JUDGMENT Rakesh Tiwari, J.
1. Heard Sri Shyam Narain, learned counsel for the petitioner and Sri Vijai Bahadur, learned counsel for the respondents.
2. The petitioner is aggrieved by the award dated 31,3.1986 passed by the Labour Court, Ohazlabad, passed in Adjudication Case No. 70 of 1981.
3. The facts giving rise to the writ petition are that the petitioner was working as a permanent repairer in the D. T. Section of M/s. Modi Pon Limited, Modi Nagar, Ghaziabad, He was elected as a President of the Mazdoor Sangh, Modi Pon Limited, a union of the workmen of respondent No. 2, and had been approaching the management for ventilating the grievances of the workers which enraged the employer. He alleged that as a sequel, a false and illegal charge-sheet dated 18.3.1979, was given to the petitioner alleging that when he came on duty at about 7 a.m. in 'A' shift on 9.3.1979, he entered in D.T.
Department and without any provocation or reason started abusing the supervisor Sri R. P. Garg, his superior officer who was working on his seat. He was also charged for instigating the other employees for giving call to the workers in the department to give a good beating to Sri Garg but when the workers did not pay any attention, he himself without any reason suddenly assaulted Sri Garg and when Sri Garg tried to run away, he again abused and threatened him not to enter the department in future.
4. The charges in respect of the misconduct committed by the petitioner are as under :
^^;g fd fnukad 9-3-1979 dks vki izkr% 7-00 cts ^^,** f'kV esa M~;wVh ij vk;s AyxHkx 7-05 cts vki Mh-Vh- foHkkx ,- ;wfuV esa igqps vkSj ogk ij viuh lhV ij dk;Zjr lqijokbZtj Jh vk-ih-
xxZ dks ns[krs gh vkius vU; deZpkfj;ksa dks lEcksf/kr djrs gqq, yydkjk ^^ekjks lkys dks** A vU; deZpkfj;ksa }kjk /;ku u fn;s tkus ij vkius vdkj.k vkSj vpkud gh Lo;a Jh xxZ ij geyk dj fn;k A mudk jftLVj est ls mBkdj muds ij ns ekjk vkSj ?kwals o ykrkssa ls mudks ekjk A tc Jh vkj-ih- xxZ ogk ls vkrafdr ,oe vlgk; gksdj Hkkxus yxs rks vkius dgk ^^Hkkx tk lkys ;gk ls [kcjnkj tks foHkkx esa fQj dHkh ?kqlk**
5. Consequent to the charge-sheet, an enquiry was held by the management which was completed on 10.4.1979. It is averred by the petitioner that the enquiry was fake and fictitious and he had left the enquiry as a mark of protest. The enquiry was thereafter concluded ex parte and he was dismissed from service. The demand of the petitioner to reinstate him with full back wages and continuity in service was not acceded to, by the management, as a result of which he raised an industrial dispute before the conciliation officer and when no amicable settlement could be arrived at between the parties, the State Government referred the dispute to Labour Court, Ghaziabad. Before the labour court, the petitioner also alleged that the charge-sheet itself was false and baseless and the entire enquiry proceeding culminating in his dismissal was illegal and without jurisdiction and against the principle of natural Justice.
6. In the backdrop of the aforesaid circumstances, the labour court framed an additional Issue as to whether the domestic enquiry held by the respondent No. 2 against the petitioner was fair and legal, and if not, what was its effect? By the order dated 18.10.1985, the labour court held that the domestic enquiry held by the petitioner was legal and proper.
7. The short question before this Court is whether the punishment awarded to the petitioner is disproportionate to the charges found proved against the petitioner and requires interference by this Court in exercise of powers under Article 226 of the Constitution of India.
8. Sri Shyam Narain, learned counsel for the petitioner has argued that the petitioner was given loan of Rs. 3,000 by the company about ten days before the alleged incident, therefore, there was no motive, cause or reason for the petitioner to abuse and assault Sri Garg, his superior officer. He has submitted that the dismissal order has been passed without giving him a show cause notice, copy of enquiry report and any opportunity, as such order of dismissal is illegal, void and an act of victimisation and mala fide.
