S.J. Mukhopadhaya, J.
1. The petitioner, All India Conference (Golmuri Constituent Branch), Mahila Sharan, Teclo Colony while challenged the order dated 11th June, 1991 passed in reference Case Nos. 5/86 to 8/86, have also challenged the award dated 28th June, 1993 passed in Reference Case Nos. 5/86 to 8/86/27/88 to 30/88.
2. By order dated 11th June, 1991, the learned Presiding Officer decided the preliminary issue against the petitioner and held it an 'Industry', as defined under Section 2(j) of Industrial Disputes Act, 1947 (I.D. Act for short). 'By the impugned award dated 28th June, 1993, while the dismissal orders of respondents 3 to 7 have been set aside by the learned Presiding Officer and minor punishment of stoppage of three increments have been imposed, they havebeen reinstated with full back wages and other benefits.
3. The petitioner which claim to be a Philanthropic Organisation mainly raised two questions for determination, namely, (a) whether the Philanthropic Institution is an 'Industry', as defined under Section 2(j) of the I.D. Act, 1947 or not (b) whether the punishment of stoppage of increments as awarded by the learned Presiding Officer is proportionate to the gravity of charges or not.
4. The case of the petitioner is that the petitioner is one of the wings of All India Women's Conference, an incorporated body, registered under the Societies Act, 1860. It is a Philanthropic Organisation set up, inter alia, with aims and objects to help the destitute and handicapped, mentally retarded and needy women/widows as well as children to earn their livelihood; for opening avenues of employment and maintaining orphanage; to bring up the children born of leper parents till they are settled in life. It is purely a Philanthropic and Charitable Institution, without any profit motive. While doing the aforesaid work, the petitioner-Organisation make some savings which are utilized for achieving its philanthropic objects.
5. The following are the aims and objects of petitioner-Organisation, as mentioned in its constitution :--
'2. Aims and object :
These shall be on the lines of All India Women's Conference namely :--
(i) To help........and handicappedmentally retarded and needy women and children to earn their livelihood by opening avenues of employment and maintain orphanage to bring up children born of leper parents till they are settled in life.
It will be purely philanthropic and charitable institution without any profit motive.
(ii) To work actively for the general progress and welfare of women and children and to help women to utilize to the fullest the fundamental rights conferred on them by the Constituent of the Indian Union and in particular to set up working Women's Hostel and maintain it.
(iii) To work for the creation of a society based on the principles of social justice, personal integrity and equal rights and opportunities for all.
(iv) To secure recognition of the inherent right of every human being to work and to the essentials of life such as food, clothing, education and social amenities and security in the belief that these should not be determined by accident of birth or sex but by planned social distribution.
(v) To support the claim of every citizen to the right to enjoy basic civil liberties.
(vi) To stand against all separatist tendencies and to promote greater national integration and unity.
(vii) To co-operate with peoples and organizations of the world for the implementation of these principles which alone can assure permanent international amity and world peace.'
6. According to the petitioner, this membership is open for every woman over the age of 18 years with the annual subscription of Rs. 10/- per annum. Its aims and objects is to help the destitute and needy women, carries out a few activities by gainfully employing such women. The activities and affairs are managed by the Executive Committee formed for the purpose and following activities are carried out :--
(i) manufacturing soap, (ii) preparation of lunch packets for supplying to companies including M/s. Telco, (iii) Preparation of Laddu for supplying to canteens including M/s. Telco Canteen, (iv) sewing section engaged in making seats for Telco Vehicles as per Order, (v) assembly of cable harness for supplying to M/s. Telco, per Order, and some other activities by primarily employing the widows and destitutes women.
7. The affairs of the petitioner are managed by the women members normallyfor the fulfillment of objects of the Philanthropic Institution and does not work on profit motive. The petitioner received some huge orders from the M/s. Telco for cable harness which was the reason to request the women working in the Institution increase the production. The aforesaid request to increase production did not find favour with some of the women working including Respondents 3 to 7, who created problems and put obstructions in the work of other women who were working hurriedly as per the request of the petitioner-Organisation. The Respondents 3 to 7 not only caused obstructions to some sincere women working sincerely but also indulged in vandalism by taking out sarees of some of them virtually making a number of other employees naked. The Respondents 3 to 7 also abused and assaulted some of the members of the Executive Committee and co-employees.
8. The conduct of respondents 3 to 7 being detrimental to the reputation of the Institution, a Philanthropic and Charitable Institution and being against the norms of discipline, disciplinary action was taken against them.
