ORDER
Srinivasan, J.
1. The Management of South India Sugars Ltd., Mundiambakkam, has filed this writ petition challenging the award passed by the I Additional Labour Court, Madras in I.D. No. 75 of 1981. By the award, the Labour Court has confirmed the findings given by the enquiry officer in the domestic enquiry that the second respondent herein was guilty of a conduct which can be characterised as subversive of discipline and that he was guilty of the charges levelled against him. But, the Labour Court interfered with the punishment awarded to the second respondent. The Labour Court took the view that the dismissal of the second respondent from service was an extreme punishment which was disproportionate to the misconduct and there was no valid ground for upholding the said punishment. Consequently, the Labour Court set aside the order of dismissal and imposed a punishment of deprivation of salary and all monetary benefits including increment due to the second respondent for a period of two years from the date of dismissal.
2. The relevant facts are shortly these:
The workmen of the petitioner factory were on strike from 27.1.1979. The petitioner factory had been engaging watch and ward staff besides permanent members of the watch and ward department, by virtue of contracts with Security and Detective Bureau Private Limited. The petitioner factory was paying for the personnel sent by the Security and Detective Bureau to keep guard over the factory and its property. On 19th February, 1979, a security guard by name Rajalingam was assaulted by the second respondent and three others at about 9.30 A.M. when he was proceeding to do a particular duty which he was called upon to do by his superiors. Charges were framed against the second respondent and others that they were guilty of misconduct within the meaning of Standing Order 32 (1) and (m) of the Company. The defence taken by the second respondent was that he was nowhere near the spot where the offence was alleged to have taken place and he had not even seen the concerned security guard Rajalingam. In the domestic enquiry, his defence was found against and the enquiry officer found that all the persons who stood charged excepting one, were guilty of the misconduct and that they deserved punishment. Consequently, they were all dismissed from service.
3. The second respondent alone raised an industrial dispute which was referred to the Labour Court. The Labour Court found on the evidence that the conduct of the second respondent could be described as an act subversive of discipline as he assaulted Rajalingam which would certainly demoralise the employees of the petitioner company. It was stated categorically by the Labour Court that undoubtedly the conduct of the 2nd respondent had to be characterised as subversive of discipline. It was also found that the second respondent was guilty of the charge levelled against him and his plea that he did not know Rajalingam was unacceptable. The Labour Court also held that the occurrence took place on the access road leading to the factory and it was certainly factory premises which could not be said to be outside the factory premises. However, the Labour Court held that Rajalingam was not an employee of the petitioner company in view of the definition of 'employee' found in the Labour Court in that Rajalingam was sent by the Security and Detective Bureau to do service in the factory and as soon as the work in the factory is over, he would go back to his parent department and the Labour Court has observed that though he does work in the factory and his name is found in the attendance registers and he has signed the Section Standing Instructions maintained by the Company, he cannot be said to be an 'employee' as defined in the Standing Orders.
4. Standing Order 2 (C) defines an employee as follows:
Employee' means and includes any worker employed in the Factory or in the Factory premises, whose token number and name are included in the departmental Master Rolls, and includes transport workers, Watch and Ward personnel and persons employed in any other kind of work incidental to manufacturing process.
As per the latter part of the definition, Rajalingam is a person belonging to the Watch and Ward Personnel and he is, therefore, an 'employee' as defined by the Standing Order. Under Section 2 (1) of the Factories Act, a 'worker' includes a person employed directly or by or through any agency including a contractor. Under the Employees' Provident Funds and Miscellaneous Provisions Act and the Employees State Insurance Act also, the definition of 'employee' includes a person who is employed and who gets his wages directly or indirectly from the employer. Thus, the statutory definitions as well as the definition found in the Standing Orders of the Company would certainly bring within their fold the person concerned in this case viz., Rajalingam. Hence, the Labour Court is clearly in error in taking the view that Rajalingam is not an 'employee'. That finding of the Labour Court is erroneous and it has to be set aside.
