THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY W.A.Nos. 1081; 1111 and 1127 of 2010 Dated: 27-04-2011 W.A.No. 1081 of 2010 Between: B.R. Adhikari ….Appellant And The Director, M/s. The Techno Elecrics, A unit of Samarakshana Electricals Ltd., Are Wings of Vijai Electricals Limited, Hyderabad and another. ….Respondents. W.A.No.1111 of 2010 The Director, M/s. The Techno Elecrics, A unit of Samarakshana Electricals Ltd., Are Wings of Vijai Electricals Limited, Hyderabad and another. ….Appellant And Addl. Industrial Tribunal-cum-Addl. Labour Court, Hyderabad and another. ….Respondents. W.A.Nos. 1127 of 2010 B.R. Adhikari ….Appellant And The Director, M/s. The Techno Elecrics, A unit of Samarakshana Electricals Ltd., Are Wings of Vijai Electricals Limited, Hyderabad and another. ….Respondents. THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY WRIT APPEAL Nos. 1081, 1111 & 1127 OF 2010 Dated” 27-04-2011 COMMON ORDER : (Per GR,J) These three appeals are directed against the common judgment dated 02–11–2010 in W.P. Nos.12349 and 15817 of 2010. Sri B.R. Adikari (the workman) entered service as a security guard in M/s. Techno Electrics, IDA, Kukatpally (the employer). After a process of domestic inquiry by an order dated 12–12–2007 the workman was dismissed from service, challenging the same he filed I.D.No.104 of 2009 before the Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad (the ‘Industrial Tribunal’). By the award dated 26–03–2010, despite concurring with the findings in the domestic inquiry that the workman was guilty of the charges of misconduct (including insubordination; insult to superiors, disobedience of the lawful and reasonable orders of superiors; failure to carry out work in accordance with specific instructions by the officers of the company; riotous or disorderly behaviour, threatening, intimidating, coercing other employees or interfering with the work of other employees; assault or threat of assault whether provoked or otherwise, within the factory premises having subversive effect on discipline; indecent behaviour and quarrelling inside the factory premises and using defamatory, abusive or indecent language against workers and superiors or other persons; commission of acts subversive of discipline; refusal to accept charge-sheet/order or other communication served in accordance with the conditions of service or in the interest of discipline; quarrelling or abusing or assaulting or threatening any co-worker or superior; and thus committing misconduct), the Industrial Tribunal opined that since there was no charge of misappropriation the punishment of removal from service imposed on the workman was disproportionate to the gravity of the misconduct alleged and found. Accordingly, the Industrial Tribunal reduced the punishment of removal and substituted the same by directing that the workman be appointed afresh without continuity of service, attendant benefits and backwages. W.P. No.12349 of 2010 was filed by the employer challenging the above award of the Industrial Tribunal to the extent the punishment of dismissal was substituted and W.P. No.15817 of 2010 was filed by the workman challenging the award to the extent the Industrial Tribunal directed his appointment afresh without backwages and other attendant benefits. By a common order dated 02–11–2010 two writ petitions were disposed of. The award of the Industrial Tribunal in I.D. No.104 of 2009 was modified and the employer directed to pay an amount of Rs.3,00,000.00 to the workman in full and final settlement of the disputes between them, within four weeks from the date of judgment; of which an amount of Rs.1,00,000.00 was directed to be paid to the respondent and Rs.50,000/- each in the form of fixed deposit receipts, directed to be made-out by the employer for a term of two years and in a Nationalized bank in favour of the wife and three children of the workman; and the workman was held entitled to the provident fund, if any, accrued in his account. Writ Appeal No.1081 of 2010 is an appeal by the employer against the judgment and findings in W.P. No.12349 of 2010 (writ petition by the employer challenging the award); W.A. No.1111 of 2010 is again by the employer and against the judgment insofar as it pertains to the workman’s writ petition No.15817 of 2010; while W.A. No.1127 of 2010 is by the workman party-in-person aggrieved by the judgment insofar as reinstatement as ordered by the Industrial Tribunal was modified and also complaining of the inadequacy of the compensation of Rs.3,00,000.00, awarded by the Learned Single Judge. The order of the employer dismissing the workman dated 12–12-2007 pursuant to which these appeals arise for consideration is not the first point of friction between the parties. In 1987 the workman entered the service of the employer as a security guard. The employer is a company registered under the Companies Act engaged in the business of manufacture of electrical distribution transformers, etc. On allegations of serious misconduct the workman was issued a charge-sheet–cum– suspension order on 09–11–2001. In the domestic inquiry that followed all the charges were proved and by the order dated 30– 03-2002 the employer inflicted the penalty of dismissal from service. Challenging the dismissal the workman filed I.D. No.38 of 2002 before the Industrial Tribunal which by the award dated 10– 09–2004 while upholding the domestic inquiry and concurring with the findings of misconduct recorded therein modified the penalty of dismissal to one of reinstatement afresh without continuity of service or