Some of them haying suspended, their associates created more problems on 28th August, 1985 which caused an interruption in supply of lunch packets and Laddus to the concerned employees of the Company and causing loss to the petitioner. Charge sheets were issued and after receipt of reply and on enquiry, the charges having found to be proved, the Respondents 3 to 7 were dismissed from service, vide orders all dated 28th April, 1986 (Annexure 3) series-Exhibits M/17 series).
9. The Government of Bihar, vide Notification No. 4/D 2- 16016/86-L and E-1990 dated 26th November, 1986 referred the dispute for adjudication, on the following terms :
'Whether the termination of services of Smt. Devrani Sharma, Smt. Purnima Kar, Smt. Gurdip Kaur, Smt. Dalbir Kaur and Smt. Savinder Kaur, workmen of All India Women's Conference (Golmurhi Constituent Branch) MahilaSharan, Telco Colony, Jamshedpur is justified? If not, whether they are entitled to reinstatement and/or any other relief
10. The petitioner raised preliminary issue that it being a Philanthropic and Charitable Institution do not fall within the ambit of 'Industry' as per Section 2(j) of I.D. Act, 1947.
The learned Presiding Officer by impugned order dated 11th June, 1991 held the petitioner to be an 'Industry' and also doubted the claim of petitioner that it is a Philanthropic and Charitable Institution.
Aforesaid objection has also been raised by the petitioner. Their counsel relied on exception (4) to Section 2(j) i.e. the amended definition of 'Industry' substituted vide Industrial Disputes (Amendment) Act 1982 (Act 46 of 1982), which reads, as follows :
(j) 'industry' means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, Including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not-
(i) any capital has been vested in for the purpose of carrying on such activity; or
(ii) such activity is carried on with a motive to make any gain or profit, and includes-
(a) any activity of the Dock Labour Board established under Section 5-A of the Dock Workers (regulation of Employment) Act, 1948 (9 of 1948);
(b) any activity relating to the promotion of sales or business or both carried on by an establishment, but does not include-
(I) any agricultural operation except, where such agricultural operation is carried on in an integrated manner withany other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.
Explanation-For the purposes of this sub-clause, 'agricultural operation' does not include any activity carried on in a plantation as defined in CI. (f) of Section 2 of the Plantations Labour Act, 1951 (69 of 1951); or
(2) hospitals or dispensaries; or
(3) educational, scientific, research or training institutions; or
(4) institutions owned or managed by organizations wholly or substantially engaged in any charitable, social or philanthropic service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence, research, atomic energy and space; or
(7) any domestic service; or
(8) any activity, being a profession practiced by an individual or body of individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; of
(9) any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like individuals, in relation to such activity is less than ten;
11. The definition of 'Industry' fell for consideration before the Supreme Court in the case MSCO Private Ltd. v. Union of India, reported in AIR 1985 SC 76. By that date, the definition of 'Industry' was amended but not given effect. In this background, the Supreme Court taking into consideration the original definition of 'Industry', as provided under Section 2(j), held that the meaning given to the expression 'Industry' in the I.D. Act, 1947 cannot be relied upon for construing other statutes or statutory instruments, it should be confined to the I.D. Act, 1947. The Hospital, Dispensary or Nursing Homes were held to be 'Industry' having not exempted.
12. In the case of Agricultural Produce Market Committee v. Ashok Harikuri and Anr., reported in 2000 (8) SCC 61. after quoting Paragraph No. 187 of (1978) 2 SCC 213, Bangalore Water Supply and Sewerage Board v. Rajappa, at Paragraph No. 3, the Supreme Court held as follows :--
'This led the legislature to amend the definition of the word 'industry' in Section 2(j) of the aforesaid Act, through amending Act in 1982 but left the said amendment to be given effect from the date to be notified by the Government. Since thereafter with the passage of 18 years inspite of observations of this Court in some cases during this interregnum, the said amendment has not seen the light of the day leaving the situation in the doldrums for the Courts to continue to give its shape.'
13. From the aforesaid discussion and decision of the Supreme Court, it is evident that the amended definition of 'Industry' substituted vide Amended Act 46 of 1982 has not seen the light of the day i.e. not given effect having not published in the Extraordinary Gazette, therefore, the petitioner cannot derive any advantage of Exception (4) to the amended definition of 'Industry' on the ground of Philanthropic and Charitable Institution.
The first question is thus answered against the petitioner.
14. The other question relates to quantum of punishment.
It is not in dispute that the Labour Courts, Tribunals and National Tribunals can grant appropriate relief in case of discharge or dismissal of workmen. Under Section 11-A of the I.D. Act, the Labour Courts, Tribunals or National Tribunals in course of adjudication of proceedings, if satisfied that the order of discharge or dismissal is not justified, it may, by its award, set aside the order of discharge or dismissal and may direct reinstatement of workmen on such terms and conditions, as it thinks fit. It has also power to grant other reliefs including lesser punishment in lieu of discharge or dismissal if on the circumstances of the case it so requires,
15. However, such discretion to award lesser punishment cannot be arbitrary and should be based on the finding as may be arrived on the materials on record and the gravity of charge.
