Case: Colour-Chem Limited Vs. A.L. Alaspurkar &amp; Ors

note that so far as 10 mazdoors were concerned they were let off for this very misconduct by mere warning while the respondents were dismissed from service. It is, of course, true that the respondents were assigned more responsible duty as compared to mazdoors, but in the background of surrounding circumstances and especially in the light of their past service record there is no escape from the conclusion that the punishment of dismissal imposed on them for such misconduct was grossly and shockingly disproportionate, as rightly held by the Labour Court and as confirmed by the revisional court and the High Court. By imposing such grossly disproportionate punishment on the respondents the appellant-management had tried to kill the fly with a sledge hammer. Consequently it must be held that the appellant was guilty of unfair labour practice. Such an act was squarely covered by clause (a) of Item 1 of Schedule IV for the Act being legal victimisation, if not factual victimisation. The ultimate finding of th Labour Court about maintainability of the complaint can be supported on this ground. The second point is answered in the affirmative against the appellant and in favour of the respndent-workmen. Point No. 3 10. So far as this point is concerned it has to be held that when the punishment of dismissal was shockingly disproportionate to the charges held proved against them reinstatement with continuity of service was the least that could have been ordered in their favour. There is no question of appellant losing confidence in them. In this connection learned senior counsel for the appellant tried to submit that apart from going to sleep in the early hours of the morning when the night shift was coming to a close the machine was kept working and that would have created a hazard of the working of the plant and possibility of explosion was likely to arise. So far as this contention is concerned it must be stated that this was not the case for the management while framing the charge-sheets against the workmen. Not only that, there is not a whisper about the said eventuality and possibility in the evidence led by the management before the Labour Court. But that apart no such contention, even through mentioned in the written objections before the Labour Court, was ever pressed in service for consideration before the Labour Court at the stage of arguments, nor any decision was invited on this aspect. No such contention was also canvassed by the appellant in revision before the Industrial Court or before the High Court. This contention, therefore, must be treated to be clearly an after-thought and appears to have been rightly given up in subsequent stages of the trial by the management itself. All that was alleged by its witness before the Court was that because of the respondents going to sleep and allowing the machine to work without pouring raw material therein the production went down to some extent. That was nothing to do with the working of the unattended machine becoming a hazard or inviting possibility of any explosion. Under these circumstances and especially looking to the past service record of the respondents it could not be said that the management would lose confidence in these workmen. The work which they were doing was not of any confidential nature which an operator has to carry out in the plant. It was a manual work which could be entrusted to anyone. Consequently the submission of learned senior counsel for the appellant, that in lieu of reinstatement compensation may be awarded to the respondents, cannot be countenanced. It must, therefore, be held that the Labour Court was quite justified in ordering reinstatement of respondnet-workmen with continuity of service. However because of the misconduct committed by them, of sleeping while on duty in the night shift the Labour Court has imposed the penalty of depriving the workmen, respondent Nos. 3 and 4 respectively, of 60% and 50% for the back wages. After the award they have been granted 100% back wages till reinstatement. But, in our view, as respondent Nos. 3 and 4 went to sleep while on duty and that too not alone but in company of the entire staff of 10 mazdoors, they deserve to be further punished by being deprived of at least some part of back wages even after the award of the Labour Court till actual reinstatement. Interest of justice would be served, in our view, if respondent No. 3 is directed to be paid only 40% of the back wages even after the award of the Labour Court till actual reinstatement pursuant to our present order. Similarly respondent No. 4 will be entitled to only 50% back wages even after the date of the Labour Courts award till actual reinstatement as per the present order. In addition thereto, the appellant- management will be entitled to give written warnings to both these respondents when they are reinstated in service not to repeat such misconducts in further. The imposition of this type of additional penalty, in our view, would be sufficient in the facts and circumstances of the case and will operate as suitable corrective for the respondent-employees. They have suffered enough since more than 14 years. They are out of service for all these 14 years. At the time when they went to sleep in the night shift they were pretty young. Now they have naturally grown up in age and with passage of years more maturity must have dawned on them. Under these circumstances the cut in the back wages as imposed by the Labour Court and as further imposed by us would be quite sufficient to act as deterrent for them so that such misconducts may not be committed by them in future. The third point is answered as aforesaid by holding the the order of reinstatement is justified but the order of back wages as ordered by the Labour Court requires to be modified to the aforesaid extent. 