Maharashtra State Road Transport ... vs Vijay Gangadhar Gattewar And Anr.
2002 Latest Caselaw 960 Bom

JUDGMENT

S.A. Bobde, J.

1. Rule returnable forthwith. Heard by consent.

2. This petition is directed against the order dated 12-11-1998, passed by the learned Member of the Industrial Court, whereby the Industrial Court has remanded the matter to the First Labour Court, Nagpur for the purposes of proving the earlier past record of the respondent No. 1/employee, as relevant to determine the quantum of punishment imposed against the employee.

3. The respondent No. 1/employee appears to have dismissed from service of the petitioner-Corporation on the ground of selling re-issued tickets. There is no dispute that this is a major misconduct on the part of the respondent No. 1/employee. The Labour Court upheld the findings of the Enquiry Officer. In revision, preferred by the respondent/employee, the Industrial Court has entirely confirmed the order of the Labour Court and held that the findings arrived at by the Labour Court are well reasoned and there is no perversity at all in arriving at the finding as to the proof of misconduct committed by the respondent/employee. The Industrial Court, therefore, has observed that there is no reason to disturb the findings of the Labour Court, which is purely based on fact. The learned Industrial Court, has, however, held it necessary that there should be an enquiry. It, however, appears that the respondent/employee has argued the question of his proportionality of his punishment. While considering the argument, the learned Industrial Court has held that the only situation, under which, the Labour Court could have interfered with the punishment inflicted against the respondent/employee, was one contemplated under Schedule IV, Item 1(g), which reads thus:

"To discharge or dismiss employees:

(a) ..........................

(b) ..........................

(c) ...........................

(d) ............................

(e) ............................

(f) .............................

(g) for misconduct of a minor or technical character without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment."

4. The Industrial Court, therefore, took the view that the Labour Court erred in totally disregarding the past service record of the respondent-employee by over emphasizing the length of service of the respondent-employee.

5. Mr. Dharmadhikari, learned Counsel for the petitioner-Corporation submitted, and in my view rightly, that this was not a case where the Industrial was entitled to remand the matter back to the Labour Court for considering the past service record of the employee under Item 1(g) of Schedule IV of the Act.

6. From plain reading of Item 1(g) of Schedule IV, it is clear that it provides a remedy against discharge dismissal of the employees for misconduct of a minor or technical character without having any regard to inter alia the past record of service of the employee. The Item as aforesaid itself suggests that this would amount to shockingly disproportionate punishment. It is clear that Item 1(g) of Schedule IV is intended to prohibit from discharging or dismissing the employees for misconduct of a minor or technical character, without any regard to the past service record of the employee. Therefore, where the discharge or a dismissal is not for commission of misconduct of a minor or technical character, it must follow that the past service record of the employee would not be relevant. Indeed, the reason for this is clear that is to say the employer would be entitled to discharge or dismiss the employee for misconduct of a grave character/nature, i.e. not of a minor or technical character, without reference to the past service record of the employee.

7. This question is no more res integra in view of the decision of the Supreme Court in the case of Colour Chem Ltd. v. A.L. Alaspurkar, reported in 1998(3) Bom.C.R. (S.C.)644 : 1998(I) C.L.R. 638, where Their Lordships have made following observations:

