1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.914 OF 1997 Vilas Vithalrao Takale ..Petitioner. Vs. Jaya-Hind Industries Limited and others ..Respondents. .... Ms. Neeta Karnik for the Petitioner. Mr. S.K. Talsania, Senior Advocate with Ms. Pallavi Dedhia i/b Sanjay Udeshi for Respondent NO.1. ..... CORAM: DR. D.Y. CHANDRACHUD, J. 8th April, 2008. ORAL JUDGMENT : 1. The challenge in these proceedings under Articles 226 and 227 of the Constitution is to the orders passed by the Labour Court on 3rd June, 1994 and 20th May, 1995 in a complaint of unfair labour practices and an order dated 16th October, 1996 passed by the Industrial Court in revision. 2. The Petitioner was employed as a junior clerk with the First Respondent since 13th January, 1972. Two charge-sheets were issued to the Petitioner by the management – the first dated 3rd June, 1991 in respect of an incident which was alleged to have 2 taken place on 29th May, 1991 and the second dated 29th October, 1991 in respect of an incident which is alleged to have taken place on 28th September, 1991. The allegations in the first charge-sheet issued were to the following effect : “On 29th May, 1991 when you were in the General Shift, you were asked by your department head to show him whether the PLA and RG 23 registers were updated. You replied that there was a backlog of 2 days & since you were new, you were unable to cope up with the work. You were told by your department head to update the registers the same day as it is a statutory requirement. You replied that you could make only one entry per hour. Your department head said that if required he would do the postings for one day to show that the work could be completed on a day to day basis. You rudely told your department head that he was drawing a salary of Rs.8,000/- where as you were drawing Rs.1500/- and you could not be expected to do as much work. You also said that your department head wanted to murder you by overloading you with work. Your department head explained to you that it is a statutory requirement to complete the excise work the same day and said that the work given would not overload you, and further if by doing this much work anyone could get murdered, he could not help it. After this you started shouting at Mr. Loomba alleging he wanted to murder you, make your children orphans and to throw you out of the company. You banged your hands on the table and shouted how dare he tell you that he will murder you. You also said that you would bring a knife and a revolver and give it to Mr. Loomba for murdering you. You also threatened to bring the police. At that time there was a guest from Jamshedpur in your 3 department head's cabin. Your above misbehaviour is a serious misconduct.” 3. In the second charge-sheet it was alleged that when the Petitioner was present in the general shift on 28th September, 1991 his superior went to his department at 3.00 p.m. in order to arrange and complete the work relating to excise matters that was assigned to the Petitioner. The superior pointed out to the Petitioner that he had not made several entries in the AR 3-A register at which point of time the Petitioner is alleged to have shouted at the superior and to have abused him in filthy language. The words used have been reproduced in the charge-sheet which, for the sake of propriety it would be perhaps appropriate not to extract in this judgment. The Petitioner was charged with misconduct under Standing Orders 22(a) and 22(l) viz. of the commission of an act involving willful insubordination or disobedience of any lawful and reasonable order of a superior and the commission of an act subversive to discipline or good behaviour on the premises of the establishment. A disciplinary enquiry was held and in pursuance thereof an order was passed on 24th July, 1992 dismissing the Petitioner from service. 4 4. The Petitioner instituted a complaint of unfair labour practices under Item 1 (a), (b), (d), (f) and (g) of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The case of the Petitioner was that he was recently transferred to the department concerned; that he had taken an active part in union activities and had entered into correspondence with statutory authorities. It was his case that no training was imparted to him and that he was compelled to produce the same output as others. During the course of the proceedings before the Labour Court the challenge to the fairness of the enquiry was not pressed. By an order dated 3rd June, 1994 the Labour Court came to the conclusion that the enquiries were fair and proper and that the findings were not perverse. In a further order dated 20th May, 1995 the Labour Court came to the conclusion that the misconduct stood established on the basis of the evidence. The complaint was dismissed. The Petitioner carried the dismissal of the complaint in revision before the Industrial Court. The Industrial Court by its judgment dated 16th October, 1996 dismissed the revision. Accordingly the judgments of the Labour Court and the revisional judgment of the Industrial Court have been 5 called into question in these proceedings. 4A. In challenging the dismissal of the complaint of unfair labour practices, Counsel appearing for the Petitioner submitted that (i) the enquiry that was held into the charge of misconduct was not fair and proper since several material questions that were sought to be posed on behalf of the Petitioner were disallowed. Reference was made in this connection to the grounds taken in paragraphs 15 to 17 of the complaint; (ii) Neither the Labour Court nor the Industrial Court have furnished any reasons to hold that the misconduct was proved save and except for holding that there was no perversity in the findings that were arrived at in the enquiry; (iii) Insofar as the charge-sheet issued dated 3rd June, 1991 is concerned, the Officer (Shri Loomba) with whom the Petitioner had an altercation was not examined and the witness who was examined was not in a position to comprehend the nature of the language used by the Petitioner since he was not conversant with the language of the Petitioner. 