Labour Court, as the case may be, is expected to interfere with the decision of the management under Section 11-A of the Act only when it is satisfied that punishment imposed by the management is wholly and shockingly disproportionate to the degree of guilt of the workman concerned. “ 6 The Supreme Court further held that the use of word “disproportionate” and “grossly disproportionate” by itself would not be sufficient and that the Labour Court has to exercise its power judiciously. Similarly in the case of L. K. Verma Vs. HMT Ltd. And another (2006) 2 S.C.C. 269, the Supreme Court held that verbal abuse has been held to be sufficient for inflicting a punishment of dismissal and no case is made out to interfere in the matter. Similar view was taken by the Supreme Court in the case of Mahindra and Mahindra Ltd. Vs. N.B. Naravade etc. 2005(3) S.C.C. 134, in which the Supreme Court held that the discretion which could be exercised by the Labour Court under Section 11A of the Industrial Disputes Act was available only on the existence of certain factors namely, like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which required the reduction of the sentence or the past conduct of the workman which could persuade the Labour Court to reduce the punishment in appropriate matters. The Supreme Court held: “ It is no doubt that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the labour court/Industrial Tribunal interfering with the quantum of punishment awarded by the Management where the concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11 A is available only on the existence of certain factors like punishment being disproportionate to the 7 gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which requires the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11A of the Act and reduce the punishment. As noticed herein above at least in two of the cases cited before us, i.e. Orissa Cement Ltd. (Supra) and New Shorrock Mills (supra), this Court held:” punishment of dismissal for using of abusive language cannot be held to be disproportionate”. In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to herein above.” Similarly in the case of Muriadih Colliery of Bharat Coking Coal Ltd. Vs. Bihar Colliery Kamgar Union through Workmen reported in 2005(3) S.C.C.331, the Supreme Court held that the tribunal should only interfere with such punishment only after keeping in mind the principle of proportionality between the gravity of the offence and the stringency of the punishment. In the light of the aforesaid, the court finds that the punishment awarded is neither disproportionate to the gravity of the misconduct so as to disturb the conscience of the court. There is no mitigating circumstance, which required 8 the court to reduce the quantum of the punishment. It is settled principle that the petitioner is a workman first and thereafter a Union Leader and, being a union leader, he does not enjoy immunity to use filthy language on the officers and staff of the factory. Discipline has to be maintained inside the factory premises during the factory hours. It cannot be said that a Union Leader, who is espousing the cause of its workers, has an inherent right to barge inside the factory premises unauthorisedly. He does not get an indefeasible right to snatch the papers from the officers or abuse them in filthy language in the presence of the subordinates and co-workers. If such an activity is allowed to go undisturbed, it will disturb the peaceful working condition of the company. Using filthy language and bringing the work to a stand still pollutes the working atmosphere bringing loss of man hours and stoppage of production cannot be ignored. Such misconduct is a serious misconduct for which a severe penalty is required to be imposed, and a message has to be sent across, namely, that the management would not tolerate such kind of indiscipline activity inside the factory premises. The Labour court considered such inhuman behavior of the petitioner and found that he had abused the officers of the management in a filthy language in front of the subordinate staff. This court finds that the officers, who were abused, were the Administrative Officer and Deputy General Manager. These officers were humiliated and it was the onerous duty of the management to protect its officers. In such circumstances, the Labour Court had rightly held that the order of dismissal was justified. In the facts and circumstances of the case, the court also finds that the discretion exercised by the Labour Court under Section 6(2-A) was neither perverse nor the punishment awarded was disproportionate with the gravity of misconduct. 9 The contention of the learned counsel for the petitioner that neither a second show cause notice nor the enquiry report was given to the petitioner cannot be considered as a mitigating factor to set aside the order of punishment. The court finds from the pleadings made in the written statement as well as in the order of dismissal that a second show cause notice dated 2nd July, 1996 was given to the petitioner alongwith a copy of the enquiry report, which after perusing was returned without acknowledging the receipt thereof. It has also come on record that the show cause notice was sent by registered post on the address given by the workman, which is in accordance with the principle of natural justice. The fact that the petitioner did not receive the show cause notice or was not supplied a copy of the enquiry report does not mean that the order of dismissal is bad in law. Something further is required to be said at the instance of the workman, namely, as to what prejudice was caused against him for the non-supply of the enquiry report. This court finds from the pleadings of the writ petition that no such pleadings have been taken in the writ petition. In the light of the aforesaid, this court is of the opinion that no prejudice was caused to the petitioner by the non-supply of the enquiry report. In the light of the aforesaid, this court finds that the order of the Labour Court does not suffer from any error of law. The writ petition fails and is dismissed. Parties shall bear their own cost. (Tarun Agarwala, J.) Dated: 11.5.2010 Nishant