Judgment:
Mhatre Nishita, J.
1. The petition challenges the award of the Labour Court in Reference (IDA) No. 202 of 1988 passed on 11.11.1996.
2. The petitioner had employed respondent No. 1 as a telephone operator in its hotel since 1.7.1977. An application for leave was submitted by him on 6.10.1984. He requested that the leave be sanctioned for the period from 17.10.1984 to 15.11.1984. The leave was sanctioned immediately. However, he was informed the very next day, well before the leave period was to commence that the application made by him was disallowed and that the leave which had earlier been sanctioned had been revoked. A fresh application was made by the respondent No. 1 on 12.10.1984 contending that he was required to leave for his native place to visit his ailing grandmother. The period for which leave was sought was the same as the period in the earlier application. It appears that this second application for leave was answered by the petitioner on 16.10.1984, informing the respondent the reasons for which the sanction was revoked. The respondent however proceeded on leave for the period which was initially sanctioned. He resumed duties on 6.11.1985. Thereafter, he continued to work with the petitioner. On 7.1.1985, he left the telephone exchange unattended from 4.35 p.m. to 6.10 p.m. while he attended a gate meeting of the union representing the workmen. A charge-sheet was issued to the respondent No. 1 on 16.1.1985. The charge-sheet incorporated two charges namely of willful insubordination and absence without leave for more than 10 consecutive days. A domestic enquiry was held against respondent No. 1 and he was found guilty by the enquiry officer of both the charges alleged against him. Thereafter, the respondent No. 1 was dismissed from service in view of the charges proved against him and the gravity of the misconduct committed by him on 27.4.1987.
3. The workman raised an industrial dispute which was referred for adjudication before the 4th Labour Court, Mumbai in Reference (IDA) No. 202 of 1988. In the statement of claim, the respondent No. 1 contended that the enquiry held against him was not fair and proper, as the principles of natural justice had been violated. He also contended that the findings recorded by the enquiry officer were perverse and, therefore, were required to be set aside. Respondent No. 1 pleaded in his statement of claim that there was no evidence on record proving the misconduct. He therefore contended that he should be awarded reinstatement with continuity of service and full backwages.
4. In its reply, the petitioner contended that it was a part of the service industry and leave was denied to the workman only because sufficient workmen were not available to carry out the routine work of a telephone operator during the period when the workmen wanted to avail of leave. It was contended that the domestic enquiry held against the petitioner was not vitiated as every opportunity was afforded to the respondent workman during the proceedings. It was also contended that besides the misconduct or absence without sanctioned leave the workman had committed grave misconduct of leaving the telephone exchange unattended for almost 1 hours thereby causing hardship to the guests of the petitioner hotel.
5. By award part I, the Labour Court held that the enquiry conducted against the respondent No. 1 was fair and proper. The Labour Court has observed that the workman was afforded an opportunity to participate in the enquiry proceedings and that the enquiry had been conducted in accordance with the principles of natural justice.
6. After the award, the Labour Court permitted the parties to lead evidence on other issues namely the proportionality of the punishment imposed on the workman and the backwages payable to him in the event reinstatement was granted. The workman examined himself whereas the petitioner led evidence of its General Manager. It also examined a private investigator who deposed to the workman being employed in another concern after his services were terminated. The petitioner also examined the Personnel Manager of that concern who deposed that the workman was employed at the residence of one K. Raheja one of the directors for five years.
7. On the basis of this evidence on record and the findings recorded by the enquiry officer, the Labour Court allowed the Reference and granted reinstatement with continuity of service and full backwages and consequential benefits w.e.f. 30.4.1987. The Labour Court was of the view that the misconduct had been proved against the respondent workman at the domestic enquiry. However, according to the Labour Court, the charges were not so grave as to warrant the punishment of dismissal. The Labour Court was of the view that the punishment of dismissal was shockingly disproportionate and not commensurate with the misconduct committed by the respondent workman. In these circumstances, the Labour Court granted him reinstatement with continuity of service and full backwages with all consequential benefits.
8. The learned Counsel for the petitioner has submitted that the Labour Court has erred in allowing the Reference. He submits that the respondent workman had committed two serious offences, namely, of unauthorised absence and willful disobedience. He points out that the Labour Court had erred in awarding reinstatement and other reliefs to the respondent workman, after concluding that the respondent workman had committed acts of misconduct. The learned Counsel submits that the Labour Court has erred in treating the misconducts committed by the workman as not serious. The learned Counsel points out that the recent decisions of the Supreme Court indicate that the Labour Court/Industrial Tribunal should not interfere with the punishment imposed by the management except under extraordinary circumstances. He submits that the misconducts which have been committed by the respondent workman must be viewed seriously and that no reasonable person would conclude that the respondent workman was entitled to reinstatement with continuity of service and full backwages. He relies judgment in the case of M.P. Electricity Board v. Jagdish Chandra Sharma : (2005)IILLJ156SC ; Bharat Heavy Electricals Ltd. v. Af. Chandrasekhar Reddy and Ors. : (2005)ILLJ865SC ; (Hombe Gowda Educational Trust and Anr. v. State of Karnataka and Ors. : (2006)ILLJ1004SC ; West Bokaro Colliery (TISCO Ltd.) v. Ram Pravesh Singh : (2009)ILLJ220SC , in support of his submissions.
