JUDGMENT Rakesh Tiwari, J.
1. Heard learned counsel for the parties and perused the record.
2. This petition arises from an award passed by the Labour Court, Allahabad, dated 23 February, 1984 in Adjudication Case No. 196 of 1981. The award was enforced by publication on the notice board under Section 6 (3) of the U. P. Industrial Disputes Act, 1947, on 28.4.1984.
3. The dispute arises due to termination of the services of the petitioner on 18.12.1980 by the Company. Aggrieved by his termination the petitioner raised an industrial dispute, which was referred by the State Government in excercise of the powers under Section 4K of the Act to the Labour Court, Allahabad where it was registered as Adjudication Case No. 196 of 1981.
4. The case set out by the employer was that the workman along with other worker assaulted the Chief Executive Officer of the Company. He was found responsible for riotous and disorderly behaviour and was dismissed from service after holding enquiry. It was also the case of the employer that some of the workers had accepted their guilt and their involvement in the incident along with the dismissed workman. This according to the employers established the fact of involvement and participation of the workman in the aforesaid act of misconduct.
5. The case, as set out by the petitioner workman before the labour court, was that he was victimized, charge-sheeted for the alleged misconduct and illegally dismissed from service. Question mark was also raised regarding the fairness of the domestic enquiry on the basis of the pleadings of the parties. An additional issue was framed by the labour court as to whether the domestic enquiry by the employer was fair an proper. The labour court by its interim award held that the domestic enquiry was fair, proper and in accordance with law. By its interim award the labour court is also part of the final award of the labour court.
6. By the impugned award the labour court has held that the petitioner workman misbehaved with the Chief Executive Officer of the establishment of the company, was involved in the act of beating him along with others, instigated other workers to indulge in such violent activity and as such it was not proper to keep such a person in service for the reason that industrial discipline, peace and harmony have to be maintained and if the workman is let out, indiscipline would increase. He found that the punishment of dismissal was not disproportionate, illegal and unjustified. The operative portion of the findings recorded by the labour court in paras 4, 5 and 6 are as under:
^^4- bl fookn esa ,d izkjfEHkd okn fcUnq bl ckr dks fuf'pr djus ds fy, cuk;k x;k fd ?kjsyw tkap U;k;laxr vkSj mfpr <ax ls dh x;h ;k ugha A blds ckn fcUnw ij eSaus 1-12-83 dks fu.kZ; fn;k vkSj blesa esSausa tkp dh dk;Zokgh dks mfpr rFkk U;k;laxr ik;k A vc dsoy ;g ns[kuk gS fd Jfed dks tks n.M fn;k x;k og mfpr gS vFkok ugha A 5- 30-5-80 dh ?kVuk bl izdkj gqbZ A fo|qr foHkkx us ,d uksfVl fn;k fd 28-5-80 ls 2 twu lu 80 rd dksbZ Hkh m|ksx laLFkk fotyh dk iz;ksx ugh djsxh A bl uksfVl dks izkIr djus ij izfr"Bku us ys vkWQ dj fn;k A bl ys vkQ ds dkj.k Jfedx.k mRrsftr gks x;s A 30-5-80 dks izkr% ukS cts dqN Jfedx.k us xSj dkuwuh etek cukdj eq[; dk;Zdkjh vf/kdkjh ds d{k esa ?kql x;s vkSj mUgsa ?klhVdj ys vk;s vkSj mudks ekjus yxs A ftu deZpkfj;ksa us bu Jfedx.k dks jksdus dk iz;Ru fd;k] mUgsa <dsy fn;k x;k A bl dk;Z esa lEcfU/kr Jfed us Hkkx fy;k vkSj og ekjus okyksa dks mRrsftr djrk jgk A lEcfU/kr Jfed rFkk muds vU; lkfFk;ksa dks vkjksi i= fn;s x;s A Jfed us tkp dk;Zokgh esa Hkkx fy;k A mlus xokgksa ls ftjg fd;k A tkap vf/kdkjh us 1-12-80 dks viuh fjiksVZ fn;k A lEiw.kZ lk{; dk fo'ys"k.k djus ds mijkUr og bl fu'd"kZ ij igqpk fd vkjksfir Jfedx.k ij yxk;s x; lHkh vkjksi fl) gq;s A ;g fu.kZ; esa igys gh ns pqdk gw fd tkap dh dk;Zokgh U;k;laxr vkSj mfpr <ax ls dh x;h gS A 6- izfr"Bku ds eq[; dk;Zdkjh vf/kdkjh ds lkFk nqO;Zogkj djus esa lEcfU/kr Jfed us Hkkx fy;k A dqN Jfed us eq[;
dk;Zdkjh vf/kdkjh dks ekjk ihVk lEcfU/kr Jfed us bu ekjus okyksa dks mRrsftr fd;k A esjs fopkj ls bl izdkj ds Jfed dks lsok esa j[kuk mfpr ugh gS] D;ksafd bl izdkj ds yksxksa ls vuq'kklughurk dks c<kok feysxk A esjs fopkj ls lsok eqDr dk vkns'k fdlh izdkj ls voS/k ;k vuqfpr ugha gSaa A**
7. Learned counsel for the petitioner has denied in his argument that the workman concerned was dismissed from service for any trade union activity. It is alleged that he was dismissed from service as he was found responsible to organise riotous and disorderly behaviour and such an act cannot be said to be a trade union activity.
