Municipal Corporation of Greater Bombay Vs. Best Workers' Union and ors. (02.03.1993 - BOMHC) - Court Judgment

B.P. Saraf J.

1. The respondent No. 2 was working as a Bus Conductor with the Bombay Electric Supply and Transport undertaking. A complaint was lodged against him by a lady commuter that on 29.11.1983 when she boarded the bus on route No. 138, Respondent No. 2 who was the conductor collected Rs. 2/- from her as she did not have the necessary change and when she asked back the change while alighting from the bus there was some altercation between her and the Respondent No. 2 whereupon the Respondent No. 2 - bus conductor slapped the said lady commuter and threw all her papers on the floor and even twisted her fingers.

2. On the written complaint of the lady commuter, a domestic enquiry was conducted against the Respondent No. 2 and he was found guilty of misconduct under standing Order No. 20(r). The Inquiry Officer came to the conclusion that the misconduct was conclusively proved against the Respondent No. 2. The Enquiry Officer also observed that in the past also he was found guilty of rude behaviour for which he had been punished. Accordingly, by order dated 18.1.1984 he was dismissed from service.

3. The appeals filed by him before the first Appellant Authority as well as Second Appellate Authority were also dismissed. The Respondent No. 2, thereafter, through his union made an application under Section 78 and 79 of the Bombay Industrial Relations Act, 1946 (the Act) before the Labour Court challenging the order of dismissal passed against him. The Labour Court found the respondent No. 2 guilty of the misconduct. The Labour Court further found that the charges levelled against respondent No. 2 were conclusively proved. it also observed that since the offence committed by the respondent No. 2 was of a grave nature, the punishment of dismissal could not be said to be shockingly disproportionate. The Labour Court found justification for the punishment of dismissal also from the fact that in the past too he had been found guilty of rude behaviour. The Labour Court, therefore, dismissed the application of the respondent No. 2.

4. Against the order of the labour Court, an appeal was filed before the Industrial Court, Maharashtra under Section 84 read with Section 85 of the Act which was numbered as No. IC 106 of 1985. So far as the sufficiency of the evidence on record to prove the charge framed against the employee is concerned, the Industrial Court held that the Labour Court was perfectly justified in holding that the material evidence on record was sufficient to prove the charge. It also observed that there was no material on record to show that the Trying Officer was biased. It was, therefore, held :

'In agreement with the learned Labour Judge, I hold that the employee did assault the lady passenger as alleged by her and committed the alleged misconduct'.

5. The learned Industrial Court then took up the question of punishment. It was contended before it that the punishment was shockingly disproportionate and a lenient view should be taken in the matter. The Industrial Court considered this submission on behalf of the employee. Though it agreed and clearly observed that the misconduct committed was grave one, it felt that the question whether the punishment of dismissal from service was necessary still required consideration. In that context, the Industrial Court emphasised the of punishment in order to give opportunity to an employee to improve his conduct in future and 'try to open a new page of his life' and applying this philosophy to the case before it, allowed the appeal and directed the employer to reinstate the respondent No. 2 in service, though without back wages. While directing reinstatement, it was observed that the employee would not be entitled to any benefit of promotion and next 3 increments. It is this order of the Industrial Court directing the petitioner to reinstate the Respondent No. 2 bus conductor, whom he himself found to be guilty of grave misconduct, only not he basis of his own opinion that a lenient view should be taken in the matter of punishment, which is under challenge in this writ petition.

6. It will be evident from the foregoing discussion that there is not dispute about the incident. The concurrent finding of all the authorities about the commission of the misconduct by the respondent No. 2 - employee and the grave nature of the same is also not in dispute. The Industrial Court itself has categorically affirmed the findings of all the authorities below in regard to the assault of the lady passenger as alleged by her and has also, in no less categorical terms, stated in para 17 of his order that 'the misconduct is a grave one'. The only count on which he differed with the concurrent finding of all authorities below is in regard to punishment.

7. From a reading of the order of the Industrial Court, it appears that it was under the impression that while disposing of an appeal under Section 84 read with Section 85 of the Act, it had all the powers of the domestic Tribunal and hence, it was free to take a different view in any matter and substitute the opinion of the employer or the authorities below by his own opinion. It may be pertinent to mention that the appeal lies under Section 84 of the Bombay Industrial Relations Act, 1946 to the Industrial Court against an order of the Labour Court. The power of the Labour Court itself, under Section 78 of the Act, is to decide, inter alia, disputes regarding the propriety or legality of an order passed by the employer acting or purporting to act under the Standing orders. This power of the Labour Court under Section 78 came up for interpretation before this Court in Shrinivas Krishna, v. Bombay Municipal Corporation, 1984 L. I. C. 1277 where it was held (at 1279) :

'................ Section 78, even as amended, does not confer upon the Labour Court appellate powers and does not empower it to interfere with the finding made by the domestic Tribunal because it takes a different view of the evidence led before the domestic Tribunal'.

The appeal to the Industrial Court is against the order of the Labour Court. It cannot, therefore, in any event, have powers wider than the Labour Court, which itself is not empowered to interfere with the finding of the domestic Tribunal simply because it takes a different view of the evidence.

8. Otherwise also, having fully confirmed the dinging of all the authorities including Labour Court in regard to the misconduct of the employee and having also held that the misconduct by the employee was a grave one, (in my opinion), there was no justification for the Industrial Court to show generosity and to interfere with the punishment imposed by the employer. Evidently, there is no illegality or impropriety in awarding the punishment of dismissal. Keeping in view the seriousness and graveness of the misconduct, the employer was fully within its bounds to dismiss the employee, which it did. Nothing is wrong in this punishment. It is well settled that in such circumstances, the decision of the employer should prevail unless there are strong compelling reasons to justify any deviation therefrom. It must not be forgotton that the employee is to serve under the employer concerned. That being so, if in a given case, the employer finds that his misconduct is serious and grave and the only proper punishment that can be inflicted on him is the punishment of dismissal from service and if no illegality or impropriety can be found with such decision of the employer, the Court should be extremely slow and circumspect in interfering with the decision of the employer. It must be remembered that the powers of the Industrial Court in an appeal under Section 84 are limited and in exercise of such power, it cannot substitute its own decision for that of the Labour Court. In fact, the power of the Labour Court. In fact the power of the Labour Court itself is limited to decide the propriety or legality of an order passed by an employer. He himself cannot sit as a Court of appeal and interfere with the findings of the domestic Tribunal merely because it holds a different view in the matter. Interference based on difference of opinion is thus outside the domain of the Labour Court itself. The Industrial court, hearing an appeal against the order of the Labour Court, therefore, cannot have powers wider than the Labour Court.

9. Considering the facts and circumstances of this case, the undisputed findings of the Labour Court and the Industrial Court regarding the graveness of the misconduct of the employee and the decision of this Court referred to above, I am of the clear opinion that the Industrial Court acted beyond its jurisdiction in reversing the order of dismissal and substituting it with its own order of reinstatement. Under the circumstances, the order of the Industrial Court cannot be allowed to stand. The same is, therefor, set aside and quashed.

10. In the result, the writ petition is allowed. The rule is made absolute.

11. No order as to costs.