Sandeep V. Marne JUDGMENT
Sandeep V. Marne, J.
1. These are cross Petitions filed by the employer and the workman challenging the award dated 8 January 2020 passed by the Presiding Officer, 6th Labour Court, Mumbai. 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 on 10 September 2013 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 No.7238 of 2023. 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 No. 5284 of 2023.
2. M/s. Globe Theaters Private Limited (employer) is a private limited company engaged in the business of exhibition of films and runs a famous movie theater named 'Regal Cinema' in Mumbai. Mr. Joseph Barretto (workman) was employed on the post of Operator at Regal Cinema with effect from 15 June 1980. Disciplinary Enquiry was initiated against the workman by service of charge-sheet dated 6 November 2012. It was alleged that on 2 November 2012 the workman entered in the booking counter of the Cinema and threatened Mr. Krishna Babu Gumala, a temporary Booking Clerk stating that he was taking away the jobs of Union members and that the workman threatened said temporary Booking Clerk that he would be beaten severely outside the gate in the event of he continuing to report for work. Accordingly following misconduct was alleged as per Model Standing Orders:
"1. Drunkenness, riotous, disorderly or indecent behavior on the premises of the Establishment.
2. Commission of any act subversive of discipline or good behaviour on the premises of the Establishment."
3. The workman denied the charges and submitted his Reply dated 8 November 2012. After conducting enquiry, the Enquiry Officer submitted report dated 16 August 2013 holding that the charges leveled against the workman were proved. The workman submitted his reply to the report of the Enquiry Officer on 5 September 2013. The employer thereafter passed order dated 10 September 2013 terminating the services of the workman by way of dismissal with effect from 11 September 2013.
4. At the behest of the workman reference relating to his dismissal and reinstatement was made by the appropriate Government to Labour Court, Mumbai, which was numbered as Reference (IDA) No.144 of 2015.
5. After hearing both the sides, Labour Court passed order on preliminary issues on 30 January 2019 holding that the enquiry conducted against the workman was fair and proper and in accordance with the principles of natural justice. The Labour Court also held that the findings of the Enquiry Officer are not perverse. The Labour Court thereafter proceeded to deliver final Award dated 8 January 2020 holding that the penalty of dismissal from service was disproportionate to the proved misconduct and set aside the dismissal order directing it to be replaced by the punishment of withholding of two increments to be imposed with effect from 10 September 2013. The Labour Court has further directed the employer reinstate the workman alongwith 50% backwages, continuity of service and other consequential benefits.
6. I have heard Ms. Chowdhary, the learned counsel appearing for the workman who has challenged the Award to the limited extent of denial of 50% backwages and imposition of penalty as withholding of two increments. According to Ms. Chowdhary, even though the charge of giving threat to a temporary employee is assumed to be proved, the workman ought not to have been punished even with the penalty of withholding of two increments. That it has come in evidence that the threat was not implemented by the workman. That there is nothing on record to indicate that the workman was capable of implementing the threat. That the workman had rendered blotless service of 30 long years with the employer, which factor ought to have been taken into consideration by the Labour Court. Alternatively, Ms. Chowdhary would submit that even if the penalty of withholding of two increments is upheld, denial of 50% Backwages, in the facts and circumstances of the case, was totally unwarranted. Labour Court's conclusion that penalty of withholding of two increments was warranted in the present case means that the workman ought to have been continued in service by imposition of the said penalty of withholding of increments. Thus the workman was erroneously kept away from service and must be paid fully backwages. She would therefore pray for setting aside the Award to the extent of imposition of punishment of withholding of increments and in any case to the extent of denial of 50% backwages.
7. Ms. Chowdhary would also oppose Writ Petition No.7238 of 2023 filed by the employer submitting that the misconduct alleged against the workman is not of grave nature. That the past clean service record of the Respondent must be taken into consideration. That mere giving of threat cannot amount to serious misconduct. That therefore in the event of this Court not allowing the Writ Petition No.5284 of 2023, atleast Writ Petition No.7238 of 2023 must be dismissed.