4B. On the other hand, it has been urged on behalf of the management that the Petitioner cannot be permitted to challenge the fairness of the enquiry at this stage since the issue as to fairness was not pressed before the Labour Court and the order of the Labour Court dated 3rd June, 1994 was as a matter of fact not challenged in revision. Secondly, 6 it was submitted that the Labour Court had elaborately considered the question as to whether the findings in the enquiry were perverse and on the basis of the evidence produced in the enquiry came to the conclusion that there was no perversity. On the basis thereof, it was submitted, that there was a legitimate reason for the Labour Court to hold that the finding of misconduct was proved. The Labour Court, it was alleged had gone into the details of each one of the items of Schedule IV with reference to which a complaint of unfair labour practices was made. There was a finding of fact that there was no victimization. Finally, it was submitted that in a complaint of unfair labour practices the provisions of Section 11-A of the Industrial Disputes Act, 1947 were not attracted. In view of the law laid down by the Supreme Court in recent cases the misconduct on the part of the Respondent must be regarded as being of a serious nature which would warrant the imposition of the penalty of dismissal. 5. In considering the merits of the rival contentions, the first thing that would need emphasis is the specific observation in the judgment of the Labour Court to the effect that the Petitioner had admitted that the enquiry was fair, proper and legal. The challenge 7 by the Petitioner before the Labour Court was confined to the perversity of the findings. The Labour Court in its judgment and order dated 3rd June, 1994 thus came to the conclusion that the enquiry was fair and that the findings that were arrived at were not perverse. In its final judgment dated 20th May, 1995, the Labour Court held that the misconduct was proved and accordingly dismissed the complaint. The challenge before the revisional Court was solely to the order dated 20th May, 1995 viz. to the second order of the Labour Court. The Industrial Court has in the course of its judgment correctly observed that no revision was filed against the initial order dated 3rd June, 1994 in order to challenge the findings of the Trial Court. That as a matter of fact is borne out by the record. The scope of the challenge in these proceedings therefore would have to be structured consistent with this position. The Petitioner had before the Labour Court expressly given up the challenge to the fairness of the disciplinary enquiry. A perusal of the grounds taken before the revisional Court would show that there was no grievance to the effect that the observation of the Labour Court to the effect that the challenge to the fairness of the enquiry was not pressed, was erroneous. Where a concession is erroneously recorded, the settled principle of law is that it is before 8 that Court that the litigant must move for the correction of the record. However, it needs emphasis that the concession on the part of the Petitioner not to challenge the fairness of the enquiry is fortified by the grounds which were taken before the revisional Court in which a challenge to the fairness of the enquiry is found conspicuously absent. The fairness of the enquiry, therefore, cannot be permitted to be agitated before this Court. 5A. The Labour Court in the course of its first judgment perused the enquiry proceedings and the findings and noted that the witnesses which were examined by the management were relevant and concerned with the act of misconduct committed by the workman. This assumes some significance in the light of the grievance that has been urged before this Court that the official with whom the altercation is alleged to have taken place was as a matter of fact not examined. The Labour Court has noted that the witnesses who were examined by the management were concerned with the acts of misconduct and it has not been disputed before this Court that the witnesses who actually deposed were in the ordinary and natural course of events connected with the incident. The Labour Court held that the findings of the Enquiry Officer were based on the evidence and that 9 the evidence which has been taken into consideration was not hearsay. The witnesses who were examined were noted to be present at the time of the incident alleged against the workman. It was in these circumstances that the Labour Court held that the findings which were recorded in the enquiries were not perverse. The consequential finding which was arrived at in the subsequent judgment dated 20th May, 1995 was that the misconduct was proved. Once the Labour Court held that there was no perversity in the findings which were arrived at in the disciplinary proceedings, the conclusion that misconduct stood established follows as a natural and logical conclusion. In such a case, particularly in the context of a complaint of unfair labour practices the Labour Court was not expected to substitute the exercise which had already been carried out for a fresh exercise of the appreciation of evidence. The Labour Court has also considered the question as to whether the plea of victimization had any substance and found that as a matter of fact the Petitioner was not a member of the committee of any union; that he was not a part of the negotiations with the management and that after 1978 he had not as a matter of fact been even a member of any union. The complaint of unfair labour practices was under clauses (a), (b), (d), 10 (f) and (g) of item 1 of Schedule IV. Each of these items has been considered