Bombay High Court
M/S. Empire Dyeing vs Vasudev S. Kusam & Ors on 10 October, 2017
Bench: R.D. Dhanuka
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.730 OF 2004
M/s.Empire Dyeing )
414, Senapati Bapat Marg, )
Lower Parel, Mumbai - 400 013.) ...Petitioner
....Versus....
1). Mr.Sandesh Vasudeo Kusam )
Aged 26 years, Son of late )
Vasudev Shivram Kusam )
residing at 711, 7th Floor )
Shree Siddhi Sagar CHS, )
Worli Village, Mumbai - 400 030 )
)
2). Rajaram Ramchandra Rode, )
Tawade Chawl, Room No.9,)
Gamdevi Lane, Ghatkoper (W) )
Mumbai - 400 086. )
)
3). Presiding Officer, )
Labour Court, )
Bandra-Kurla Complex, Mumbai )
)
4). Member, Industrial Court, )
Bandra-Kurla Complex, Mumbai ) ...Respondents
Mr.K.M. Naik, Senior Counsel with Mr.S.P. Salkar, Mr.Hemant Tekay
and Ms.Janki Kadam for the Petitioner.
Ms.Shobana Gopal for the Respondent Nos.1 and 2.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 27TH JULY, 2017
PRONOUNCED ON : 10th OCTOBER, 2017
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JUDGMENT :-
1. By this petition filed under Article 226 of the Constitution
of India, the petitioner seeks writ of certiorari or any other appropriate
writ, order or direction in the nature of writ of certiorari and has
impugned the common judgment dated 2nd February, 2002 passed in
the Application (BIR) Nos.81 of 1995 and 82 of 1995 by the Labour
Court and also has impugned the judgment and order dated 9th
February, 2004 passed by the learned Industrial Court in Appeal (IC)
50 of 2002, allowing the applications filed by the predecessor of the
respondent no.1 and the application of the respondent no.2
(hereinafter referred as the said employees) and dismissing the
appeal filed by the petitioner by the Labour Court and the Industrial
Court respectively. Some of the relevant facts for the purpose of
deciding this petition are as under :
2. The original respondent no.1 had joined the employment of
the petitioner on 5th December, 1964. The respondent no.2 had joined
the employment of the petitioner some time in the year 1973.
3. It is the case of the petitioner that on 10th March, 1993, the
security officer and the supervisor while taking a round in the factory
premises of the petitioner observed that the said employees were
consuming hard liquor in the loft of Cotton Finishing Department near
the Famatax No.1. The security officer took charge of one bottle of
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DSP whisky as also two glasses containing whisky which was being
consumed by them and handed over the same to the supervisor
Mr.Indersen Singh. The said employees also arrogantly replied when
they were directed to come down from the loft of Cotton Finishing
Department. By a letter dated 10th March, 1993 issued by the
petitioner, the said employees were suspended pending enquiry. The
said employees were thereafter issued charge-sheets both dated 13 th
March, 1993. The following charges were levelled :
a). Drinking hard liquor during working hours
inside the factory of Empire Dyeing ;
b). Riotous, disorderly and indecent behaviour
during working hours on the premises of Empire
Dyeing ;
c). Threatening Security staff of Empire Dyeing
without any provocation ;
d). Commission of any acts subversive of
discipline or good behaviour on the premises of the
Empire Dying.
4. The petitioner thereafter appointed an Enquiry Officer. The
said employees were represented at the enquiry by the Vice
President of Maharashtra General Kamgar Union. The enquiry was
concluded on 19th April, 1995. The Enquiry Officer submitted his
report and the findings dated 13th May, 1995 holding that the said
employees were guilty of charges levelled against them in the
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charge-sheets.
5. It is the case of the petitioner that considering the
seriousness of the charges proved against the said employees at the
enquiry, the petitioner decided to dismiss them from service of the
petitioner. However, while deciding the punishment to be imposed,
the petitioner also considered their past service record and it was
found that there were no aggravating circumstances against the said
employees. The petitioner therefore with a view to give the benefits of
one month's notice pay to those employees, decided to use the
terminology "discharge" rather than dismissal without notice.
6. The petitioner accordingly issued a letter dated 30th May,
1995 recording charges alleged in the charge-sheets, the enquiry
report holding them guilty of the charges contained in the charge-
sheets and informing that the petitioner had concurred with the
findings of the Enquiry Officer. It was mentioned that taking into
consideration the seriousness of the misconduct committed by those
employees, the petitioner had been justified in dismissing them from
the employment of the company. The petitioner however, had also
looked into their past records to find any extenuating circumstances
and found none. The petitioner informed that taking into consideration
the length of service, the petitioner had decided to take a lenient view
in the matter and decided to discharge them from the employment of
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the company with effect from the closing hours on 31st May, 1995. It
was further stated in the said letters that apart from the legal dues,
the petitioner had also decided to pay those employees one month's
notice pay in lieu of notice.