5. It is only as a consequence to the finding that Rajalingam is not an employee, the Labour Court took the view that the punishment awarded to the second respondent was shockingly disproportionate as the person assaulted by him was only an alien and not a member of the staff of the factory. The relevant observation of the Labour Court is in the following terms:..Whatever it is dismissal of the workman for an assault of a security guard who is virtually an alien to the staff of the factory cannot be said to be a grave and serious misconduct which should invite the extreme punishment of dismissal....
We do not agree with the reasoning of the Labour Court that an assault on a security guard is not grave and serious misconduct. If the Labour Court thought of laying down a proposition of law that an assault on a security guard who is alien to the staff is not a grave and serious misconduct, it is clearly erroneous. Such a proposition is wholly unsustainable. Whether a member of Watch and
Ward staff is a permanent employee of the factory or whether he has been engaged on a contract through an agency, so long as he is performing services for the factory as a member of the Watch and Ward staff, any assault on him is certainly a grave misconduct. If a worker chooses to assault even a member of the security staff, there cannot be a graver misconduct than that. Such a misconduct would undoubtedly lead to insecurity for the loyal workers and the factory.
6. The charge framed in this case is that the worker is guilty of misconduct under Standing Order 32 (1) and (m). Standing Order 32 (1) and (m) read thus:
(1) Riotious or disorderly behaviour during working hours of the Factory, or any act subversive of discipline. (m) carrying concealed weapons, fighting or attempting bodily injury to another employee, drunkenness, bootlegging or conduct which violates common decency or morality of the community or threatening or intimidating any employee of the Factory.
7. The Labour Court has given a finding that the charge made against the second respondent has been proved. In the light of the finding given by him that Rajalingam is not an employee of the factory, it should be taken that the Labour Court has found only the charge against the second respondent under Standing Order 32 (1). Such riotous and disorderly behaviour during working hours of the Factory or any act subversive of discipline is certainly a serious and grave misconduct which would warrant the extreme punishment of dismissal. The implied finding of the Labour Court that the second respondent is not guilty of the charge under Standing Order 32 (m) is erroneous in view of our finding that Rajalingam is an 'employee' as defined by the Standing Orders. Hence, the second respondent is guilty also of the misconduct under Standing Order 32 (m).
8. One of the arguments advanced before the Labour Court is that the misconduct took place not during the factory hours as the time was about 7.00 a.m. Though the Labour Court docs not give any finding on that aspect of the matter and has merely left the issue by making a reference to the argument advanced by learned Counsel for the second respondent before him, the evidence on record proves that the misconduct took place only at about 9.30. a.m. In fact, the charge itself was that it was at about 9.30 a.m. the second respondent assaulted the security guard. There is no dispute that 9.30 a.m. is during the working hours of the factory. Hence, both the charges viz., that he is guilty of misconduct under Standing Order 32 (1) and Standing Order 32 (m) have been established by evidence on record.
9. The Supreme Court had occasion to consider the various acts of misconduct in Delhi Cloth and General Mills Company Ltd., v. Its Workmen (1969)2 L.L.J. 755. That arose out of an award by the Industrial Tribunal by which two scheme were framed relating to payment of gratuity to the workmen employed in four textile mills in Delhi region. The question which arose before the Supreme Court was whether any provision was to be made in the scheme with regard to the misconduct of the workmen for which they should be deprived of gratuity. While discussing that case, the Supreme Court laid down the law in the following terms:
A bare perusal of the schedule shown that the expression 'misconduct' covers a large area of human conduct. On the one hand are the habitual late attendance, habitual negligence and neglect of work; on the other hand are riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline, wilful insubordination or disobedience. Misconduct falling under several of these latter heads of misconduct may involve no direct loss or damage to the employer, but would render the functioning of the establishment impossible or extremely hazardous. For instance, assault on the manager of an establishment may not directly involve the employer in any loss or damage, which could be equated in terms of money, but it would render the working of the establishment impossible. One may also envisage several acts of misconduct not directly involving the establishment in any loss, but which arc destructive of discipline and cannot be tolerated. In one of the cases cited any detailed examination of what misconduct would or would not involve to the employer loss capable of being compensated in terms of money was made it was broadly stated in the cases which have come before this Court that notwithstanding dismissal for misconduct a workmen will be entitled to gratuity after deducting the loss occasioned to the employer. If the cases cited do not enunciate any broad principle we think that in the application of those cases as precedents a distinction should be made between technical misconduct which leaves no trial of indiscipline, misconduct resulting in damage to the employers' property, which may be compensated by forfeiture of gratuity or part thereof, and serious misconduct which though not directly causing damages, such as acts of violence against the management or other employees or riotous or disorderly behaviour, in or near the place of employment is conducive to grave indiscipline. The first should involve no forfeiture the second may involve forfeiture of an amount equal to the loss directly suffered by the employer in consequence of the misconduct and the third may entail forfeiture of gratuity due to the workmen..