and it has been found that as a matter of fact no case of unfair labour practices has been established thereunder. This, aspect, however, would be considered in greater detail hereinafter. The judgment of the revisional Court has noted that there was no challenge to the order dated 3rd June, 1994 in revision. The Industrial Court has, consistent with the parameters of the revisional jurisdiction come to the conclusion that no case for interference was made out. 6. The net result of the aforesaid discussion is that (i) the enquiry has been held to be fair and proper; (ii) As a matter of fact there was no challenge to the fairness of the enquiry; (iii) The finding that there was no perversity in the findings in the disciplinary enquiry has attained finality; (iv) The misconduct on the part of the Petitioner has been held to be proved; (v) There has been an independent consideration of the question as to whether any complaint of unfair labour practices was made under clauses (a), (b), (d), (f) and (g) of item 1 of Schedule IV; (vi) The plea of victimization has been found to be unworthy of acceptance; (vii) There is a concurrent finding of both the Courts below on these 11 aspects. 7. Under Item 1 of Schedule IV the unfair labour practice consists of a discharge or dismissal of an employee in certain stipulated situations. Clause (a) deals with a situation where discharge or dismissal is by way of victimization. Clause (b) refers to a situation where discharge or dismissal is not in good faith but in colourable exercise of the employer's rights. Under clause (d) an unfair labour practice arises where an employee is discharged or dismissed for patently false reasons. Under clause (f) an utter disregard of the principles of natural justice in the conduct of the domestic enquiry or the conduct of the enquiry with undue haste, leading to discharge or dismissal would be an unfair labour practice. Finally under Clause (g) it has been provided that the discharge or dismissal of an employee for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of the service of the employee, so as to amount to a shockingly disproportionate punishment would constitute an unfair labour practice. 7A. In the present case, item 1(a) would not be attracted since the plea of victimization has been negatived as a matter of 12 fact by both the Courts. Item 1(b) similarly would not be attracted since there was no order of dismissal or discharge which was not in good faith or in colourable exercise of the rights of the employer. Once it is alleged that there was no perversity in the findings and that the misconduct stood proved, it cannot be held that the discharge or dismissal was for a patently false reason so as to attract item 1(d). Item 1(f) which deals with the principles of natural justice is similarly not attracted since the challenge on that ground was not pressed before the Labour Court. Finally insofar as clause 1(g) is concerned, it is now well settled following the judgment of the Supreme Court in Colour-Chem Limited v. A. L. Alaspurkar1 that the aforesaid item deals with misconduct of a minor or technical nature (para 11). In the present case, the allegation against the workman is of a serious nature involving insubordination and the use of filthy language. This cannot be regarded as a misconduct of a minor or technical nature. In the circumstances, item 1(g) would not be attracted. 8. The allegations against the Petitioner which have been found to be established in the course of the disciplinary enquiry 1 1998 I CLR 638. 13 proceedings are of a serious nature. In Mahindra and Mahindra v. N.B. Narawade2 the Supreme Court, even in the context of Section 11-A of the Industrial Disputes Act, 1947 held that the dismissal for the use of abusive language cannot be regarded as disproportionate. “As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills 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 is cannot be tolerated by any civilised 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.” 9. These observations of the Supreme Court must apply a fortiori where the complaint arises under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Section 11-A is not attracted to such a situation. Even where Section 11-A applies under which a certain discretion is vested in the Labour Court to interfere with the quantum of punishment where the workman is found guilty of 2 (2005) 3 SCC 134. 14 misconduct, the Supreme Court has held that dismissal for use of abusive language ought not to be interfered with. In the subsequent judgment in L.K. Verma v. HMT Ltd.3 the Supreme Court once again held thus : “So far as the contention as regards quantum of punishment is concerned, suffice it to say that verbal abuse has been held to be sufficient for inflicting a punishment of dismissal.” 10. Finally, it would be necessary to refer to the judgment in M.P. Electricity Board v. Jagdish Chandra Sharma4 where the Supreme Court emphasized the importance of discipline in the work place : “Discipline at the workplace in an organisation like the employer herein, is the since 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.” 3 (2006) 2 SCC 269. 4 (2005) 3 SCC 401. 15 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 workplace is not slavery. It is not violative of one's natural rights. 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.” 11. The net result of the discussion therefore is that there is no infirmity in the findings of fact which have been arrived at by both the Courts below. The approach of the Courts below on issues of law does not suffer from any error apparent. On the contrary, the view which has been taken is in accordance with settled principles of labour jurisprudence. No case for interference has therefore been made out. The Petition shall accordingly stand dismissed. In the circumstances of the case, there shall be no order as to costs. *****