8. Per contra, Mr. Vaidya, the learned Counsel appearing for the employer would oppose the Writ Petition No.5284 of 2023 filed by the workman. Additionally in support of his Writ Petition No.7238 of 2023, Mr. Vaidya would submit that the Labour Court has erred in setting aside the penalty of dismissal imposed on the workman. That threatening of fellow employee is a serious and major misconduct. That the workman created an atmosphere of fear amongst the fellow workmen. That giving threat itself is a grave misconduct. That non-execution of the threat or incapability to execute the threat are irrelevant factors. That the workman was also Secretary on the Union and giving threats by misusing the said position creates maximum possible impact on temporary workman. That therefore the penalty cannot be said to be shockingly disproportionate to the proved misconduct. That the jurisdiction of the Labour Court in interfering in the quantum of penalty is extremely narrow. That since the penalty is not shockingly disproportionate, the Labour Court ought not to have been interfered in the same. In support of his contentions Mr. Vaidya would rely upon the following four judgments:
i) B C Chaturvedi vs. Union of India & Ors., MANU/SC/0118/1996 : (1995) 6 SCC 749;
ii) Damoh Panna Sagar Rural Regional Bank & Ors. Vs. Munna Lal Jain, (MANU/SC/1081/2004 : 2005 10 SCC 84;
iii) Regional Manager U.P. SRTC, Etawah & Ors. Vs. Hotilal & Anr. MANU/SC/0102/2003 : (2003) 3 SCC 605;
iv) Kerala Solvent Extractions Ltd. vs. A. Unnikrishnan & Anr. MANU/SC/0885/1993 : (2006) 13 SCC 619.
9. Rival contentions of the parties now fall for my consideration.
10. 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. Even during the course of hearing of the present Petitions, Ms. Chowdhary has fairly not disputed the correctness of finding of proof of charge for giving threat. Thus, 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.
11. The Labour Court has proceeded to interfere in the quantum of penalty by holding same to be disproportionate and has directed the same to be substituted by penalty of withholding of two increments. Before proceeding further, it would be necessary to examine the scope of jurisdiction of Courts to interfere in the quantum of punishment. 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. What is required is shocking the conscience of the Court on account of the imposed penalty. It would be necessary to refer to some of the decisions of the Apex Court in this regard.
12. In B C Chaturvedi (supra) the Apex Court has held in paragraphs 12 and 19 as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to censure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
19. The Tribunal in this case held that the appellant had put in 30 years of service. He had a brilliant academic record. He was successful in the competitive examination and was selected as a Class I Officer. He earned promotion after the disciplinary proceeding was initiated. It would be difficult to get a new job or to take a new profession after 50 years and he is "no longer fit to continue in government service". Accordingly, it substituted the punishment of dismissal from service to one of compulsory retirement imposed by the disciplinary authority. We find that the reasoning is wholly unsupportable. The reasons are not relevant nor germane to modify the punishment. In view of the gravity of the misconduct, namely, the appellant having been found to be in possession of assets disproportionate to the known sources of his income, the interference with the imposition of punishment was wholly unwarranted. We find no merit in the main appeal which is accordingly dismissed with no order as to costs."
13. In Damoh Panna Sagar Rural Regional Bank (supra) the Apex Court has held in paragraphs 14 to 16 as under:
"14. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case Ranjit Thakur vs. Union of India, MANU/SC/0691/1987 : (1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113 the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
15. To put differently unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court/ tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed.
16. In the case at hand, the High Court did not record any reason as to how and why it found the punishment shockingly disproportionate. Even there is no discussion on this aspect."
14. In Regional Manager U.P. SRTC, Etawah (supra) the Apex Court has held in paragraph 10 as under:
"10. It needs to be emphasized that the court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taken to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. [See Alexander Machinery (Dudley) Ltd. v. Crabtree, 1974 ICR 120 (NIRC)] A mere statement that it is disproportionate would not suffice. A party appearing before a court, as to what it is that the court is addressing its mind. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal."
15. In Kerala Solvent Extractions Ltd. (supra) the Apex Court held that compassion cannot be shown at the expense of legitimacy of process. The Court held in paragraphs 10 and 11 as under:
"10. We are inclined to agree with these submissions. In recent times, there is an increasing evidence of this, perhaps well meant but wholly unsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability.
11. In this case, we have no hesitation to hold that both the Labour Court and the High Court have erred. We allow the appeal, set aside the orders of the Labour Court and of the High Court in the writ petition, and dismiss the dispute raised by the respondent before the Labour Court."
