Whether It Is To Be Circulated To vs Abhesinh Jitubhai Sindha ­

The Gujarat Electricity Board ('the Board', for short) has filed this petition calling in question the judgment and award dated 8th August 2003 passed by the Presiding Officer, Labour Court, Anand in Reference (LCF) No.731 of 1992. The petition is arising in the following factual background: The respondent who was employed by the petitioner as a daily wager, was employed at Dhuvaran Power Station of the petitioner­Board. The case of the petitioner is that when a departmental enquiry against one Motibhai Desai was going on in the guest house of the Board on 11th March 1987, the present respondent i.e. Abhesinh Jitubha Sindha and his co­worker, Madhusinh N Solanki entered the room and snatched away the papers and set them on fire. On the basis of such allegations, departmental charge­ sheet was served on both of them on 12th March 1986. Pursuant to such charge­sheet an enquiry was conducted. The enquiry report was submitted on 17th October 1986 and on the basis of such enquiry report a show­cause notice was issued on 2nd December 1986. The disciplinary authority passed an order dated 7th March 1997 dismissing both the workmen.

SCA/2775/2004 3/12 JUDGMENT Since a reference pertaining to these workmen was pending before the Labour Court, the petitioner filed Approval Application No.13 of 1987. In such approval application, the workmen questioned the legality of the enquiry itself. The labour court having found that the enquiry was vitiated permitted the employer to lead evidence before itself. On the basis of such exercise, the labour court granted the approval for dismissal of both the workmen by an award dated 27th October 1989.

The present respondent challenged his dismissal by raising a reference being Reference (LCF) No.731 of 1992. Notably, his co­workman does not appear to have raised any dispute. Be that as it may, insofar as the present respondent is concerned, the labour court, on the basis of the material before itself, came to the conclusion that the charge of having snatched away the enquiry papers and tearing them was established. The later element of the charge, namely, of having set the documents on fire was not proved.

On the question of penalty, the labour court was of the opinion that the workman discharged the duty for a long period of time without any SCA/2775/2004 4/12 JUDGMENT complaint of his misbehaviour. The punishment was excessive. The labour court, therefore, set aside the dismissal order and ordered reinstatement of the workman without back­wages, but with continuity of service. It is this award of the labour court which the employer has challenged in this petition.

Learned counsel Mr Premal Joshi for the petitioner has vehemently contended that the charges having been proved, the labour court committed an error in interfering with the order of punishment. He submitted that misconduct was gross and no leniency could have been shown. He relied on the decision of the Apex Court in the case of JK Synthetics v. K.P. Agrawal, reported in (2007) 2 SCC 433 wherein it was observed as under:

"27. 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 SCA/2775/2004 5/12 JUDGMENT 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."

On the other hand, learned counsel Ms Sangita Pahwa for the respondent­workman opposed the petition contending that the labour court has committed an error in holding that the charge was proved. Painstakingly taking me through the evidence on record, she argued that there are large number of discrepancies in the version of the enquiry officer, Shri H.V. Desai, on the basis of whose complaint, the enquiry was initiated. The labour court, therefore, ought to have held that the charges were not proved. With respect to quantum of punishment, she submitted that in terms of powers under Section 11A of the Industrial Disputes Act, 1947 the labour court, while exercising the discretionary jurisdiction, passed the award and this Court, in a petition under Article 226/227 of the Constitution of India would not interfere.

Having thus heard arguments of the learned counsel for the parties and having perused the SCA/2775/2004 6/12 JUDGMENT documents on record, I find that before the labour court the employer had led the evidence to prove the charges against the workman. The complainant, Shri H.V. Desai had given his detailed version of the incident in question. Shri H.V. Desai himself was an enquiry officer in the enquiry against Shri Motibhai Desai. He was, thus, a witness when the respondent­workman and his colleague allegedly entered the guest­house room where the enquiry was going on and snatched away the enquiry papers. The labour court has examined his evidence and found it to be reliable. It is true that the labour court also, as suggested by the learned counsel for the respondent, noticed certain discrepancies. It is also true that other persons, allegedly present during such incident, did not support the version of the management during the course of the enquiry against the present respondent before the labour court. However, the labour court having taken into account the entire evidence and, in particular, that of Shri H.V. Desai and having come to the aforesaid conclusion, I do not find any reason to hold that the conclusion of the labour court is perverse. The labour court, in fact, observed that there was no reason for Shri H.V. Desai for falsely implicating the workmen. In absence of any suggestion of mala fide action on the part of Shri H.V. Desai or the management, SCA/2775/2004 7/12 JUDGMENT I do not think any further enquiry or discussion in this regard is called for. The Labour Court having appreciated and weighed such evidence and having come to the conclusion that the charges are proved, I do not see any scope for interference.

The result of such conclusion is that, as held by the labour court, the charge of snatching away and tearing of the documents of the enquiry going on in case of Shri Motisinh Desai by the respondent and his co­worker stands proved. One may recall the further charge of setting the said documents on fire was not believed by the labour court also. The question is did the labour court err in substituting the punishment of dismissal by a lesser punishment?

