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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> High Court of Bombay Punishment can be interfered only if Court comes to a positive conclusion that, penalty imposed on the employee shocks its conscience MANU/MH/0355/2024 - (22 Jan 2024) </td> </tr> <tr> <td align="left" valign="top">Globe Theaters Pvt. Ltd. Vs. Joseph Barretto (Neutral Citation: 2024:BHC-AS:2961)</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">Present are cross Petitions filed by the employer and the workman challenging the award passed by the Presiding Officer. By the impugned Award, the Reference relating to dismissal of employee from service has been answered in affirmative and punishment of dismissal imposed on him has been set aside by replacing the same with penalty of withholding of two increments from 10 September 2013. The Labour Court has further directed the employer to reinstate the workman on his original post with continuity of service and other consequential benefits alongwith 50% backwages from 11 September 2013. 
The employer is aggrieved by the entire Award and has filed Writ Petition. On the other hand, the workman is aggrieved by the Award to the limited extent of denial of 50% backwages and imposition of penalty of withholding of two increments and had filed Writ Petition. 
In the present case, the misconduct of giving threat to the temporary Booking Clerk by workman is proved in the enquiry. The Labour Court has not noticed any perversity in the said finding recorded by the Enquiry Officer. The misconduct alleged against the workman has been proved in the enquiry. The only issue is the correctness of penalty of dismissal from service imposed upon him. 
The Apex Court has repeatedly held that the scope of judicial review in quantum of punishment is very limited and restricted to exceptional cases. The choice of penalty is in the realm of the employer and courts or tribunals cannot substitute their opinion with that of the employer. It is beyond jurisdiction of Courts or Tribunals to hold that a particular penalty is warranted in facts and circumstances of the case. In extremely rare cases, where the punishment is shockingly disproportionate that interference in its quantum is warranted. A mere statement by Court of punishment being disproportionate is not sufficient. The punishment can be interfered only if the Court comes to a positive conclusion that the penalty imposed on the employee shocks its conscience. Thus, mere finding of disproportionality of penalty is not sufficient. 
The misconduct proved against the workman was serious in nature. The Labour Court has considered the fact that this was the only incident of misconduct in the entire service career of the workman. That he rendered blotless services in excess of 30 years when the incident occurred. In Depot Manager, A.P. SRTC V/s., B. Swamy, the Apex Court has held that the gravity of the misconduct cannot be minimized by non-indulgence by the workman in similar misconduct in the past. Therefore, past clean service record cannot be the sole factor for determining the nature of penalty for misconduct proved. Rendering of long duration of service and past clean record in the present case, can at best, be the mitigating circumstances, without undermining the gravity of misconduct. 
Despite serious charge of threatening fellow employees being proved, the workman cannot be rewarded with 50% backwages. In ordinary course, this Court would have upheld the penalty of dismissal from service considering the nature of the charge proved against the workman. However, considering the fact that he has otherwise rendered blotless services for over 30 years and has already crossed the age of superannuation, present Court is inclined to grant lumpsum compensation in lieu of reinstatement and backwages. Therefore, lumpsum of compensation of Rs. 5,00,000 would be appropriate in the facts and circumstances of the present case. 
Award passed by the Labour Court, is modified to the extent that the Employershall pay to the workman-Joseph Barretto a lumpsum compensation of Rs. 5,00,000 in lieu of reinstatement and backwages. Beyond the lumpsum compensation so awarded, the workman shall not be entitled to any further amounts from the Employer.Writ Petition filed by the Workman is dismissed and Writ Petition filed by the Employer is partly allowed.</td> </tr> <tr> <td align="left" valign="top" ></td> </tr> <tr> <td align="left" valign="top" >Tags : Award, Penalty, Legality</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>