Letters Patent Appeal No.107 of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.107 of 2009 Date of decision: 16.09.2009 The New India Assurance Co. Ltd. ...Appellant Versus Central Government Industrial Tribunal-cum-Labour Court, Chandigarh and another ...Respondents CORAM: HON'BLE MR. JUSTICE J.S.KHEHAR. HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Ravi Kapoor, Advocate for the appellant. Mr. Raj Kumar Gupta, Advocate for respondent no.2. J.S.KHEHAR, J.(ORAL) Respondent no.2 was inducted into service of the New India Assurance Company Limited as an Assistant (Clerical) on 27.12.1988. During the course of his employment, a memorandum of charges was issued to him on 28.4.1994. Statement of allegations/imputation of misconduct incorporated in the memorandum of charges is extracted hereunder:- “1. On 22.2.1994 at about 10 a.m. during office-hours, Mr. Ganpat Rai Aggarwal quarreled with Mr. Krishan Kumar, Sub-Staff. When Mr. Ramesh Chand Sr. Asstt. tried to intervene in the matter and also tried to dissuade Ganpat Rai Aggarwal, he assaulted Mr. Ramesh Chand and slapped to him. After some time when Mr. S.P.Jambh, B.M. Also tried to mediate Ganpat Rai Aggarwal, he again assaulted Mr. Jambh and slapped him also. Thus Mr. Ganpat Rai Aggarwal acted in a dis-orderly manner unbecoming of public servant. Letters Patent Appeal No.107 of 2009 -2- **** 2. After sometime, Ganpat Rai Aggarwal mis-behaved with Mrs. Surekha Gupta and used abusive, indecent and unparliamentary language to her in the office.” Finding the reply of the respondent no.2 unsatisfactory, an Enquiry Officer was appointed to conduct a regular departmental enquiry. On the culmination of the aforesaid enquiry, the Enquiry Officer submitted his report dated 1.10.1994. The allegations levelled against respondent no.2 were found to have been proved. The competent authority then inflicted the punishment of removal from service on him vide order dated 4.1.1995. The appeal preferred by the respondent no.2 impugning the order of punishment inflicted upon him was, however, dismissed vide order dated 4.5.1995. Dissatisfied with the punishment inflicted upon him, respondent no.2 raised an industrial dispute under the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”). The State Government referred the dispute raised by respondent no.2 for adjudication on 30.12.1996. Before the Labour Court, the respondent-workman pleaded that he was suffering from M.D.P.(mania). On 22.2.1994 he was not fit and aware of what had transpired. It was further submitted that he remained under treatment of Dr. Kala Nursing Home with effect from 22.2.1994 to 14.3.1994. The Labour Court having examined the proceedings of the departmental enquiry arrived at the conclusion that the same were in consonance with law. It, however, arrived at the conclusion that at the time when the delinquency mentioned in the charge sheet occurred, respondent no.2 was not mentally fit and as such, the allegations levelled against him may not have been intentional. As such, the Labour Court in exercise of Letters Patent Appeal No.107 of 2009 -3- **** powers vested in it under Section 11-A of the Act, felt the expediency of reducing the punishment of removal from service into, stoppage of five increments for one year and payment of 50% back wages but with continuity of service and all attendant benefits. The award passed by the Labour Court on 22.1.2003 was assailed by the New India Assurance Company Limited i.e. appellant by filing Civil Writ Petition No.8814 of 2003. The writ petition filed by the New India Assurance Company Limited was, however, dismissed by a learned Single Judge of this Court vide an order dated 20.11.2008. Through the instant Letters Patent Appeal, the appellant i.e. the New India Assurance Company Limited has impugned the judgment rendered by this Court on 20.11.2008 disposing of Civil Writ Petition No.8814 of 2003. The solitary contention of the learned counsel for the appellant before this Court is that the jurisdiction vested in the Labour Court under Section 11-A of the Act was limited, and could have been exercised only in such cases where the punishment inflicted on the employee is shockingly disproportionate to the allegations levelled and proved against him. In order to substantiate the instant contention, as also to support his allied submission, namely, that no leniency could have been shown to the workman in the facts and circumstances of the present case. Rather than making his submission on the basis of proven delinquency in the present case, learned counsel for the appellant chose to rely on judgments rendered by the Apex Court wherein the issue pertained to allegations of a nature similar to the ones which had been proved against the respondent-workman. Letters Patent Appeal No.107 of 2009 -4- **** In the first instance, learned counsel for the appellant placed reliance upon the judgment of the Apex Court in Mahindra and Mahindra Ltd. Vs. N.B. Narawade etc. JT 2005(2) SC 583. Our pointed attention was invited to the observation recorded in paragraph 14 of the aforesaid judgment. Paragraph 14 relied upon by the learned counsel for the appellant is accordingly being extracted hereunder:- “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 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 gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which requires to 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 such factor existing, the labour