11.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. For resolving the controversy centering round this point it is necessary to have a look at the relevant stutory provisions of the Act. The Act was passed by the Maharashtra Legislature in 1971 as Act No. 1 of 1972. Amongst its diverse objects and reasons one of the reasons for enacting the said Act was for defining and providing for prevention of certain unfair labour practices, to constitute courts (as independent machinery) for carrying out the purposes mentioned therein one of which being enforcing provisions relating to unfair labour practices. Unfair labour practices is defined by Section 3 sub-section (16) of the Act to mean unfair labour practices as defined in section 26. Section 26 of the Act lays down that unless the context requires otherwise, unfair labour practices mean any of the practices listed in Schedules II, III and IV". We are not concerned with Schedules II and III which deal with unfair labour practices on the part of the employer and trade unions. We are directly concerned with Schedule IV which deals with general unfair labour practices on the part of thefar as the aforesaid Clasuse (g) is concerned the Labour Court has held that the misconduct alleged against the respondents and held proved before it was not a misconduct of minor or technical character as they were found sleeping on duty and were also guilty of negligence in keeping the machine in working state without putting necessary raw material therein. As the aforesaid finding of the Labour Court about the nature of misconduct of respondent Nos. 3 and 4 was confirmed by the revisional court and as that finding was not challenged by the respondents before the High Court we shall proceed for the present discussion on the basis that respondent Nos. 3 and 4 were guilty of major misconduct. The moot question therefore which falls for consideration is whether on the express language of Clause (g) the said provision gets attracted or not. A conjoint reading of different sub-parts of the aforesaid provision in our view leaves no room for doubt that it deals with an unfair labour practice said to have been committed by an employer who discharges or dismisses an employee for misconduct of a minor or technical character and while doing so no regard is kept to the nature of the misconduct alleged and proved against the delinquent or without having regard to the past service record of the employee so that under these circumstances the ultimate punishment imposed on the delinquent would be found by the Court to be shockingly dispoportionate punishment. It is not possible to agree with the contention of learned senior counsel for the respondent-workmen that the said clause would also cover even major misconducts if for such misconducts the orders of discharge or dismissal are passed by the employer without having regard to the nature of the particular misconduct or the past record of the employees and if under these circumstances it is found by the court that the punishment imposed is shockingly disproportionate one. It is true that after the words `for misconduct of a minor or technical character, there is found a comma in Clause (g) but if the contention of learned senior counsel is to be accepted the comma will have to be replaced by `or. That cannot be done in the context and settings of the said clause as the said exercise apart from being impermissible would not make a harmonious reading of the provision. Even that apart, in the said clause (g) the Legistature has used the word `or while dealing with the topic of non-consideration by the employer while imposing the punishment the relevant factors to be considered, namely, either the non-consideration employed by the Legislature in the said clause refers to the same topic, namely, non-consideration of relevant aspects by the employer while imposing the punishment. Consequently it cannot be said to have any reference to the nature of the misconduct, whether major or major. It must, therefore, be held that the comma as found in the clause after providing for the nature of the misconduct only indicates how the same nature of the misconduct referred to in the first part of the clause results in a shockingly disproportionate punishment if certain relevant factors as mentioned in the subsequent part of the clause, are not considered by the employer. If the contention of learned senior counsel for the respondents was right all the sub-parts of clause (g) have to be read disjunctively and not conjunctively. That would result in a very anomalous situation. In such an eventuality the discharge or dismissal of an employee in case of a major misconduct without regard to the nature of the particular misconduct or past record of service