8. Learned counsel for the petitioner submits that in paras 1 and 3 of the written statement filed by the employer it has been stated that the petitioner along with others forcibly entered in the office of the respondents and assaulted the Officer but in the enquiry the Chief Security Officer has stated that the workman tried to enter in the gate and there were 200 workers whereas the labour court in its award held that the petitioner was only inciting the workers. On the basis of these averments the argument advanced by the learned counsel for the petitioner is that the finding of the labour court that the petitioner was inducing the other workmen is never pleaded in the written statement filed by the employer hence it cannot be improved by any other evidence. He has placed reliance on Smt. Bibbe v. Smt. Ram Kali, 1982 AWC 665, in which it has been held that a decision based on facts not pleaded. No evidence would be permissible to be led with regard to a fact, which has not been pleaded. Relying the case of Sy. Yakub v. K. S. Radhe Krtshnan, AIR 1964 SC 477, he submits that the perversity of the order would warrant intervention by High Court under Article 226 of the Constitution of India. It is not denied that there was no evidence against the workman to incite the other workers and that participated in the beating of the Chief Executive Officer.
9. Though it has not been alleged in the written statement of the employer that the petitioner has incited the other workers but by this the gravity of his misconduct is not reduced to an extent that punishment other than dismissal may be given. In paragraphs 1, 2 and 3 of the written statement it has been stated that on 30.5.1980 some workmen of the concern along with Ram Prasad, Chandra Ball, Bhola, Lal Mani Akhaibar and others left their place of work and forcibly entered in the office of the Chief Executive Officer of the Company, pulled him out of the office, manhandled him and also assaulted other officers of the Company. It is also stated that Ram Prasad and six others were assaulting the officers in broad daylight in presence of several employees of the company. They were immediately recognised and in view of the seriousness of the misconduct of involvement in the riotous and disorderly behaviour collectively and they were charged of the offence and dismissed from service. There is sufficient evidence on record of involvement and participation of the worker in the aforesaid acts of misconduct and argument to the contrary is against the record.
10. The second argument of the learned counsel for the petitioner is that even if the charge of inducement is proved dismissal of the petitioner from service on the background of facts of the case is excessive and disproportionate to the charge levelled against him. He submits that the background of the case is explained in para 5 of the award and that the plea of Section 11A of the Industrial Disputes Act was considered by the labour court in para 4 of the award and as such, this Court may interfere in the matter as the labour court in exercise of its power under Section 11A of the Industrial Disputes Act as the same was pleaded before the labour court. The quantum of punishment is not proportionate to the charge levelled against the petitioner. In this regard he has placed reliance on Rama Kant Misra v. State of U. P., AIR 1982 SC 1552 ; Ved Prakash v. Delton Cable, AIR 1984 SC 914 and Scooter India Limited v. Labour Court, 1989 (1) SCJ 232.
11. However, from the award it is clear that the labour court has given a finding of fact that the punishment was not disproportionate to the charge levelled against him as such the aforesaid cases of Rama Kant, Ved Prakash and Scooter India Limited (supra), are not applicable to the facts of the present case.
12. Relying on the case of Dr. Ramesh Chandra Tyagi v. U.O.I,, (1994) 2 SCC 416 ; B. C. Chaturvedi v. U.O.I., (1995) 6 SCC 749 ; Ram Kishan v. U.O.I., (1995) 6 SCC 157 ; U.P.S.R.T.C. v. Mahesh Kumar Misra, 2000 (2) AWC 1475 (SC) : 2000 (3) SCC 450 and Shiv Prakash Rai v. State of U. P., 2001 (3) UPLBEC 2222, he submits that even if plea of awarding lesser punishment is not taken before the High Court, it can still in exercise of power under Article 226 of the Constitution of India may interfere if it feels that the punishment is highly disproportionate to the charge/misconduct.
13. He further submits that Section 2A of the U. P. Industrial Disputes Act, 1947, which is equivalent to Section 11A of the Industrial Disputes Act (Central ) was inserted by U. P. Act No. 34 of 1978. There is no ban or restriction on exercise of Section 11A of the Industrial Disputes Act. He submits that by the insertion of this section the powers of the authority giving the award in the matter of relief has been widened as now the authority making the award has power to substitute the punishment given by the employer and reinstate the workman on the terms and conditions it deems fit and proper.
14. From perusal of the record it appears that the labour court has recorded a categorical finding regarding the guilt and participation of the workman in riotous behaviour inciting the workers and beating the Chief Executive Officer of the company. The punishment of dismissal awarded for such riotous and disorderly violent behaviour cannot be said to be too harsh. Peace and harmony are necessary elements for creation of industrial atmosphere conducive for production and if this is disturbed, the relationship between the master and the servant would be strained and production will suffer. If this is viewed with notional angle, loss in production could be national loss. The reasons given by the Labour Court for not reinstating the petitioner are cogent reasons. After examining the evidence and the arguments I find that the labour court has neither committed any error in law in holding the workman guilty nor the award is perverse. The findings of fact, which are not perverse, should not be overturned in exercise of powers under Article 226 of the Constitution of India. I am also supported with my view by a recent judgment of the Apex Court in Esen Dinki v. Rajiv Kumar, 2002 (1985) FLR 949, in this regard.
15. From the record and the evidence which was looked into by the labour court under Section 11A of the Industrial Disputes Act it is noted that the workmen were found responsible in riotous behaviour, beating the officials of the company and using abusive language and slogans. There are findings of fact by the labour court. The Courts in catena of decisions have held that the punishment of dismissal for using abusive language and beating the superior officers is proportionate to the charge.
16. For these reasons and as a result of the aforesaid discussions it is not a fit case for exercise of powers under Article 226 of the Constitution of India. The writ petition fails and is dismissed.
17. No order as to costs.