16. In the present case, charges against respondents 3 to 7 related to dereliction of duty, disobedience of orders of superiors and manhandling of colleagues, an action unbecoming of the Institution:
The case of the Management is that it requested the Respondents 3 to 7 and others to raise production to at least seven sets of cable harness per table per day, instead of five sets. On such persuasion, some of the employees, namely. Miss. S.V. Ratna, Mrs. Anjana Das, Mrs. Sarfuenissa and Mrs. Puspa Sharma produced seven sets of cable harness on 23rd August, 1985. It was not appreciated by Mst. Gur-dip Kaur and few others, who along with their associates instigated other women employees in the section not to produce more than five sets and to slow down and restrict the production.
17. Further case of the Management was that when the willing employees did not yield to the pressure and threat of Smt. Gurdip Kaur and her associates, Smt. Kaur and her associates organized an unauthorized meeting during working hours inside the premises of Mahlla Sharan and hatched a plan to frighten, demoralize and beat the employees who produced seven sets of cable harness. On 24th August, 1985 at about 2.45 p.m., when Smt. Gurdip Kaur was on duty in Cable Harness Section, she along with her associates, namely, Smt. Purnima Kar, Smt. Savinder Kaur etc. instigated other employees in the section to restrict production. When the action of Smt. Gurdip Kaur and other four associates was objected to by Mrs- Anjana Das andMrs. S.V. Ratna, the respondents Smt. Devrani Sharma, Smt. Purnima Kar, Smt. Savinder Kaur and Smt. Dalbir Kaur abused them and also threatened of dire consequences. On 24th August, 1985 at about 3.30 p.m. while Mrs. Anjana Das and Miss. S.V. Ratna were coming out of the premises of Mahila Sharan through its main gate, Smt. Gurdip Kaur and associates (respondents herein), forcibly stopped them near the gate and assaulted them. It was also alleged that the behaviour and conduct of Smt. Gurdip Kaur and four other (respondents herein), were against the general expected norms of discipline, particularly in the Philanthropic and Charitable Institution and their behaviour was sufficient to show that they intentionally and deliberately and restricted production and assaulted other employees which warranted initiation of disciplinary action against them.
18. It is not In dispute that the Enquiry Officer held the charges proved against the respondents 3 to 7 and it is in this background, the management dismissed them from service. The Presiding Officer, Labour Court, Jamshedpur also held the charges proved on appreciation of the evidence and made the following observations :
'It has also been proved that on24.8.1985 Miss. S.V. Ratna and Mrs.Anjana Dash were abused andthreatened by the charge-sheetedworkmen within the premises of MahilaSharan and after duty when they cameout the gate of Mahila Sharan, they wereassaulted and manhandled by thesecharge-sheeted workmen. This disorderly and ritious behaviour of thecharge-sheeted workmen had a rationalconnection with the employment of theassailant and victim, therefore it is aclear case subversive of discipline. Considering the entire facts, materials andevidence available on the record, I havecome to the conclusion that chargeslevelled against the charge-sheetedworkmen have been proved. This issueis decided accordingly.'
19. Though, aforesaid specific finding was given by the learned Presiding Officer, Jamshedpur, but merely on the groundthat there was no previous adverse remarks against them the order of dismissal was set aside on the ground that the punishment was disproportionate to the gravity of the charges.
20. I am not agreeable to such finding given by the learned Presiding Officer, as he failed to understand the question whether the punishment is proportionate to the charges or not. In the departmental proceeding and before the Labour Court, the disorderly and riotous behaviour of the respondents as alleged in the charge-sheet having proved, the two of the workmen Miss. S.V. Ratna and Mrs. Anjana Das were abused, threatened, manhandled and were assaulted by these charge-sheeted workmen and the fact that they pulled saree of Mrs. Anjana Das having proved, the punishment of dismissal awarded by Management cannot be stated to be disproportionate to the charges proved. On the other hand, any punishment lesser than dismissal from service for such proved charges itself will be disproportionate to the gravity of charges.
21. The second question is thus also answered against the Respondents 3 to 7.
22. For the reasons aforesaid, I have no option, but to set aside the award dated 28th June, 1993, pronounced on 26th August, 1993 in Reference Case Nos. 5/88 to 8/88. 27/88 to 30/88 and uphold the order of dismissal passed by the management against respondents 3 to 7.
23. The writ petition is allowed. However, in the facts and circumstances of the case, there shall be no order, as to costs.