9. Per contra, Mr. Ganguli submits that assuming the misconduct has been proved by the management, while exercising its powers under Section 11-A the Labour Court must take into consideration the past service record of the workman as well as the proportionality of the punishment imposed by the management. He submits that under the Standing Orders it is incumbent on an employer to impose punishment on a delinquent workman only after taking into account any mitigating factors in the past service record of the workman. He submits that in the present case, the workman has not been charge-sheeted and no enquiry has ever been held against him prior to the enquiry which had resulted in his dismissal. The learned Counsel further submits that while exercising the powers under Section 11-A, the Labour Court must take into consideration the proportionality of the punishment which has to be imposed on the workman. He submits that it is now well settled that it is not necessary to dismiss a workman once it is found that he has committed a misconduct. According to the learned Counsel, there are several options available to an employer while imposing punishment; dismissal being the severest punishment should not be imposed on a workman as a matter of course. According to Mr. Ganguly it must imposed as the last resort, after considering the nature of the misconduct committed by the workman. The learned Advocate relies on the judgment in the case of State of M.P. v. Hazarilalf : (2008)IILLJ715SC . In these circumstances, submits the learned Counsel, the Labour Court has committed no error by directing reinstatement with continuity of service and full backwages.
10. Mr. Ganguly then urges that in any event the judgments cited on behalf of the petitioner are not applicable as they do not take into consideration the earlier judgments of the Supreme Court where the Supreme Court has observed that while exercising the powers under Section 11-A, the Labour Court must impose a punishment which is commensurate with the misconduct. As regards backwages, the learned Advocate submits that there is no evidence on record which the Labour Court has found to be reliable, indicating that the respondent workman was employed after his services were terminated, with the petitioner. He relies on the judgment of the Supreme Court in the case of Gujarat Steel Tubes Ltd. v. Rs Mazdoor Sabha : (1980)ILLJ137SC , which is a judgment of the 3-member Bench which has approved the judgment in the case of (Hindustan Tin Works v. Their Workmen) : (1978)IILLJ474SC . He also submits that in any event, a workman who has been thrown out of service cannot be expected to exist without earning a livelihood during the period of his forced unemployment. Therefore, it is necessary for him to earn something during that period. He relies on the judgment of the Supreme Court in the case of S.G. Chemicals and Dyes Trading Employees v. S.G. Chemicals and Dyes Trading Limited and Anr. : (1986)ILLJ490SC , in support of his contention that assuming the respondent earned during the period of forced unemployment that amount should be treated as solatium and should not be adjusted or set off against the backwages payable to the workmen.
11. In the present case, the first misconduct which has been proved against the workmen is of absence without leave. There is no doubt that initially the petitioner had sanctioned leave to the workman. However, due to some exigency of work and the non-availability of permanent workmen, the petitioner cancelled the leave which had been sanctioned to several workmen including the respondent. The petitioner did not sanction the subsequent leave application filed by the workman. In fact according the workman, he was given no reply by the petitioner. In these circumstances, the workman, in my opinion, was not right in proceeding on leave without, any sanction. The Labour Court has therefore, rightly held that the misconduct of absence without leave has been proved. As regards the other misconduct, the allegation against the workman is that he left the place of work i.e. the telephone exchange of the hotel where he was working and attended a gate meeting of his trade union during the working hours. This fact has been admitted by the workman and had been held to be proved. The submission of Mr. Talsania, appearing for the petitioner, that this was a grave misconduct on the part of the respondent must be accepted. Undisputedly, the petitioner is engaged in the hospitality/service industry. A telephone operator is a necessary cog in the wheel of such an industry. If the telephone operator on duty leaves his place of work it would be difficult to run the hotel without any hurdles.
12. Thus, both the misconducts have been satisfactorily proved against the respondent workman. The question now is whether the punishment of dismissal was commensurate with the misconducts alleged and proved against the workman. By proceeding on leave without obtaining the sanction from the petitioner, the workman has committed a serious misconduct of not only remaining absent unauthorisedly for more than 10 days but also disobeying the lawful orders of the superiors. The leave which was granted to the workman was revoked and cancelled. The workman was aware of the fact that the petitioner could not afford to sanction him leave due to exigencies of work and non availability of temporary workmen. In fact, the workman was informed of this decision by a letter dated 16.10.1984. In such circumstances, the misconduct must be viewed seriously as the working of the hotel has been jeopardised by the respondent workman.