16. Having considered the exposition of law by the Apex Court in the above judgments about restrictive scope of judicial review in the area of proportionality of punishment, I proceed to examine whether the finding recorded by the Labour Court in the present case about disproportionality can be sustained. The Labour Court has recorded following findings for holding punishment to the shockingly disproportionate. The Labour Court held in paragraphs 14 to 21 as under:
"14. Witness of first party company deposed in his evidence that, second party was really capable of doing the things, what he threatened to do on 02.11.2012. During cross-examination he admitted that, it is his opinion. Alleged threat was given on 02.11.2012, but till issuance of charge-sheet, alleged threat was not executed. Except opinion in oral evidence of witness of First Party Company no material is brought on record or mentioned in dismissal order what was the reason to draw conclusion that second party was really capable of doing the things what he has threatened.
15. To decide the proportionality of punishment, it is necessary to see what is the misconduct proved against second party workman. Second party workman was charge-sheeted for the act of threatening temporary workman viz. Mr. Krishna Gumala. On 02.11.2012 at about 5.30 p.m. when second party saw temporary Booking Clerk Mr. Krishna Gumala, then he said to him "he is kicking on the stomach of union members" (Apna member logon ke pet ke upar lath mar raha hai). It is also alleged that, second party threatened him that, in his own interest he should not report for duty from the next day onwards and in-spite of this message if it continues to report he will beat him outside the theater.
16. This is the only incident of misconduct alleged against second party workman. Till issuance of charge-sheet though Mr. Krishna Gumala continued to report for work, no further act was done by second party workman. There is no material in support of the contention of first party company that, second party was capable to execute the threat. Second party being the Union Secretary might have spoken to temporary Booking Clerk appointed in place of suspended Booking Clerks, who were members of his union. The words used by second party to the temporary Booking Clerks are harsh and temporary worker might have afraid of him at the time of incident. It is also not the case of management that after said threat Mr. Gumala has not reported for work. It shows that, said threat has not affected the work of theater and except this single incident nothing was happened later on for four days.
17. It is not the case of first party company that, due to said threat, there was any nuisance created on the premises of employment. It is also not the case of first party company that, due to this incident, activity of booking counter was affected in any manner. In dismissal order, it is mentioned that, punishment is imposed by the management considering past service record of second party workman. On perusal of dismissal order, it revealed that, except vague statement there is nothing on record to show that, past service record of second party workman was not satisfactory.
18. It is true that under Model standing order lesser punishment than dismissal is suspension for four days. Second party workman was already under suspension. After enquiry it is found that he is guilty of misconduct. What is misconduct committed is stated above. Second party was working was active union leader. No charge- sheet, notice or warning was given to him in last 30 years of service No doubt that merely because past service record of any workman was clean does not authorise him to commit misconduct. Clean and unblemished past services record can certainly be relevant factor to decide quantum of punishment.
19. Therefore, the punishment of dismissal imposed by first party company for a single act of misconduct is shockingly disproportionate. Under section 11 of I.D. Act, Labour Court can set- aside the punishment or can award lesser punishment in lieu of discharge or dismissal as a circumstance of the case may require.
20. The punishment of dismissal is shockingly disproportionate, As per Model Standing Orders the lesser punishment is four days suspension. Considering the misconduct proved against him, same cannot be also proper punishment. Hon'ble Supreme Court in the matter of Rama Kant Misra..Vs.. The State of Uttar Pradesh reported in MANU/SC/0194/1982 : AIR 1982 SC 1552 held that, Abusive language may show lack of culture but merely the use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct cannot permit an extreme penalty of dismissal from service. Hon'ble Supreme Court ordered reinstatement with all the benefits, including the back wages, but his two increments of workman falling due from the date of his termination of service were ordered to be withheld with future effect.
21. During cross-examination of second party, it is come on record that, age of retirement at first party company is 60 years. His date of birth is 08.02.1960. If the date of superannuation of second party workman is taken into consideration, then it is necessary to consider that, before this award becomes enforceable u/s. 17 of L.D. Act, second party would attain the age of superannuation. Therefore, I am of the opinion that, withholding of two increments following due on 14.09.2013 permanently can be a proper punishment to second party workman for said misconduct."
