Anantnathji Maharaj JaIn Temple and Its Sadharan Funds Vs. Rajan G. Pandey and anr. - Court Judgment

Excerpt:
labour and industrial - reinstatement - section 11 a of industrial disputes act, 1947 - petitioners have challenged reinstatement of respondents with 50% back wages - when misconducts are proved in a fair and proper domestic enquiry it is for employer to consider question of punishment - there was no justification for respondent workman to assault and to give slap on his co-workman - respondent was not justified to force co-workman to put his thumb impression on papers - no body can force anyone to put his signature or thumb impression on papers with which he or she does not agree - misconduct has been proved in domestic enquiry - respondent was also found guilty of remaining absent unauthorisedly and without permission - labour court ought not to have interfered with punishment imposed by petitioner - held, no interference required with order of punishment of dismissal of respondent workman - respondents not entitled for reinstatement. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - 4. it is very well settled that when the misconducts are proved in a fair and proper domestic enquiry, it is for the employer to consider the question of punishment and it is not for the court to interfere with such punishment unless it is shockingly disproportionate and unless no reasonable man would act in that manner.orderr.j. kochar, j. 1. the petitioner is a public trust owning a jain temple wherein the respondent watchman was employed in the year 1983. the petitioner had issued a charge sheet dated april 9, 1990 alleging two acts of misconducts i.e. assault en a co-workman shri ahire on february 5, 1990 and for remaining unauthorisedly absent from february 6, 1990 without any leave application. he was, earlier suspended with effect from march 23, 1990 pending enquiry in the charges of assault and unauthorised absence. the respondent workman appears to have applied for leave on february 20, 1990 which according to the petitioner, was orally rejected and the workman was informed that his leave was rejected and that he should report for work. it may be stated here that the respondent workman was provided service quarters in the premises of the temple. the respondentworkman submitted his written explanation denying the charges. the petitioners held adomestic enquiry in the charges against the respondent workman. the respondentworkman participated in the enquiry and cross examined the witnesses examined on behalf of the petitioner. the enquiry officer submitted his report on december 10, 1990 finding the respondent workman guilty of the misconducts levelled against him. the petitioner acting on the findings of the inquiry officer passed an order of dismissal dated january 17, 1991 dismissing him from employment.2. aggrieved by the aforesaid order of dismissal the respondent workman raised industrial dispute challenging the propriety and legality of the order of dismissal and praying for the relief of reinstatement with full back wages and continuity of service with effect from january 17, 1991. the said dispute was referred for adjudication to the labour court, respondent no. 2.3. both the parties completed their pleadings and adduced documentary and oral evidence before the labour court. on the basis of the material on record, the labour court by its part i award held that the enquiry was fair and proper. the labour court proceeded; further to decide the question of perversity of the findings of the enquiry officer and the proportionality of the order of punishment in exercise of its powers under section 11-a of the industrial disputes act, 1947. the labour; court has categorically recorded its findings that the enquiry officer had discussed the evidence of both the parties and had held the workman guilty of the charges by giving cogent reasons. while accepting the evidence led on behalf of the petitioners, the labour court has in no uncertain terms recorded that the findings of the enquiry officer did not suffer from any infirmity and that the evidence adduced by the petitioner was sufficient to hold the workman guilty of the charges. the labour court has finally concluded that the misconducts levelled against the workman were proved by acceptable evidence on record. however, the labour court proceeded to interfere with the punishment of dismissal being too harsh considering the gravity of the charges. the labour court has relied upon certain judgments. curiously enough, the labour court has found that both the charges viz., unauthorised absence and slapping of the co-workman and taking his thump impression forcibly on some papers were the misconducts not or grave nature to warrant extreme punishment of dismissal. the labour court has tried to justify its conclusion on the ground that human being is subject to error and that he should be given an opportunity to improve his behaviour and conduct by imposing minor penalty instead of drastic punishment of dismissal. the labour court has further buttressed its conclusions by saying that such quarrels between the two groups of workmen do take place. the labour court has further observed that the misconduct committed by the respondent did not disturb the industrial peace for running of the industry. according to the labour court, both the misconducts were not of grave nature warranting the extreme punishment of dismissal. the labour court has finally concluded that the extreme punishment of dismissal was not commensurate with the gravity of misconduct levelled against him. finally, while interfering with the punishment, the labour court has imposed punishment of denial of 50% back wages and awarded reinstatement with 50% back wages. the petitioners have challenged this award under article 226 of the constitution of india.4. it is very well settled that when the misconducts are proved in a fair and proper domestic enquiry, it is for the employer to consider the question of punishment and it is not for the court to interfere with such punishment unless it is shockingly disproportionate and unless no reasonable man would act in that manner. in the present case, according to me, there was no justification for the respondent workman to assault and to give a slap on his co-workman. the respondent workman was also not at all justified to force the co-workman to put his thumb impression on some papers. it appears that when the co-workman shri ahire refused to put his thumb impression on some papers, he was assaulted by the respondent. such an act cannot be condoned by calling it not a grave act of misconduct. assault on a co-workman is of grave and serious nature. in the present case, mere was not only an assault but the respondent workman was trying to get the thumb impression of the co-workman on some papers which act is equally serious. nobody can force anyone to put his signature or thumb impression on some papers or on some writings with which he or she does not agree. this conduct on the part of the respondent is of serious and grave nature and warrants the extreme punishment of dismissal from employment. this misconduct has been proved in the domestic enquiry and the labour court has recorded the finding that the enquiry was fair and proper and the findings were not perverse and the misconduct was proved from the evidence on record. the respondent workman was also found guilty of remaining absent unauthorisedly and without prior permission. this is the second misconduct alleged against the workman. he is occupying the service quarters in the temple premises. it cannot be disbelieved that the workman must have been informed that his leave was not sanctioned. in spite of this communication, the respondent workman remained absent. had it been the only misconduct against the respondent, one could have considered sympathetically but the conduct of the respondent workman in forcing the co-workman to put his thumb impression on some writing with which he did not agree and on the refusal by the co-workman to put his thumb impression he had assaulted him on the work premises. such behaviour or conduct cannot be tolerated by the employer who is the sole judge of the circumstances, whether the peace in the premises would be disturbed or not and what punishment should be imposed for such acts of misconduct. according to me, the labour court ought not to have interfered with the punishment imposed by the petitioner employer in the facts and circumstances of this case. it is for the employer to impose a suitable or reasonable punishment in accordance with law. i do not find any extenuating circumstances to interfere with the order of punishment of dismissal of the respondent workman. i therefore, allow the petition and make the rule absolute in terms of prayer clause (a) with no orders as to costs.5. shri anilkumar on behalf of the petitioner has offered by way of settlement the full amount of gratuity and retrenchment compensation and other benefits provided the respondent workman vacates the service - quarters which he is still occupying unauthorisedly. it would be for the respondent workman to consider the offer and communicate the petitioner his decision within four weeks from today.