backwages. The employer and the workman filed writ petitions against the award which was dismissed by a common order of a learned single judge. The workman alone preferred an intra-court appeal which was also dismissed. The workman then preferred S.L.P. (Civil) No.2856 of 2009 which was also dismissed by an order dated 13–07–2009, by the Supreme Court. On 09–12–2004 pursuant to an order dated 09–12-2004 appointing the workman afresh he rejoined service on 23–12–2004. After the fresh employment since December, 2004 the employee continued adamant, quarrelsome and indisciplined attitude according to the management; an allegation denied by the workman who asserts to have throughout exhibited exemplary conduct. Be that as it may. On 18–07–2006 there was a quarrel between the workman, Nazeerkhan and G. Chandra Mohan, in which Nazeerkhan sustained injuries and also had to be hospitalized. The employer had also received complaints regarding the conduct of the workman. Eventually, an order of suspension and a charge- sheet dated 07–08–2006 was served on the workman. He did not submit any explanation to the charge-sheet. According to the record of the case the workman refused to receive notices pertaining to the disciplinary inquiry and the employer thereupon issued a paper publication notifying the inquiry, on the directions of the inquiry officer. In the circumstances, an ex parte inquiry was held and witnesses on behalf of the management were examined. The inquiry report found him guilty of the several charges adverted to earlier in this judgment. A show-cause notice dated 28 – 03- 2007 was communicated along with the report of the inquiry. The workman however failed to submit any explanation. Another show-cause notice dated 12–11–2007 intimating a proposal to inflict the penalty of dismissal was communicated to the workman. He submitted the reply dated 16–11–2007. Eventually by the order dated 12–12–2007, the workman was dismissed from service. This order he challenged in I.D. No.104 of 2009. The Industrial Tribunal had earlier concluded that the domestic inquiry was valid and not vitiated by any procedural infirmity. In the award dated 26-03-2010 in I.D. No.104 of 2009 the Industrial Tribunal recorded in sufficient detail the sequence of events discernible from the record of the inquiry on the basis of which the Tribunal concluded that sufficient opportunity was afforded to the workman to participate in the inquiry which he never availed; and that the ex parte domestic inquiry was therefore validly and properly held. In the award dated 26-03-2010 it is clearly recorded that the contention of the workman that he was not given an opportunity to put forth his defence before the inquiry officer and there was thus a violation of principles of natural justice, is misconceived. From an analysis of the record of the domestic inquiry the Industrial Tribunal noted that there was abundant material to disclose (Ex. Nos.M1, M2, M4, M6 & M7) that ample opportunity and intimation of the dates of inquiry were given to the workman. The workman did not dispute receipt of the charge-sheet under Ex. M.7. The quarrel between the petitioner and Nazeer Khan and Chandra Mohan is verified by Ex. M.13, which is the incident report dated 19-07-2006, by the security officer. The security officer under Ex.M.14, dated 24-05- 2006, reported the matter to the superior officer requesting action against the workman. The reiteration by the party-in-person before this Court that the charges were maliciously framed against him by the employer unable to digest his success in the earlier round of litigation; that he was a disciplined and obedient employee; and that he indulged in no misconduct warranting any disciplinary inquiry and consequent punishment is therefore without basis. In the award in I.D. No.104 of 2009 the Industrial Tribunal however interfered with the removal order dated 12-12-2007 passed by the employer solely on the ground that the workman was not guilty of misappropriation of any money and though the conduct of abusing superiors; assaulting co-workers; and disobeying instructions of the superior amounts to indiscipline and misconduct, the penalty of removal from service is shockingly disproportionate to the gravity of the misconduct. On this reasoning the Industrial Tribunal substituted the penalty of removal with that of fresh appointment without continuity of service, attendant benefits and backwages. By the common judgment under appeal the learned Single Judge made several observations, whose relevance, appropriateness and correctness is contested by the employer in Writ Appeal Nos.1081 and 1111 of 2010. The observations, the employer is aggrieved by are: (a) Another important aspect is that the respondent is a migrant from Nepal and he cannot be expected to muster adequate support from the locals, overcoming the might of the petitioner. His allegation that he was singled out and harassed as a measure of retaliation for his approaching the Labour Court challenging the order of dismissal passed earlier, cannot be brushed aside. Therefore, this Court is not in agreement with the finding of the Labour Court, that the domestic enquiry is valid. (b) On behalf of the petitioner, considerable number of precedents were cited before the Labour Court, which are to the effect that acts of indiscipline, and particularly of assault cannot be tolerated. However, before the principle is applied, the Court must be sure, that the allegation in this regard is proved, in accordance with law. It is not at all safe to hold such serious allegations as