"11. ......A conjoint reading of different sub-parts of the aforesaid provision, in our view, leaves no room for doubt that it deals with an unfair labour practice said to have been committed by an employer who discharges or dismisses an employee for misconduct of a minor or technical character and while doing so no regard is kept in the nature of the misconduct alleged and proved against the delinquent or without having regard to the past service record of the employee so that under these circumstances the ultimate punishment imposed on the delinquent would be found by the Court to be a shockingly disproportionate punishment. It is not possible to agree with the contention of learned Senior Counsel for the respondent-workmen that the said clause would also cover even major misconducts if for such misconducts the orders of discharge or dismissal are passed by the employer without having regard to the nature of the particular misconduct or the past record of the employees and if under these circumstances, it is found by the Court that the punishment imposed is shockingly disproportionate one. It is true that after the words for misconduct of a minor or technical character there is found a comma in Clause (g) but if the contention of learned Senior Counsel is to be accepted the comma will have to be replaced by 'or'. That cannot be done in the context and settings of the said clause as the said exercise apart from being impermissible would not make a harmonious reading of the provision. Even that apart, in the said Clause (g) the legislature has used the word 'or' while dealing with the topic of non-consideration by the employer while imposing the punishment the relevant factors to be considered, namely, either the non-consideration of the nature of the particular misconduct or the past record of service of the employee, which would make the punishment appear to be shockingly disproportionate to the charge of misconduct held proved against the delinquent. Thus, the term 'or' as employed by the legislature in the said clause refers to the same topic, namely, non-consideration of relevant aspects by the employer while imposing the punishment. Consequently, it cannot be said to have any reference to the nature of misconduct, whether minor or major. It must, therefore, be held that the comma as found in the clause after providing for the nature of the misconduct only indicates how the same nature of the misconduct referred to in the first part of the clause results in a shockingly disproportionate punishment if certain relevant factors, as mentioned in the subsequent part of the clause, are not considered by the employer. If the contention of learned Senior Counsel for the respondents was right all the sub-parts of Clause (g) have to be read disjunctively. That would result in a very anomalous situation. In such an eventuality the discharge or dismissal of an employee in case of a major misconduct without regard to the nature of the particular misconduct or past record of service may by itself amount to shockingly disproportionate punishment. Consequently for a proved major misconduct, if past service record is not seen the punishment of discharge or dismissal by itself may amount to a shockingly disproportionate punishment. Such an incongruous result is not contemplated by Clause (g) of Item 1 of Schedule IV of the Act. Such type of truncated operation of the said provision is contraindicated by the very texture and settings of the said clause. Once the said clause deals with the topic of misconduct of a minor or technical character it is difficult to appreciate how the said clause can be construed as covering also major misconducts for which there is not even a whisper in the said clause. On a harmonious construction of the said clause with all its sub-parts, therefore, it must be held that the legislature contemplated while enacting the said clause punishment of discharge or dismissal for misconduct of minor or technical character which when seen in the light of the nature of the particular minor or technical misconduct or the past record of the employee, would amount to inflicting of shockingly disproportionate punishment. In this connection we may mention that the same learned Judge B.N. Srikrishna, J., in a latter decision in the case of Pandurang Kashinath Wani v. Divisional Controller, M.S.R.T.C., Dhule & others, 1995(I) C.L.R. 1052, has taken the view that Clause (g) of Item 1 of Schedule IV of the Act refer to minor or technical misconducts only. The same view was also taken by another learned Judge Jahagirdar, J., in the case of Maharashtra State Road Transport Corporation v. Niranjan Sridhar Gade and another, . So far as this Court is concerned the same Act came for consideration in the case of Hindustan Lever Ltd. v. Ashok Vishnu Kate and others, 1995(II) C.L.R. 823. It is of course true that the question with which this Court was concerned was a different one, namely, whether before any final discharge or dismissal order is passed, a complaint could be filed under the Act on the ground that the employer was contemplating to commit such unfair labour practice, if ultimately the departmental proceeding were likely to result into final orders of dismissal or discharge attracting any of the Clauses of Item 1 of Schedule IV of the Act. However, while considering the scheme of the Act especially the very same Item 1 of Schedule IV of the Act, a Bench of this Court consisting of G.N. Ray, J., and one of us S.B. Majmudar, J., in paragraph 26 of the report assumed that the said clause would cover minor misconduct."

8. In this view of the matter, the Industrial Court has committed a serious error of jurisdiction in remanding the matter to the Labour Court for considering the past service record of the respondent/employee on the ground of Item 1(g) of Schedule IV of the Act. The impugned order of the Industrial Court, is therefore, set aside the Industrial Court shall consider the question of proportionality of the punishment inflicted against the respondent-employee on the basis of record before it.

9. The petition stands disposed of accordingly.