That workmen dismissed or discharged from 'services for misconduct will not be entitled to gratuity if guilty of conduct involving acts of violence against the management or other employees, or riotious or disorderly behaviour in or near the place of employment.
10. There can be no doubt that the second respondent is guilty of such riotious and disorderly behaviour which would deprive him of his gratuity under the Payment of Gratuity Act also. Section 4 (2) (vi) of the Payment of Gratuity Act provides that 'notwithstanding anything contained in Sub-clause (1), the gratuity payable to an employee may be wholly or partially forfeited if the service of such employee have been terminated for his riotious and disorderly conduct or any other act of violence on his part.' Section 9 of the Payment of Bonus Act, 1965, provides that an employee shall be disqualified from receiving bonus under the Act, if he is dismissed from service for riotious or violent behaviour while on the premises of the establishment. Thus, the Legislature has taken care to discourage statutorily any riotous of violent behaviour on the part of the employee. It cannot be said that when a worker or employee is found guilty of riotous or violent behaviour, the punishment of dismissal is extreme or that it is shockingly disproportionate to his misconduct.
11. Learned counsel for the writ petitioner places reliance on the judgment of the Supreme Court in Bengal Bhatdee Coal Company v. Ram Prakash Singh (1963)1 L.L.J. 291. In that case it was held that obstructing the willing workmen from doing their work during a strike period is serious misconduct warranting dismissal.
12. It is contended by learned Counsel for the second respondent that after the introduction of Section 11A in the Industrial Disputes Act, the Tribunal of Labour Court has a very wide power to interfere with the punishment awarded by the management. According to learned Counsel, if the Labour Court is satisfied that the Order of discharge or dismissal is not justified, it can set aside the order and direct reinstatement of the workmen on such terms and conditions as it may think fit. According to learned Counsel, the Labour Court has taken into consideration all the facts and circumstances of the case and come to the conclusion that the extreme penalty of dismissal is not warranted in this case and, therefore, the satisfaction of the Labour Court cannot be interferred with by this Court sitting in writ jurisdiction. Learned counsel points out the distinction between the view taken by the Supreme Court prior to the introduction of Section 11A of the Industrial Disputes Act and the view taken by the Supreme Court after the introduction of Section 11A in the Act, the Supreme Court held in India Marine Service (Private) Ltd. v. Their Workmen (1963)1 L.L.J. 122 that the misconduct of a workman by abusing his superiors in the presence of others within the place of employment would justify an order of dismissal. It was held that the Tribunal was not competent to go behind the finding of the management and interfere with the order passed by the management. In fact, the question of interferring with the punishment without setting aside the finding given by the management in the domestic enquiry did not arise for consideration as at that time Section 11A was not in the statute book.