Such question shall have to be viewed in the background of the relevant facts. Such facts are that the respondent­workman was discharging his duties since a long time. Though the exact tenure of his service does not emerge from the record immediately, even the Board does not dispute that there was a long service put in by the employee before he got involved in the said incident. The labour court's finding that during such service there was no complaint against the workman is also not seriously disputed before me.

SCA/2775/2004 8/12 JUDGMENT Neither before the labour court during the course of reference proceedings nor before me in the present proceedings the Board has produced any adverse material against the workman to demonstrate that besides the present enquiry, he was involved in any other kind of misconduct. It would, thus, appear that during a long service career, the present blemish was the only and first kind of misconduct on the part of the respondent. It is true that during the course of domestic enquiry if any punishment is imposed by the employer, the courts would ordinarily not interfere unless choice of the punishment is so excessive as to shock the conscience. Such expressions are found in number of decisions of the Apex Court starting from the case of B.C. Chaturvedi v. Union of India, reported in AIR 1996 SC 484. Even while the Court may interfere with the extreme punishment of dismissal, ordinarily, the matter would have to be placed before the employer to substitute such punishment by some other lesser punishment and the Courts normally do not undertake the exercise of deciding which punishment would suit the proved misconduct. However, Section 11A of the Industrial Disputes Act, 1947 recognises the peculiar power of the Labour Courts and Industrial Courts where, the Court, if satisfied that the order of discharge or dismissal was not SCA/2775/2004 9/12 JUDGMENT justified, may set aside the order of discharge or dismissal and direct the reinstatement of the workman on such terms and conditions as the Court thinks fit or give such other reliefs to the workman including awarding of any lesser punishment in lieu of discharge or dismissal.

In the present case,the Labour Court while setting aside the order of dismissal, held the workman disentitled to any backwages for the entire period from the date of dismissal till reinstatement. It may be recalled that the dismissal was ordered in March 1987 and the labour court's award was rendered on 8th August 2003. Thus, for nearly 16 years the workman would not get any wages.

It is true that the workman had committed misconduct. It is also true that the misconduct was not such which could or should be overlooked lightly. However, it is not the principle of service jurisprudence that every misconduct must be visited with extreme penalty of dismissal. As there are different grades of misconducts, service rules provide for different grades of punishments. In the present case, the labour court having found that the dismissal being not justified in facts of the case, has set aside the same and substituted the punishment by providing SCA/2775/2004 10/12 JUDGMENT for reinstatement of the workman without back­ wages. Withholding of back­wages spans for more than 16 years.

I am of the opinion that the labour court committed no error in interfering with the order of dismissal. For the facts stated hereinabove and the reasons already recorded, it was within the jurisdiction of the labour court in terms of Section 11A of the Industrial Disputes Act, 1947 to interfere with such punishment even while holding that a part of the charge was proved. Undoubtedly, the charge which was proved was quite serious. Despite the same, if the labour court found, looking to the attendant facts and circumstances, that the extreme punishment of dismissal was not justified, in a writ petition under Article 226/227 of the Constitution of India, I see no reason to take a different view or substitute my view for the view of the labour court even if I had a different approach to the matter. It is, undoubtedly, true that withholding of wages of a workman for more than 16 years would result into serious consequences. However, particularly looking to the proved charges, I wonder whether mere withholding of wages was a sufficient punishment. Therefore, even while recognising the Tribunal's power and correctness in setting aside the order of SCA/2775/2004 11/12 JUDGMENT dismissal, substitution of the punishment leaves some scope for modification. Apparently, two choices present themselves. The first would be while upholding the substitution of the order of dismissal, leave it to the employer to impose any punishment other than the major penalty of discharge, dismissal or removal from service. Second option which occurred to me was to withhold the salary of the workman for the entire period during which, post award of the labour court, the present proceedings continued before this Court. I am informed that the respondent­ workman has received benefit of Section 17B for few years out of the total pendency of this petition. His counsel stated that he is ready to refund the entire amount to the authorities, if sufficient time is granted. She stated that such an undertaking would be filed by the workman before the authorities. If the workman files such undertaking and further prays for some reasonable installments or time for refunding the entire amount, the authority shall consider the same sympathetically.

I have,therefore, proceeded on such basis to examine what should be the appropriate ultimate direction.

SCA/2775/2004 12/12 JUDGMENT I further find that the issue is an extremely old one. The alleged misconduct took place in the year 1986. In the year 2012 the workman, in all probability, may have even crossed the age of superannuation or may be at the verge of it. Therefore, instead of remanding the proceedings to the employer in this proceeding itself it is provided that in addition to labour court's not granting any back wages during the pendency of proceedings before the labour court, the workman shall receive no back wages till the date of this order or till the date of his crossing the age of superannuation, in case by now he has crossed such age. He will, however, be entitled to continuity of service.

With the above modification, the award of the labour court is confirmed. Rule is made absolute to the above extent. No order as to costs.

(Akil Kureshi, J.) *mohd