Judgment:
ORDER

R.J. Kochar, J.

1. The Petitioner is a public trust owning a Jain Temple wherein the respondent watchman was employed in the year 1983. The Petitioner had issued a charge sheet dated April 9, 1990 alleging two acts of misconducts i.e. assault en a co-workman Shri Ahire on February 5, 1990 and for remaining unauthorisedly absent from February 6, 1990 without any leave application. He was, earlier suspended with effect from March 23, 1990 pending enquiry in the charges of assault and unauthorised absence. The respondent workman appears to have applied for leave on February 20, 1990 which according to the petitioner, was orally rejected and the workman was informed that his leave was rejected and that he should report for work. It may be stated here that the respondent workman was provided service quarters in the premises of the temple. The respondentworkman submitted his written explanation denying the charges. The Petitioners held adomestic enquiry in the charges against the respondent workman. The respondentworkman participated in the enquiry and cross examined the witnesses examined on behalf of the petitioner. The enquiry officer submitted his report on December 10, 1990 finding the respondent workman guilty of the misconducts levelled against him. The petitioner acting on the findings of the inquiry officer passed an order of dismissal dated January 17, 1991 dismissing him from employment.

2. Aggrieved by the aforesaid order of dismissal the respondent workman raised industrial dispute challenging the propriety and legality of the order of dismissal and praying for the relief of reinstatement with full back wages and continuity of service with effect from January 17, 1991. The said dispute was referred for adjudication to the Labour Court, respondent No. 2.