proved, on the basis of ex parte proceedings. (c) This Court is of the view that the case on hand has several typical features. On the one hand, it cannot be said that the allegations of misconduct against the respondent are without basis and on the other hand, it cannot be said that the findings thereon can be sustained in law. The observations made by this Court in the preceding paragraphs would certainly justify remand of the matter to the Labour Court. However, the plight of the respondent is such that, in the open Court he virtually lamented, that his family is under the verge of starvation. The possibility of directing reinstatement into service was seriously considered. The fact however remains that the respondent was working in the security wing and it is not at all in the interest of the petitioner and the respondent to restore the relationship of employer and employee when the relation between them is so strained for the past one decade. At the same time, the respondent cannot be denied the relief. (d) Faced with this difficulty in striking a balance between the two extreme situations, this Court felt that an order directing payment of a fairly good amount to the respondent, in lieu of reinstatement or fresh appointment, would meet the ends of justice. It is conscious of the fact that, what it proposes to do, does not fully accord with the ordinary course of adjudication of awards passed by the Labour Courts. However, it is felt that, peculiar facts of the case would justify it. (e) Hence, the writ petitions are disposed of, modifying the award passed by the Labour Court, in I.D.No.104 of 2009 to the effect that the petitioner shall pay a sum of Rs.3 lakhs (Three lakhs) to the respondent, in full and final settlement of the dispute between them, within four weeks from today. Out of this amount, Rs.1 lakh (One lakh) shall be paid to the respondent, and Rs.50,000/- (Fifty thousand) each, in the form of F.D.Rs, for a period of two years, taken out in a Nationalised Bank, to the wife and three children of the respondent. The respondent shall be entitled to be paid the provident fund, if any, that has accumulated to his account. Sri Hari Haran, Learned Counsel for the employer strenuously contends that the observations that the finding of the Lower Court holding the domestic inquiry as valid is unsustainable; is misconceived. According to Sri Hari Haran the fact that the workman is a migrant from Nepal and therefore cannot be expected to overtake the might of the employer or that his allegation that he was singled out for harassment in retaliation for his approaching the Labour Court challenging an earlier order of dismissal cannot be brushed aside, are observations which are based on no material. His observations are inconsistent with latter observations of the learned Single Judge : ... It cannot be said that the allegations of misconduct against the respondent are without basis and on the other hand, it cannot be said that the findings thereon can be sustained in law. It is also contended that the observations that it is not at all safe to hold such serious allegations (as the workman was charged with) as proved, on the basis of ex parte proceedings, is a wholly untenable and misconceived observation. There is enough material, clearly recorded by the Industrial Tribunal in the award to establish that the workman failed to avail the substantive and numerous opportunities afforded to him to participate in the inquiry. In such circumstances and when the workman refused to participate in the inquiry even after notice of the inquiry had to be intimated to the workman by paper publication (since he declined to receive notices sent by post) there was no other alternative for the employer but to continue the domestic inquiry ex parte. Sri Hari Haran contends that as apparent from the observations in the judgment under appeal (extracted in ‘c’ above) this Court was persuaded by the theatrics of the workman in the Court and his assertion that his family is on the verge of starvation. According to the counsel for the employer while it may be true that the family of the workman is in dire economic straits on account of the order of removal, such plight cannot be a relevant factor in law, absence, procedural or substantive infirmity in the disciplinary proceedings or if the finding of guilt is based on no evidence. In summation Sri Hari Haran would contend that in the totality of the context of the facts of the case; in particular the refusal of the workman to participate in the process of domestic inquiry despite several opportunities provided, the ample documentary evidence (Exs.M.1 to M.38) marshalled by the employer in the domestic enquiry as well as before the Industrial Tribunal, the absence of any procedural infirmity in the process of domestic inquiry, the unimpeachable findings of guilt recorded against the employee in the domestic inquiry, the grave misconduct of gross insubordination and unruly and intimidatory behaviour by the workman within the factory premises and being in a responsible position as a security guard; neither the findings of guilt recorded in the domestic inquiry and concurred with by the Industrial Tribunal nor the penalty of removal from service inflicted by the employer (but differed from by the Industrial Tribunal) can legitimately be interfered in exercise of the jurisdiction of this Court under Article 226 of the Constitution. According to the counsel for the employer even as per the model standing orders in respect of industrial establishments issued under The Industrial Employment (Standing Orders) Act, 1946, willful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior; and/or riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline, constitutes misconduct liable for as grave a penalty as dismissal. Reliance is placed by Sri Hari Haran on the judgments of the Supreme Court in Mahindra and Mahindra Ltd. Vs. N.B. Naravade[1]; Ex-Constable Ramvir Singh Vs. Union of India and others[2]; and Senior Superintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal and others[3] . In Mahindra and Mahindra Ltd (1) supra the workman was alleged to have used abusive and filthy language against his supervisor. Pursuant to a domestic inquiry where he was found guilty of the misconduct charged, he was dismissed from service. The Labour Court concurred with the findings in the domestic inquiry that the workman used filthy and abusive language against his superior without any provocation but held the punishment of dismissal to be harsh and improper and substituted the same by directing his reinstatement with continuity of service but with two- thirds backwages. The management’s writ petition was dismissed by the High Court of Bombay holding that the Labour Court had exercised its jurisdiction under Section 11-A of the I.D. Act, 1946. An Intra-Court appeal by the management failed. The management’s appeal was allowed and the order of dismissal from service imposed on the workman by the disciplinary authority was restored. On the scope of the jurisdiction of the Labour Court/Industrial Tribunal under Section 11-A of the I.D. Act, 1946, the Supreme Court observed : It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in 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 hereinabove 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 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 can not by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove 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 hereinabove. In para-23 of this judgment the Supreme Court observed that in the overall factual context and the law declared by it earlier, despite the concurrent conclusions of three Courts (The Labour Court, the Learned Single Judge and Learned Division Bench of the Bombay High Court), the conclusion that the punishment of dismissal is disproportionate to the misconduct is unsustainable. Accordingly, the punishment of dismissal was restored. In Ramvir Singh (2) supra, the appellant/employee was a constable in the Border Security Force. He disobeyed official orders. In appeal before the Summary Security Force Court on charges of refusal to take meals in protest of punishment; and refusal to do the pack drill on all seven days while undergoing R.I., constituting defiance of authority, the employee pleaded guilty to both the charges and was dismissed from service. After exhausting departmental remedies he filed a writ petition which was rejected by the Punjab and Haryana High Court. In appeal to the Supreme Court the employee inter alia pleaded that the punishment of dismissal from service was disproportionate to the charge laid against him. Dealing with the doctrine of proportionality, the Supreme Court observed : 15. The doctrine of proportionality in a given case may be invoked by the superior court in exercise of its jurisdiction under Article 226 of the Constitution of India. It was so held in Ranjit Thakur v. Union of India[4] stating : (SCC p.620, para 25) “25. Judicial review generally speaking, is not directed against a decision, but is directed against the ‘decision-making process’. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review.” It requires to be noted that earlier to the order of dismissal Ramvir Singh was awarded seven days rigorous imprisonment in the custody of the Force for absence without leave. Even earlier he was alleged to have disobeyed lawful command; kept official dak with him for four days; and absented himself from duty for four days and while in the custody of the force to have committed the offences (misconduct) which resulted in the order of dismissal. Considering the totality of circumstances the Supreme Court observed : 16. In the facts of the present case, however, we are of the opinion that the said doctrine should not have been invoked. The appellant was in uniform service. BSF is a disciplinary force. The appellant pleaded guilty to both the charges. He could not show any mitigating circumstances. He had committed a similar offence earlier. He had been asked to report back to duty as he had been carrying a bank draft, which was necessary for payment of the electricity bill as it was required to be deposited by the due date. He not only disobeyed the said order but also in fact reported three days after the date he was asked to arrive at Amritsar. In any event, we are not concerned with the justification of imposition of the sentence or the quantum thereof in the disciplinary proceedings. The order imposing the said sentence is not in question before us. The purported harsh punishment as submitted by Mr. Pandey is, therefore, not a matter of which we can take cognizance at this stage. In Ramvir Singh (2) supra, the Supreme Court reiterated the principle laid down by it earlier in Union of India vs. Narain Singh, (2002) 5 SCC 11; Union of India vs. Sardar Bahadur, (1972) 4 SCC 618; Apparel Export Promotion Council Vs. A.K. Chopra, (1999) 1 SCC 759; and in Union of India Vs. Datta Linga Toshatwad, (2005) 13 SCC 709, pointing out the jurisdictional limits under Article 226 in respect of interference with the adequacy or reliability of evidence,