9. In support of his contention, Sri Shyam Narain has relied upon para 9 of the judgment of the Apex Court in Khardah & Co. Ltd. v. Workmen, AIR 1964 SC 719, which is quoted below :
"(9). In this connection, it is necessary to point out that unlike domestic enquiries against public servants to which Article 311 of the Constitution applies, in industrial enquiries, the question of the bona fides or mala fides of the employer is often at issue. If it is shown that, the employer was actuated by a desire to victimise a workman for his trade union activities, that itself may, in some cases, introduce an infirmity in the order of dismissal passed against such a workman. The question of motive is hardly relevant in enquiries held against public servants vide Union Territory of Tripura v. Copal Chandra. AIR 1963 SC 601. That is another reason why domestic enquiries in industrial matters should be held with scrupulous regard for the requirements of natural justice. Care must always be taken to see that these enquiries are not reduced to an empty formality."
10. The ruling cited by Sri Shyam Narain does not support his case. It has been held by the Apex Court in the opening paragraph of M/s. Khardah & Co. Ltd. v. The workman (supra) that :
"An Industrial Tribunal will not interfere with the action of the management in dismissing its employee after holding an enquiry into his alleged misconduct unless it is shown that the management has not acted in good faith or that the dismissal amounts to victimisation or unfair labour practice, or the management has been guilty of a basic error, or violation of a principle of natural justice, or when on the materials, the finding is completely baseless or perverse. If the enquiry is fairly held and leads to the conclusion that the charge framed against the employee is proved, the Industrial Tribunal should not sit in appeal over the finding recorded at the said enquiry and should not interfere with the management's right to dismiss a workman who is found guilty of misconduct. "
The petitioner could not show any circumstance or place any material to show that the action of the employer was actuated by a desire to victimise the workman.
11. It is well-settled law that principles of service law are not applied to industrial law. Under the industrial law, employer can justify his action of termination of service etc. of the employee before the labour court without holding any domestic enquiry. The principles in this regard have been enunciated by the Apex Court in para 60 in Delhi Cloth and General Mills Co. v. Ludh Budh Stngh, AIR 1972 SC 1031. After examining the case law, the Court held as under :
"Para 60. From the above decisions the following principles broadly emerge :
(1) If no domestic enquiry had been held by the management or if the management makes it clear that it does not rely upon any. domestic enquiry that may have been held by it, it is entitled to straightway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.
(2) It a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no interference can be drawn, without anything more, that the management has given up the enquiry conducted by it.
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduce evidence before the Tribunal, without prejudice to its plea that the enquiry, proceedings are proper, it is the duty of the Tribunal, in the first instance to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, on longer survives, It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However, elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management will be deprived of the benefit of having the finding of the domestic Tribunal being accepted as a prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.
(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.
(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it.
(7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act."
12. Sri V. Sinha, advocate, holding brief of Sri V. B. Singh, Senior Advocate has stated that the workman not only abused his superior officer but even resorted to assault and violence and if such a person is reinstated in service, it will seriously prejudice the case and set a very bad example. He has argued that punishment of dismissal awarded by the employer was proportionate to the charges levelled against the petitioner and no lesser punishment other than that of dismissal from service, for his misconduct, could be awarded to the petitioner. It is submitted by him that the allegation against the petitioner have been found to be proved by the enquiry officer as well as by the labour court which has given a categorical findings of fact that dismissal was justified in the facts and circumstances of this case.
13. This Court in U. P. State Textile Corporation Spinning Mills, Jhansi v. State of U. P. and others, 1996 (3)AWC 1876 : 1997 (75) FLR 44 has held :
"Giving threats or abuses to a superior can in no circumstances be regarded as a misconduct. It all depends on the facts of each case and the Tribunal had to see the circumstances, e.g. what was exact words used while giving the abuse or threat, in what circumstances the same was done, to whom the threat or abuse given, and when and where, etc. vide Ram Kishan v. Union of India.
In my opinion, one fact should never be forgotten, namely, that the industry must be allowed to run, and no industry can run if there is Indiscipline. In the present case, the respondent No. 3 has not only given abuses and threats but he has actually gone further and committed acts of violence. In my opinion, the industry cannot run if a person like the respondent workman is reinstated. No organisation can run when a person like the respondent No. 3 is its employee, and hence the only punishment called for was dismissal. The Tribunal, in my opinion, acted arbitrarily in interfering with the punishment of dismissal on the sentimental ground that such dismissal would mean economic death. A person like the respondent No. 3, who behaves like a hooligan has to be dismissed, otherwise the industry cannot run ................. As 1 have held above, all the surrounding circumstances have to be seen and no universal rule can be enunciated that abusing can never be held to be a misconduct whatever be the circumstances, for example, abusing a supervisor "officer in the presence of other employees will certainly be subversive of discipline because it will encourage other employees to behave in the same fashion. In the present case not only the petitioner gave abuses but he even resorted to violence which amounted to gross indiscipline and cannot be condoned."