court can not 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 for 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 o his subordinates cannot be termed to be an indiscipline calling for lessor punishment in the absence of any extenuating factor referred to herein above." Learned counsel for the appellant then placed reliance upon on another decision rendered by the Supreme Court in Madhya Pradesh Electricity Board Vs.Jagdish Chandra Sharma JT 2005(3) SC102. Our pointed Letters Patent Appeal No.107 of 2009 -5- **** attention was drawn to the observations recorded in paragraph 9 of the aforesaid judgment, which is also being extracted hereunder:- “In the case on hand, the employee has been found guilty of hitting and injuring his superior officer at the work place, obviously in the presence of other employees. This clearly amounted to breach of discipline in the organisation. Discipline at the work place in an organisation like the employer herein, is the sine qua non for the efficient working of the organisation. When an employee breaches such discipline and the employer terminates his services, it is not open to a Labour Court or an Industrial Tribunal to take the view that the punishment awarded is shockingly disproportionate to the charge proved. We have already referred to the views of this Court. To quote Jack Chan, “discipline” is a form of civilly responsible behaviour which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large.” Obviously this idea is more relevant in considering the working of an organisation like the employer herein or an industrial undertaking. Obedience to authority in a work place is not slavery. It is not violative of one's natural rioghts. It is essential for the prosperity of the organisation as well as that of its employees. When in such a situation, a punishment of termination is awarded for hitting and injuring a superior officer supervising the work of the employee, with no extenuating circumstance established, it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate. The Labour Court and the High Court in this case totally misdirected themselves while exercising their jurisdiction. The Industrial Court made the correct approach and came to the right conclusion.” Next in order of reliance, learned counsel for the appellant invited our attention to the judgment rendered by the Supreme Court in M/s Tata Engineering and Locomotive Company Limited Vs. N.K.Singh 2007 Labour and Industrial Cases 176. He invited our attention to the conclusion drawn by the Apex Court in paragraph 10 of the aforesaid judgment, which is being extracted hereunder:- “We find that the Labour Court has found the inquiry to be fair and proper. The conduct highlighted by the management and established in inquiry was certainly of very grave nature. The Letters Patent Appeal No.107 of 2009 -6- **** Labour Court and the High Court have not found that misconduct was of any minor nature. On the contrary, the finding on facts that the acts complained of were established has not been disturbed. That being so, the leniency shown by the Labour Court is clearly unwarranted and would in fact encourage indiscipline. Without indicating any reason as to why it was felt that the punishment was disproportionate, the Labour Court should not have passed the order in the manner done. The case of R.P.Singh was not on a similar footing. He was one of the persons instigating whereas the respondent was the person who committed the acts. Therefore, the orders of the Labour Court is affirmed by the High Court cannot be sustained and are set aside. The order or dismissal from service as passed by the Labour Court in the disciplinary proceedings stand restored.” Lastly, reliance was placed upon the decision rendered by the Supreme Court in J.K.Synthetics Ltd. Vs. K.P.Aggatwal & anr. 2007 Labour and Industrial Cases 1560. Herein learned counsel for the appellant placed reliance upon paragraph 27 which is also being extracted hereunder:- “In this case, we have already found that the charge established against the employee was a serious one. The Labour Court did not record a finding that the punishment was harsh or disproportionately excessive. It interfered with the punishment only on the ground that the employee had worked for four years without giving room for any such complaint. It ignored the seriousness of the misconduct. That was not warranted. The consistent view of this Court is that in the absence of a finding that the punishment was shockingly disproportionate to the gravity of the charge established, the Labour Court should not interfere with the punishment. We, therefore, hold that the punishment of dismissal did not call for interference.” Having invited our pointed attention to the observation recorded by the Supreme Court in the judgments relied upon by the learned counsel for the appellant points out, that the respondent-workman namely Ganpat Rai Aggarwal, had quarreled with a member of the sub-staff Krishan Kumar on 22.2.1994 at 10.00 A.M. When the respondent-workman was being dissuaded by a senior Assistant, namely, Ramesh Chand, the Letters Patent Appeal No.107 of 2009 -7- **** respondent-workman assaulted Ramesh Chand by slapping him. Thereafter, S.P.Jambh, Branch Manager, also made efforts to mediate in the matter. At this juncture, the respondent-workman assaulted the Branch Manager as well. On the same day, at a later juncture, the respondent-workman has also misbehaved with Surekha