may by itself amount to shockingly disproportionate punishment. Consequently for a proved major misconduct if past service record is not seen the punishment of discharge or dismissal by itself may amount to a shockingly disproportionate punishment. Such an incongruous result is not contemplated by Clasue (g) of Item I of Schedule IV of the Act. Such type of truncated operation of the said provision is contra-indicated by the very texture and setting of the said clause. Once the said clause deals with the topic of misconduct of a minor or technical character it is difficult to appreciate how the said clause can be construed as covering also major misconducts for which there is not even whisper in the said clause. On a harmonious construction of the said clause with all it sub-parts, therefore, it must be held that the Legislature had contemplated, while enacting the said clause, punishment of discharge or dismissal for misconduct of minor or technical character which, when seen in the the light of the nature of the particular minor or technical misconduct or the past record of the employee, would amount to inflicting of shockingly disproportionateour view, Clause (g) of Item 1 of Schedule IV of the Act is not reasonably capable for two constructions. Only one reasonable construction is possible on the express language of Clause (g). namely, that it seeks to cover only those types of unfair labour practices where minor misconducts or technical misconducts have resulted in dismissal or discharge of delinquent workmen and such punishment in the light of the nature of misconduct or past record of the delinquent is found to be shockingly disproportionate to the charges of minor misconduct or charges of technical misconduct held proved against the delinquent. One and only subject-matter of Clause (g) is the misconduct of minor or technical character. The remaining parts of the clause do not indicate any separate subject-matter like the major misconduct. But they are all adjuncts and corollaries or appendages of the principal subject namely, minor or technical misconduct which in given set of cases may amount to resulting in shockingly disproportionate punishment if they are followed by discharge or dismissal of the delinquent. The first point, therefore, will have to be answered in the negative in favour of the appellant and against thehas to be kept in view that these observations were made by this Court at a time when unfair labour practices were not codified either by the Industrial Disputes Act or even by the present Act. The present Act tried to codify unfair labour practices on the part of employer by enacting the Act in 1972 and even the Industrial Disputes Act being the Central Act also followed the Maharashtra Act and taking a leaf from the book of Maharastra Legislature, Parliament introduced the concept of unfair labour practice by inserting Chapter V-C by Act No. 46 of 1982 w.e.f. 21st August 1984. Sections 25-T and 25-U of the Industrial Disputes Act deal with `Prohibition of unfair labour practice and Penalty for committing unfair labour practices respectively. The term `unfair labour practice was defined by the Industrial Disputes Act by inserting Section 2(ra) with effect from the very same date i.e. 21st August 1984 by the very same Act, i.e., Act No. 46 of 1982 to mean, `any of the practices specified in the Fifth Schedule. The Fifth Schedule of the Industrial Disputes Act, which saw the light of the day pursuant to the very same Amending Act, deals with `unfair labour practices which are a mirror image and a replica of the unfair labour practices contemplated and codified by the present Maharashtra Act. But apart from these subsequent statutory provisions which tried to codify unfair labour practices on the part of the employers, the basic concept of victimisation as laid down by this Court in Hind Constructions case (supra) holds the field and is not whittled down by any subsequent statutory enactments. Not only it is not given a go-bye but it is reiterated by the present Act by enacting Clause (a) of Item 1 of Schedule IV of the Act meaning thereby any discharge or dismissal of an employee by way of victimisation would be unfair labouris easy to visualise that no reasonable management could have punished a delinquent workman who in the late hours of the night shift by about 3.30 a.m. had gone to sleep keeping the machine in a working condition especially in the absence of any gross misconduct reflected by the past service record, with the extreme penalty of dismissal. It is also interesting to note that this was a peculiar case in which the Plant In-charge found during his surprise visit at 3.30 a.m. in the early hours of the dawn entire work force of 10 mazdoors and 2 operators like the respondents and the supervisor all asleep. It is also pertinent to note that so far as 10 mazdoors were concerned they were let off for this very misconduct by mere warning while the respondents were dismissed from service. It is, of course, true that the respondents were assigned more responsible duty as compared to mazdoors, but in the background of surrounding circumstances and especially in the light of their past service record there is no escape from the conclusion that the punishment of dismissal imposed on them for such misconduct was grossly