7. Being aggrieved by the said order dated 30th May, 1995,
those employees filed the Applications bearing Nos.81 of 1995 and
82 of 1995 under the provisions of section 42(4), 78 and 79 of the
Bombay Industrial Relations Act, 1946 before the Labour Court at
Bombay, inter-alia praying for a declaration that the enquiry
conducted by the petitioner was not legal, fair and proper, for setting
aside the findings rendered by the Enquiry Officer, for reinstatement
with full back wages and continuity of service with effect from 31 st
May, 1995 with interest and for various other reliefs. Both the
applications were resisted by the petitioner by filing written statement
before the Labour Court at Bombay.
8. By a common judgment dated 2nd February, 2002
delivered by the 5th Labour Court, Mumbai, the Applications (BIR)
Nos.81 of 1995 and 82 of 1995 filed by the said employees came to
be allowed. The petitioner was directed to reinstate them in service
with continuity of service and full back wages. It was however, made
it clear that whatever relief was granted by the Labour Court to the
said employees must be read subject to the closure and outcome
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thereof.
9. It is the case of the petitioner that on 10 th March, 2000, the
factory of the petitioner was declared as closed. Fifty six employees,
including the said employees filed Complaint (ULP) No.232 of 2000
under Item 9(4) of The Maharashtra Recognition Of Trade Unions
And Prevention Of Unfair Labour Practices Act, 1971 (For short
"MRTU & PULP Act") in the Industrial Court, Maharashtra, Mumbai
against the petitioner herein and others challenging the closure. By
an order dated 4th March, 2002, the Industrial Court, Mumbai
dismissed the said complaint holding that the complainants had failed
to prove unfair labour practice under Item 9 of Schedule IV of the said
MRTU & PULP Act. It was held that there were less than 100
employees in the employment of the petitioner and thus no
permission was required under section 25(O) of the Industrial
Disputes Act, 1947 at the relevant time i.e. before 10th March, 2000. It
is held that those employees will have to approach the proper
authority under the Bombay Industrial Relations Act, 1946.
10. Being aggrieved by the said order dated 4th March, 2000,
passed by the Industrial Court, Mumbai, dismissing the said
complaint filed by 56 employees including the said employees, the
complainants thereto filed a Writ Petition (2894 of 2002) in this Court.
By an order dated 22nd and 23rd September, 2008 passed by the
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learned single Judge, it was held that since the petitioner herein had
denied the relationship of employer and employee with the workmen,
the said issue could not have been decided by the Industrial Court
and thus the Industrial Court has rightly dismissed the complaint filed
by the employees.
11. The Division Bench of this Court passed an order on 11th
December, 2009 in Appeal (Lodging) No.330 of 2009 filed by those
employees against the order of the learned single Judge. The
Division Bench permitted the employees to raise their dispute by way
of demand before the Conciliation Officer within a period of two
weeks from the date of the said order. The Conciliation Officer was
directed to submit his failure report, if any, within a period of four
weeks thereafter. The appropriate Government was directed to take a
decision for referring dispute to the appropriate court as per the
provisions of the Industrial Disputes Act, 1947 within a period of two
weeks after receiving the failure report, if any, from the Conciliation
Officer. It was directed that in case the appropriate Government
refers the dispute to an appropriate Court, the appropriate Court after
receiving the reference from the Government may try to adjudicate
the dispute preferably within six months but in any case within a
period of one year from the date of receipt of the reference. The
Division Bench of this Court disposed of the said appeal.
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12. Pursuant to the said order dated 11th December, 2009, on
14th September, 2010 / 20th September, 2010, the Additional Labour
Commissioner referred the dispute for adjudication of the Industrial
Court Tribunal by exercising powers under section 12(5) of the
Industrial Disputes Act, 1947 for a decision on striking down and
setting aside the notice dated 5th January, 2000 and to declare the
closure with effect from 10th March, 2000 as illegal and unjustified and
to reinstate all the workmen with continuity of service and full back
wages. The said reference is still pending.
13. On 30th January, 2003, the Industrial Court, Maharashtra,
Mumbai partly allowed the Complaint (ULP) Nos.915 of 1988 of 1384
of 1988 filed by the Maharashtra General Kamgar Union against the
petitioner herein alleging unfair labour practice within the meaning of
Item 9 of Schedule IV of MRTU & PULP Act, 1971. The Industrial
Court declared that the petitioner herein had committed unfair labour
practice within the meaning of Item 9 of Schedule IV of the MRTU &
PULP Act, 1071 and directed the petitioner to desist from continuing
to follow unfair labour practice and directed to pay the wages to the
complainants for a period between December, 1988 and December,
1989. It was made clear that the amount already disbursed by way of
wages by the petitioner amongst those employees shall be adjusted
towards those dues. The Industrial Court did not grant wages for the
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larger period claimed by the employees. It is the case of the petitioner
herein that it had made payment to the employees for the said period
between December, 1988 and December, 1989 and nothing more
was payable.