17. In the present case, the workman faced the charge of threatening a temporary co-worker. By doing so the workman admittedly caused obstruction to the fellow workmen. The threats were aimed at preventing him from discharging duties. The charge has been held to be proved. The Apex Court in M/s. Bengal Bhatdee Coal Company vs. Shri Ram Prabesh Singh & Ors., MANU/SC/0136/1963 : AIR 1964 SC 486 has held that obstructing workmen who were willing to work is a serious misconduct. Apex Court held in para 6 as under:
"6. Now there is no doubt that though in a case of proved misconduct, normally the imposition of a penalty may be within the discretion of the management there may be cases where the punishment of dismissal for the misconduct proved may be so unconscionable or so grossly out of proportion to the nature of offence that the tribunal may be able to draw an inference of victimisation merely from the punishment inflicted. But we are of opinion that the present is not such a case and no inference of victimisation can be made merely from the fact that punishment of dismissal was imposed in this case and not either fine or suspension. It is not in dispute that a strike was going on during those days when the misconduct was committed. It was the case of the appellant that the strike was unjustified and illegal and it appears that the Regional Labour Commissioner Central, Dhanbad, agreed with this view of the appellant. It was during such a strike that the misconduct in question took place and the misconduct was that these thirteen workmen physically obstructed other women who were willing to work from doing their work by sitting down between the tramlines. This was in our opinion serious misconduct on the part of the thirteen workmen and if it is found as it has been found proved punishment, dismissal would be perfectly justified. It cannot therefore be said looking the nature of the offence that the punishment inflicted in this case was grossly out of proportion or was unconscionable, and the tribunal was not justified in coming to the conclusion that this was a case of victimisation because the appellant decided to dismiss these workmen and was not prepared to let them off with fine or suspension.
(emphasis and underlining supplied)
18. I had an occasion to decide similar issue of proportionality of penalty of dismissal in respect of charge of threatening trainees and contract employees in Wheels India Limited vs. Ganesh Bajirao Vishwasrao, Writ Petition No.992 of 2022, decided on 22 December 2023. After considering the judgment of the Apex Court in Bengal Bhatdee Coal Company (supra), this Court held in paragraph 20 as under:
"20. So far as Writ Petition No.992 of 2022 challenging final Award is concerned, the Industrial Tribunal has proceeded to set aside the punishment of dismissal by holding the same to be disproportionate to the misconduct proved. In the chargesheet, Respondent-workman faced the charge of threatening the trainees and contract employees resulting in obstruction from attending the work from 9 March 2011. It was also alleged in the chargesheet that the said act resulted in production loss for the management. The charge leveled against the workman has been proved in the enquiry. In my view, the misconduct of threatening other employees with a view to ensure non-performance of work by them cannot be considered as a minor or insignificant misconduct. In my view, threatening or intimidating other employees itself is a gross misconduct. If such threats or intimidation is aimed at ensuring their absence from duties the gravity of misconduct gets multiplied. In this connection, reliance by Mr. Joshi on the Judgment of the Apex Court in Bengal Bhaatdi Coal Ltd (supra) appears to be apposite. The Constitution Bench has held in para 6 as under:
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19. In my view therefore, the charge of threatening a temporary Booking Clerk which is proved against the workman cannot be branded as a minor misconduct. The Labour Court has erred in going into the aspect of capability or ability of the workman to execute the threat. The said issue is wholly irrelevant. Whether the workman executed the threat or not is again a totally irrelevant aspect. The Labour Court has unnecessarily gone into the issue of activities of booking counter not being adversely affected on account of threats given by the workman.
20. In my view therefore, 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 MANU/SC/2105/2007 : (2007) 12 SCC 4, 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.
21. The workman has attained the age of superannuation in the month of February 2020, since his date of birth is 8 February 1960. The Award passed by the Labour Court makes the employer liable to reinstate the workman in service. By the time the Award was passed on 8 January 2020 the workman was on the verge of his retirement. However the employer has been saddled the liability to pay 50% backwages from 11 September 2013 till 8 February 2020. In my view, 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, I am inclined to grant lumpsum compensation in lieu of reinstatement and backwages. It appears that the last drawn wages of the workman at the time of termination of his services were in the range of Rs.13,186/-. It appears that he is already paid the amounts towards Provident Fund and Gratuity. If not paid, the workman is free to claim the same. Therefore, lumpsum of compensation of Rs. 5,00,000 would be appropriate in the facts and circumstances of the present case.
22. I accordingly proceed to pass the following order:
ORDER
i) Award dated 8 January 2020 passed by the Labour Court, Mumbai is modified to the extent that the Employer- M/s. Globe Theaters Private Limited shall pay to the workman-Joseph Barretto a lumpsum compensation of Rs. 5,00,000 in lieu of reinstatement and backwages. Such amount be paid within a period of eight weeks from today.
ii) Beyond the lumpsum compensation so awarded, the workman shall not be entitled to any further amounts from the Employer.
23. Writ Petition No.5284 of 2023 filed by the Workman is dismissed and Writ Petition No.7238 of 2023 filed by the Employer is partly allowed.
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