13. As regards the second misconduct, the workman had left the place of work to attend the gate meeting. He was away from work without permission for almost 1 hours. This in my view, is also a grave misconduct. It is no doubt true that a workman who is a member of a trade union must be permitted to carry on his trade union activities. However, it is well settled that such activities should not impede his day to day duties. Attending a gate meeting during working hours, when the petitioner is expected to be at a place where he is assigned work, is in my opinion, also a grave misconduct.
14. Considering both these misconducts it would be necessary to ascertain whether they are so severe as to warrant the punishment of dismissal. In the case of M.P. Electricity Board (supra), the Supreme Court has observed that interference in a case of dismissal is not justified when the discipline in a factory is breached. The Supreme Court has observed in para 9 thus:
9. In the case on hand, the employee has been found guilty of hitting and injuring his superior officer at the workplace, obviously in the presence of other employees. This clearly amounted to breach of discipline in the organisation. Discipline at the workplace in an organisation like the employer herein, is the sine 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 largeObviously 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. The Labour Court and the High Court in this case totally misdirected themselves while exercising their jurisdiction. The Industrial Court made the correct approach and came to the right conclusion.
15. Similarly, in the case of Bharat Heavy Electricals Ltd. (supra), the Apex Court after referring to its judgments in Workmen of Firestone Tyre & Rubber company of India (P) Ltd. v. Management: Sheikh Ismail Mohamed : (1973)ILLJ278SC and Hospital Employees Union v. Christian Medical College Vellore Association : (1988)ILLJ263SC , has observed that although the Tribunal has power to differ from the conclusion arrived at by the management at the enquiry, cogent reasons would have to be given by the Tribunal for not accepting the view of the employer. It is only when the punishment imposed by it on the workman concerned is disproportionate that the Labour Court or Industrial Tribunal has powers to interfere in such matters. In the case of State of M.P. v. Hazarilal (supra), the Supreme Court observed that the proportionality of the punishment must be taken into account before any punishment is imposed. Thus, there is no dispute that the proportionality of the punishment and the gravity of the misconduct can be considered by the Labour Court while exercising the powers under Section 11-A. However, the powers under Section 11-A are to be exercised and the punishment is to be interfered with only in rare cases as held by the Supreme Court in Hombe Gowda Educational Trust (supra). In para 18 it has observed thus:
18. This Court repeatedly has laid down the law that such interference at the hands of the Tribunal should be inter alia on arriving at a finding that no reasonable person could inflict such punishment. The Tribunal may furthermore exercise its jurisdiction when relevant facts are not taken into consideration by the management which would have direct bearing on the question of quantum of punishment.
16. Yet again, in the case of West Bokaro Colliery TISCO Ltd. v. Ram Pravesh Singh (supra), the Supreme Court after considering the judgment in the case of Firestone Tyre & Rubber Company of India (P) Ltd. (supra) and Ors. judgments of the Supreme Court has held that when two views are possible on the basis of the evidence on record, the Industrial Tribunal/Labour Court should be slow in substituting its own opinion in the place of the view of the domestic Tribunal.
17. It is no doubt true that while imposing any punishment in respect of the misconduct the employer is expected to consider the past service record of the workman. The Division Bench of this Court in the case of Borosil Glass Works Ltd. v. M.G. Chitale and Richard M.D Souza) : (1974)IILLJ184Bom , has observed that the past record of a workman must be taken into account as there may be some extenuating factors which would mitigate the misconduct alleged against the workman. The Court has observed that the Labour Court/Tribunal has to carefully consider whether there was sufficient material for the employer to impose the punishment it has, having regard to the past service of the workman. The employer must show that the past service record of the workman has been considered while passing the final order. This practice which is laid down in the Industrial Employment (Standing Orders) Act and the Model Standing Orders framed thereunder has to be observed conscientiously and not merely as a routine or as a matter of form. In the present case, the order of dismissal does not indicate that the management has considered the previous record of the workman. However, there was evidence led before the Labour Court in respect of the past service record of the workman. During his service of less than 10 years, two memos had been issued to the respondent for leaving the place of work unauthorisedly and in this view of the matter, the 3rd occasion when he committed the same misconduct, resulted in his dismissal. In my opinion, therefore, it cannot be said that the misconducts proved against the workman when considered together were not severe enough to warrant the punishment of dismissal. The Labour Court has erred in granting reinstatement. As regards backwages as well, there is some material on record to indicate that the workman has been employed ever since his services were terminated by the petitioner. In these circumstances, the Labour Court has committed an error in granting reinstatement with continuity of service and full backwages.
Petition is allowed. Rule made absolute accordingly. No costs.