14. In the instant case, the labour court had specifically framed issue with regard to the fairness and legality and its effect and the labour court has given a categorical finding of fact after appreciating the evidence and record that the enquiry was legal and fair. The bald contention of the petitioner that the enquiry was illegal, without jurisdiction and against the principles of natural justice cannot be sustained before this Court. The petitioner had himself left the inquiry proceedings, hence he cannot now turn around and say that the enquiry was fake, fictitious, unfair or against the principles of natural justice. The findings of the enquiry officer dealing with the disciplinary proceedings can be interfered with in cases where the findings are not based on legal evidence or are such that no reasonable person could have arrived at those findings on the basis of the material before the labour court. The jurisdiction of the Industrial Tribunal is only to satisfy itself whether a prima facie case has been made out by the employer and that the employer has not acted mala fide and that the enquiry has been held in accordance with the principles of natural justice. If once the Tribunal comes to the conclusion that the management has not acted with mala fide and there has been a proper enquiry and that the conclusion arrived at by the enquiry officer is a possible one on the evidence led before it, it cannot substitute its own judgment for the judgment of the enquiry officer, though it may have come to a different conclusion on the evidence adduced before the enquiry officer.
15. The findings of fact recorded by the labour court against the petitioner cannot be interfered with by this Court under Article 226 of the Constitution of India on the ground taken in the writ petition. Admittedly, mala fide alleged against the employer could not be proved by the petitioner and the enquiry has also been held fair, legal and in accordance with the procedure of law.
16. Only a bald allegation has been made in the court below that the petitioner was illegally dismissed for his trade union activities, from service on 11.4.1979, i.e., on the very next day the enquiry officer submitted his report. No material whatsoever was brought before the Court to prove the pleadings and that the enquiry was fake and fictitious as alleged by the petitioner.
17. The labour court has in the award given a finding of fact that misconduct of abusing the beating a superior officer without any cause or provocation is of so serious nature that punishment of dismissal from service could be the only punishment. Relying upon judgments of this Court as well as of Apex Court, the labour court has held that the enquiry conducted by the management was fair and proper and punishment of dismissal from service by the management in the circumstances of the case was legal, justified and the petitioner is not entitled to any relief/benefit.
18. The findings of fact given by the labour court are against the petitioner. The labour court after appreciating the evidence and circumstances of this particular case has come to the conclusion that the petitioner had committed gross misconduct and thus he was not entitled to any relief whatsoever. The findings of fact on the quantum of punishment awarded needs no interference by this Court as no illegality in the award could be pointed out to hold otherwise. The contention of the petitioner, therefore, is not acceptable, for the reason that the assault by the petitioner was without any provocation which makes the charges much more serious than in the case of Doom Dooma Tea Co Ltd. v. Workmen of Daimukhia Tea Estate (infra), and termination of services of the petitioner in that case for assault on the superior officer was upheld by the Apex Court.
19. It may further be noted here that the workman did not co-operate in the domestic enquiry which has been found to be fair and proper by the labour court. The findings of fact based on appreciation of evidence in surrounding circumstances should not be normally interfered with. Even in the past, the petitioner was charge-sheeted and he submitted apology. The case against the petitioner is proved on the basis of the material and documents produced before the labour court and as such, no interference is called for under Article 226 of the Constitution of India.
20. On almost similar facts in the case of Doom Dooma Tea Co. Ltd. v. Workman of Daimukhia Tea Estate, FJR (18) 138, the dismissal of a worker for abusing and assaulting a superior officer was upheld by the Apex Court, even in the circumstances of slight provocation by the superior officer. The Apex Court has held that normally the awarding of proper punishment for misconduct under the standing orders is the function of the management, and, unless there is valid justification, the Tribunal should be slow to interfere with the exercise of that function and has further held as under :
"On the facts held proved by Mr. Black it seems to us that the conduct of respondent No. 2 in attacking Mr. Addision is of such a character that the order of dismissal passed against him cannot be treated as unduly harsh or unjust."
21. In the circumstances, I am unable to hold that the punishment awarded to the petitioner can be said to be unduly severe or unjustified. On the contrary, the conduct of the petitioner in assaulting Sri Garg was of such nature that order of dismissal passed against him cannot be treated to be unduly harsh or unjust.
22. No other point has been pressed before me.
23. For the reasons stated above, I am not inclined to interfere in the award given by the labour court on the basis of the findings of fact recorded by it.
24. The writ petition fails and is dismissed. There shall be no orders as to costs.