and shockingly disproportionate, as rightly held by the Labour Court and as confirmed by the revisional court and the High Court. By imposing such grossly disproportionate punishment on the respondents the appellant-management had tried to kill the fly with a sledge hammer. Consequently it must be held that the appellant was guilty of unfair labour practice. Such an act was squarely covered by clause (a) of Item 1 of Schedule IV for the Act being legal victimisation, if not factual victimisation. The ultimate finding of th Labour Court about maintainability of the complaint can be supported on this ground. The second point is answered in the affirmative against the appellant and in favour of the respndent-workmen.So far as this point is concerned it has to be held that when the punishment of dismissal was shockingly disproportionate to the charges held proved against them reinstatement with continuity of service was the least that could have been ordered in their favour. There is no question of appellant losing confidence in them. In this connection learned senior counsel for the appellant tried to submit that apart from going to sleep in the early hours of the morning when the night shift was coming to a close the machine was kept working and that would have created a hazard of the working of the plant and possibility of explosion was likely to arise. So far as this contention is concerned it must be stated that this was not the case for the management while framing the charge-sheets against the workmen. Not only that, there is not a whisper about the said eventuality and possibility in the evidence led by the management before the Labour Court. But that apart no such contention, even through mentioned in the written objections before the Labour Court, was ever pressed in service for consideration before the Labour Court at the stage of arguments, nor any decision was invited on this aspect. No such contention was also canvassed by the appellant in revision before the Industrial Court or before the High Court. This contention, therefore, must be treated to be clearly an after-thought and appears to have been rightly given up in subsequent stages of the trial by the management itself. All that was alleged by its witness before the Court was that because of the respondents going to sleep and allowing the machine to work without pouring raw material therein the production went down to some extent. That was nothing to do with the working of the unattended machine becoming a hazard or inviting possibility of any explosion. Under these circumstances and especially looking to the past service record of the respondents it could not be said that the management would lose confidence in these workmen. The work which they were doing was not of any confidential nature which an operator has to carry out in the plant. It was a manual work which could be entrusted to anyone. Consequently the submission of learned senior counsel for the appellant, that in lieu of reinstatement compensation may be awarded to the respondents, cannot be countenanced. It must, therefore, be held that the Labour Court was quite justified in ordering reinstatement of respondnet-workmen with continuity of service. However because of the misconduct committed by them, of sleeping while on duty in the night shift the Labour Court has imposed the penalty of depriving the workmen, respondent Nos. 3 and 4 respectively, of 60% and 50% for the back wages. After the award they have been granted 100% back wages till reinstatement. But, in our view, as respondent Nos. 3 and 4 went to sleep while on duty and that too not alone but in company of the entire staff of 10 mazdoors, they deserve to be further punished by being deprived of at least some part of back wages even after the award of the Labour Court till actual reinstatement. Interest of justice would be served, in our view, if respondent No. 3 is directed to be paid only 40% of the back wages even after the award of the Labour Court till actual reinstatement pursuant to our present order. Similarly respondent No. 4 will be entitled to only 50% back wages even after the date of the Labour Courts award till actual reinstatement as per the present order. In addition thereto, the appellant- management will be entitled to give written warnings to both these respondents when they are reinstated in service not to repeat such misconducts in further. The imposition of this type of additional penalty, in our view, would be sufficient in the facts and circumstances of the case and will operate as suitable corrective for the respondent-employees. They have suffered enough since more than 14 years. They are out of service for all these 14 years. At the time when they went to sleep in the night shift they were pretty young. Now they have naturally grown up in age and with passage of years more maturity must have dawned on them. Under these circumstances the cut in the back wages as imposed by the Labour Court and as further imposed by us would be quite sufficient to act as deterrent for them so that such misconducts may not be committed by them in future. The third point is answered as aforesaid by holding the the order of reinstatement is justified but the order of back wages as ordered by the Labour Court requires to be modified to the aforesaid extent.