3. Both the parties completed their pleadings and adduced documentary and oral evidence before the Labour Court. On the basis of the material on record, the Labour Court by its part I award held that the enquiry was fair and proper. The Labour Court proceeded; further to decide the question of perversity of the findings of the enquiry officer and the proportionality of the order of punishment in exercise of its powers under Section 11-A of the Industrial Disputes Act, 1947. The Labour; Court has categorically recorded its findings that the enquiry officer had discussed the evidence of both the parties and had held the workman guilty of the charges by giving cogent reasons. While accepting the evidence led on behalf of the petitioners, the Labour Court has in no uncertain terms recorded that the findings of the enquiry officer did not suffer from any infirmity and that the evidence adduced by the petitioner was sufficient to hold the workman guilty of the charges. The Labour Court has finally concluded that the misconducts levelled against the workman were proved by acceptable evidence on record. However, the Labour Court proceeded to interfere with the punishment of dismissal being too harsh considering the gravity of the charges. The Labour Court has relied upon certain judgments. Curiously enough, the Labour Court has found that both the charges viz., unauthorised absence and slapping of the co-workman and taking his thump impression forcibly on some papers were the misconducts not or grave nature to warrant extreme punishment of dismissal. The Labour Court has tried to justify its conclusion on the ground that human being is subject to error and that he should be given an opportunity to improve his behaviour and conduct by imposing minor penalty instead of drastic punishment of dismissal. The Labour Court has further buttressed its conclusions by saying that such quarrels between the two groups of workmen do take place. The Labour Court has further observed that the misconduct committed by the respondent did not disturb the industrial peace for running of the industry. According to the Labour Court, both the misconducts were not of grave nature warranting the extreme punishment of dismissal. The Labour Court has finally concluded that the extreme punishment of dismissal was not commensurate with the gravity of misconduct levelled against him. Finally, while interfering with the punishment, the Labour Court has imposed punishment of denial of 50% back wages and awarded reinstatement with 50% back wages. The petitioners have challenged this award under Article 226 of the Constitution of India.

4. It is very well settled that when the misconducts are proved in a fair and proper domestic enquiry, it is for the employer to consider the question of punishment and it is not for the Court to interfere with such punishment unless it is shockingly disproportionate and unless no reasonable man would act in that manner. In the present case, according to me, there was no justification for the respondent workman to assault and to give a slap on his co-workman. The respondent workman was also not at all justified to force the co-workman to put his thumb impression on some papers. It appears that when the co-workman Shri Ahire refused to put his thumb impression on some papers, he was assaulted by the respondent. Such an act cannot be condoned by calling it not a grave act of misconduct. Assault on a co-workman is of grave and serious nature. In the present case, mere was not only an assault but the respondent workman was trying to get the thumb impression of the co-workman on some papers which act is equally serious. Nobody can force anyone to put his signature or thumb impression on some papers or on some writings with which he or she does not agree. This conduct on the part of the respondent is of serious and grave nature and warrants the extreme punishment of dismissal from employment. This misconduct has been proved in the domestic enquiry and the Labour Court has recorded the finding that the enquiry was fair and proper and the findings were not perverse and the misconduct was proved from the evidence on record. The respondent workman was also found guilty of remaining absent unauthorisedly and without prior permission. This is the second misconduct alleged against the workman. He is occupying the service quarters in the temple premises. It cannot be disbelieved that the workman must have been informed that his leave was not sanctioned. In spite of this communication, the respondent workman remained absent. Had it been the only misconduct against the respondent, one could have considered sympathetically but the conduct of the respondent workman in forcing the co-workman to put his thumb impression on some writing with which he did not agree and on the refusal by the co-workman to put his thumb impression he had assaulted him on the work premises. Such behaviour or conduct cannot be tolerated by the employer who is the sole judge of the circumstances, whether the peace in the premises would be disturbed or not and what punishment should be imposed for such acts of misconduct. According to me, the Labour Court ought not to have interfered with the punishment imposed by the petitioner employer in the facts and circumstances of this case. It is for the employer to impose a suitable or reasonable punishment in accordance with law. I do not find any extenuating circumstances to interfere with the order of punishment of dismissal of the respondent workman. I therefore, allow the petition and make the rule absolute in terms of prayer Clause (a) with no orders as to costs.

5. Shri Anilkumar on behalf of the petitioner has offered by way of settlement the full amount of gratuity and retrenchment compensation and other benefits provided the respondent workman vacates the service - quarters which he is still occupying unauthorisedly. It would be for the respondent workman to consider the offer and communicate the petitioner his decision within four weeks from today.