14. In the meanwhile the petitioner filed an Appeal under
section 84 read with section 85 of the Bombay Industrial Relations
Act, 1946 i.e. Appeal (IC) No.50 of 2002 impugning the judgment
and order dated 2nd February, 2002 passed by the 5th Labour Court,
Mumbai. It is the case of the petitioner that before the Industrial
Court, the petitioner brought to the notice of the Industrial Court that
the petitioner had declared closure of their factory with effect from 10th
March, 2000 and subsequent development in respect of the said
declaration of closure of their factory by the petitioner.
15. By an order and judgment dated 9th February, 2004, the
Industrial Court at Mumbai dismissed the said Appeal (IC) No.50 of
2002 filed by the petitioner. Being aggrieved by the said judgment
dated 9th February, 2004 and also the judgment dated 2nd February,
2002 passed by the Labour Court, the petitioner filed this writ petition,
impugning those judgments under Article 226 of the Constitution of
India.
16. Mr.Naik, learned senior counsel appearing for the
petitioner invited my attention to various orders passed by the Labour
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Court and the Industrial Court, including the impugned orders. He
also invited my attention to the charge-sheets dated 13 th March, 1993
issued by the petitioner against the said employees and also the
order dated 30th May, 1995 addressed to those employees placing on
record that in the enquiry conducted by the Enquiry Officer, the said
employees were found guilty of charges contained in the charge-
sheets dated 13th March, 1993. It is submitted by the learned senior
counsel that though the said employees were held guilty of
misconduct and various charges were proved against them, though
the petitioner could have dismissed the said employees from the
employment of the petitioner, the petitioner took a lenient view by
looking into the past records of the said employees to find out any
extenuating circumstances and having found none of such
circumstances, after taking into consideration the length of service,
the petitioner decided to discharge the said employees from the
employment of the petitioner instead of dismissing them from the
service. The petitioner also offered the legal dues and also one
month's notice pay in lieu of notice.
17. Learned senior counsel placed reliance on the judgment of
the Supreme Court in case of Dr.Dattatraya Mahadev Nadkarni vs.
The Municipal Corporation of Greater Bombay, (1992) 1 CLR 391
and submits that the Supreme Court had adverted to its earlier
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judgment in case of Shyamlal vs. State of Uttar Pradesh, AIR 1954
SC 391 in which it was held that under the Constitution of India
removal and dismissal shall stand on the same footing except as to
future employment. It was held that removal is nothing but a species
of dismissal. Removal, like dismissal, no doubt brings about a
termination of service but every termination of service does not
amount to dismissal or removal.
18. It is submitted that the Supreme Court in the said judgment
has also adverted to its earlier judgment in case of S.R. Tewari vs.
District Board, Agra (1964) 3 SCR 55 holding that form of the order
under which the employment of a servant is determined is not
conclusive of the true nature of the order. The form may be merely to
camouflage an order of dismissal for misconduct and it is always
open to the Court before which the order is challenged to go behind
the form and ascertain the true character of order. It is held that if the
Court holds that the order, though in the form merely of determination
of the employment, is in reality a cloak for an order of dismissal as a
matter of punishment, the Court would not be debarred merely
because of the form of the order in giving effect to the rights
conferred by statutory rules upon the employees.
19. The Supreme Court in the said judgment in case of
Dr.Dattatraya Mahadev Nadkarni (supra) held that the impugned
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order of punishment was an order of dismissal of service though the
order may have used the term of removal from service. Learned
senior counsel submits that this judgment of the Supreme Court was
not brought to the notice of the Supreme Court in case of State Bank
of India & Ors. vs. T.J. Paul, (1999) II CLR 8 (SC) which has been
adverted to and followed by the Labour Court as well as the Industrial
Court.
20. Learned senior counsel for the petitioner placed reliance
on the judgment of the Supreme Court in case of New Shorrock
Mills vs. Maheshbhai T. Rao, (1997) I CLR 13 (SC) and would
submit that in that judgment, the Supreme Court had set aside the
punishment awarded by the Labour Court and directed discharge of
an employee from service which punishment was lesser punishment
having been given by the management though the said employee
could have dismissed from service considering the fact that he was
found guilty of misconduct. He submits that this judgment of the
Supreme Court was also not brought to the notice of the Supreme
Court in case of State Bank of India & Ors. (supra)
21. Learned senior counsel for the petitioner submits that the
Labour Court though has allowed the applications filed by the
employees by an order and judgment dated 2nd February, 2002,
directing the petitioner to reinstate the said employees in service with
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continuity and full back wages, the Labour Court had given a finding
that the findings of the Enquiry Officer holding the employees guilty of
misconduct were not perverse. He submits that the said findings
rendered by the Labour Court were confirmed by the Industrial Court
in the order and judgment dated 9th February, 2004. The said
employees admittedly did not challenge the order and judgment
delivered by the Labour Court as well as the Industrial Court and thus
the findings of the Enquiry Officer holding the employees guilty of
misconduct having been upheld are binding on the said employees.