13. After the introduction of Section 11A of the Industrial Disputes Act, a case before the Supreme Court in which the misconduct was hurling abuses against superiors by a worker. In Ved Prakash Gupta v. M/s. Delton Cable India (P) Ltd. : (1984)ILLJ546SC . It was held that the dismissal of an employee on charge of abuse of some worker and officer of management was unjustified particularly in the absence of any previous adverse remark against him. The Supreme Court observed as follows:.There is nothing on record to show that any previous adverse remark against the appellant had been taken into consideration by the management for awarding the extreme penalty of dismissal from service to the appellant even if he had in fact abused in filthy language Durg Singh and S.K. Bagga, we are therefore of the opinion that the punishment awarded to the appellant is 'shockingly disproportionate regard being had to the charge framed against him. We are also of the opinion that no responsible employer would even impose in like circumstances the punishment of dismissal to the employee and that victimization or unfair labour practice could well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of abuse of some worker or officer of the management by the appellant within the premises of the factory. We therefore hold that the termination of the appellant's service is invalid and unsustainable in law, and that he is entitled to reinstatement with full backwages and other benefits including continuity of service....
14. The above passage was quoted and the Rule was applied by the Gujarat High Court in Chootalal Vithaldas Kotecha v. Halar Salt and Chemical Works (1986)1 L.I.C. 938. Reliance is placed upon the above decision by learned Counsel for the second respondent.
15. It is no doubt true that after the introduction of Section 11A in the Industrial Disputes Act,' power has been conferred on the Labour Court or the Industrial Tribunal to interfere with punishment awarded by the management if it is satisfied that the punishment is not justified on the facts and circumstances of the case, but the power cannot be exercised arbitrarily. It has to be exercised in a judicious manner and it is always subject to judicial review.
16. As pointed out by the Calcutta High Court in M/s. Ludlow Jute Co. Ltd., v. Nanda Kumar Singh 1981 L.I.C. 1304 the power of the Tribunal has to be exercised on the facts and circumstances of the case and it is not a mechanical exercise of discussion. It was held that there should be proper reasons for the Tribunal to interfere with the punishment awarded by the management.
17. In Andhra Pradesh State Road Transport Corporation v. Additional Labour Court-Cum-Indus-trial Tribunal Hyderabad (1984) 1 L.L.J.128, it was held as follows:
No doubt, under Section 11 A of the Industrial Disputes Act, even in a case where a Tribunal upholds the findings of misconduct recorded by the management at the domestic enquiry the Tribunal can interfere with the punishment awarded by the management and alter the same. But, in exercising the discretionary power conferred on the Tribunal By Section 11-A to interfere with the punishment, the discretion should not be exercised in an arbitrary manner but it should be exercised in a judicial and judicious manner. Before interfering with the punishment imposed by the management, the Tribunal must take into consideration all the relevant facts and factors and can interfere with the punishment imposed by the management only when it comes to the conclusion that the punishment imposed is extremely harsh and unjust and wholly disproportionate to the misconduct proved. The altered punishment imposed by the Tribunal, however, should not amount to absolving the employee of the misconduct or make the punishment merely illusory and allow the employee to go scot-free, particularly when the charges are found to be grave in nature.
17. We agree with the propositions stated therein.
18. In Christian Medical College Hospital Employees' Union v. Christian Medical College Vellore Association (1988)1 L.L.J.263, the Supreme Court held that the decision of the Industrial Tribunal or Labour Court is open to judicial review by the High Court and Section 11A of the Industrial Disputes Act cannot be constructed to confer an arbitrary power on the Tribunal or Labour Court. It was held that the power under the Section has to be exercised judicially and the Industrial Tribunal or Labour Court is expected to interfere with the decision of the management under Section 11-A of the Act only if it is satisfied that the punishment imposed is highly disproportionate to the degree of the guilt of the workmen concerned. It was also held that the Tribunal or Labour Court has to give reasons for its decision.
19. The reason given by the Labour Court in this case has been found by us to be erroneous. Apart from that reason, the Labour Court has not pointed out any circumstance which would warrant an interference with the punishment awarded by the management. Having held that the second respondent is guilty of riotous and disorderly behaviour within the factory premises during working hours, there is nothing on record to show that the punishment imposed on the second respondent by the management is highly disproportionate to the misconduct committed by him. In the circumstances, we find that the award passed by the Labour Court is wholly unjustified and it has to be quashed.
20. Consequently, the writ petition is allowed. The order passed by the Labour Court in I.D.No. 75 of 1981 is quashed. In view of the fact that the second respondent is a worker, we make no order as to costs.