Gupta, and had used abusive, indecent and unparliamentary language. It is submitted that the charges of the nature which have been proved against the respondent-workman call for the harshest treatment. Infact, it is submitted that although the punishment of dismissal from service would have adequately met the ends of justice, yet a lenient view was taken against the respondent-workman, inasmuch as, the punishment of removal from service was inflicted upon him. It is submitted that the presence of respondent-workman in the office of the appellant would disturb the congenial atmosphere of the office. Infact, it is submitted that considering the fact that it would not be safe to retain the respondent- workman in the office, the punishment of removal from service had been inflicted upon him. There is no doubt whatsoever in the submission advanced by the learned counsel for the appellant, as has been noticed in the foregoing paragraphs. Even Mr. Raj Kumar Gupta, learned counsel representing respondent-workman acknowledges, that the allegations levelled against respondent-workman have as have been noticed in the foregoing paragraph stood proved against the respondent-workman. It is, however, pointed out by the learned counsel for the respondent no.2, that the appellant have missed the basis taken into consideration by the Labour Court, as well as by this Court, while reducing the punishment inflicted upon the respondent- Letters Patent Appeal No.107 of 2009 -8- **** workman. It is pointed out by the learned counsel for the respondent- workman, that the respondent-workman was not in a fit state of mind. It is submitted that there is unrebutted evidence on the record of the case, to the effect, that the wife of respondent-workman on the vital date, namely, 22.2.1994, had spoken to a colleague of the delinquent, Sunil Kumar on telephone and informed him that the respondent-workman was not well, and that he should take care of him. It is also not a matter of dispute that evidence has been led at the hands of respondent-workman to the effect, that he was hospitalised on the date of occurrence, namely on 22.2.1994, and that, he remained under treatment till 14.3.1994. It is also submitted that the Enquiry Officer also accepted in the enquiry report that the respondent- workman was suffering from M.D.P. (mania). In view of the aforesaid factual position, which remained unrefuted during the course of the enquiry proceedings, it is submitted at the hands of the learned counsel representing respondent-workman, that the delinquency alleged against the respondent- workman in the statement of allegations/imputation of misconduct, cannot be treated as conscious acts of misbehaviour at the hands of respondent- workman. It is contended, that it was on account of the facts noticed herein above that the punishment inflicted on the respondent-workman was reduced. It is also submitted that none of the judgments relied upon by the learned counsel for the appellant can be a basis for determining the controversy raised in the Letters Patent Appeal. We have considered the submission advanced by the learned counsel for the appellant as have been noticed herein above, in the totality of the facts and circumstances of this case. We are of the view that there is Letters Patent Appeal No.107 of 2009 -9- **** sufficient evidence available on the record of the case to establish, that on the date of occurrence, namely, 22.2.1994, the respondent-workman was not in a fit state of mind. This conclusion of ours is based on the fact that prior to the incident, the wife of the respondent-workman had admittedly brought the state of mind of the respondent-workman to the notice of one of the employee of the New India Assurance Company Limited and had asked him to look after him. The evidence brought on record, by the respondent- workman also substantiates that he remained under medical treatment from 22.2.1994 to 14.3.1994. Additionally, even during the course of hearing before this Court, learned counsel for the appellant did not dispute the fact that the respondent-workman was suffering from M.D.P.(mania), as such, the Labour Court, as well as this Court, were wholly justified in arriving at the conclusion, that the delinquency committed by the respondent-workman was when he was in state of mental imbalance. Coupled with this fact, it is not a matter of dispute that never before, the respondent-workman had behaved in the fashion depicted in the allegations levelled against him. All this, in our view, clearly leads to the conclusion that delinquency alleged against the respondent-workman, though proved cannot be treated as acts committed by the respondent-workman consciously. In other words, the delinquency levelled against the respondent-workman do not constitute conscious acts of misbehaviour as he was suffering from M.D.P.(mania) at that juncture. In the facts and circumstances of the present case, we are satisfied that the Labour Court was fully justified in reducing the punishment inflicted upon the respondent-workman, in exercise of jurisdiction vested in it under Section 11-A of the Act. We are also Letters Patent Appeal No.107 of 2009 -10- **** satisfied that the learned Single Judge was also justified in approving the order passed by the learned Labour Court. For the reasons recorded herein above, we find no merit in the instant appeal and the same is accordingly dismissed. (J.S.KHEHAR) JUDGE September 16, 2009 (S.D.ANAND) Pka JUDGE