22. Learned senior counsel placed reliance on the judgment of
the Supreme Court in case of Gujarat Still Tubes Limited vs.
Gujarat Still Tubes Mazdoor Sabha, 1980 (40) FLR 152 and in
particular paragraphs 50 to 56, 60, 64 and 65 in support of his
submission that the form of an order is not conclusive and the
Tribunal can go behind the order to find out the reasons which led to
the order and then consider for itself whether the termination was
colourable exercise of the power or was a result of victimization or
unfair labour practice or not. He submits that the form of order is not
decisive as to whether the order is by way of punishment or not. He
submits that though the Enquiry Officer had found the said
employees as guilty of misconduct which had warranted their
dismissal from service, the petitioner had taken liberal view by
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considering the order under clause 24(6) of the Standing Orders and
had not only offered the legal dues to the said employees but also
one month's notice pay though the petitioner could have dismissed
those employees from service on account of misconduct proved
before the Enquiry Officer.
23. It is submitted by the learned senior counsel that merely
because the petitioner had granted lesser punishment to the
employees, the petitioner cannot be penalized or made to suffer for
granting lesser punishment, though larger punishment could be
awarded to the said employees. He submits that the law has to be
construed reasonably and not mechanically. He submits that the
judgment of the Supreme Court in case of Gujarat Still Tubes
Limited (supra) was also not brought to the notice of the Supreme
Court in case of State Bank of India & Ors. (supra).
24. It is submitted by the learned senior counsel that the Court
has to lift the veil and find out the punishment that could have been
awarded to the employees for committing misconduct. The Court has
to consider the reality and not form of order while scrutinizing the
complaint whether such penalty / punishment was in accordance with
the Standing Orders or not. He submits that merely because the
petitioner has granted lesser punishment, the same cannot be
declared as bad and illegal. In this case, the discharge of the said
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employees was preceded by a full fledge enquiry conducted after
complying with the principles of natural justice and law and the
Enquiry Officer had found the said employees as guilty of
misconduct. He submits that even in the impugned letter of
termination, the petitioner had categorically informed the said
employees that the Enquiry Officer had held them guilty of
misconduct and though their services were liable to be dismissed,
considering the past conduct and years of employment with the
petitioner, the petitioner had discharged those employees by offering
payment of legal dues and one month's notice pay. He submits that
the foundation of the order has to be considered.
25. Learned senior counsel invited my attention to the
Standing Orders 22 and 24 and would submit that though the
petitioner could have simplicitor terminated the services of the
employees by giving 14 days notice or of payment of 13 days wages,
including all allowance in lieu of notice, the petitioner had offered
legal dues and also 30 days notice pay. He submits that the act of
drunkenness, the indecent behaviour of the said employees and
other charges levelled against them at the factory premises of the
petitioner were proved before the Enquiry Officer. The punishment for
misconduct described in Standing Order 23 is provided in the
Standing Order 24. He submits that the procedure required to be
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followed before punishing an employee as prescribed in the said
clause was dully followed.
26. It is submitted that though the punishment by way of
discharge was not specifically included in Standing Order 24, the
term "discharge" being one of the species of dismissal, the petitioner
had a right to discharge the said employees by considering the
gravity of misconduct, previous record of the employees and
extenuating or aggravating circumstances that might exist by
awarding punishment under the Standing Orders. He submits that the
Labour Court as well as the Industrial Court thus could not have held
that the punishment of discharge awarded to the said employees was
outside the punishments enumerated in the Standing Orders and on
that ground could not have set aside the order of discharge of the
employees as bad and illegal.
27. Learned senior counsel gave an illustration before this
Court that if an employee is found guilty of an isolated act of
committing sexual harassment in the premises of the employer,
however considering his past conduct and his undertaking not to
commit such act in future, if an employer by invoking clause 24(6) of
the Standing Orders does not want to dismiss such an employee from
service and decides to award a lesser punishment, it cannot be said
that awarding lesser punishment would be in violation and outside the
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purview of the punishment provided under the Standing Orders. He
submits that the other punishments prescribed under Standing Order
24 are too small considering the nature of misconduct committed by
the said employees and would not have been in accordance with the
nature of misconduct committed by the said employees.
28. It is submitted that it was not the case of the said
employees that by awarding the lesser punishment to them by the
petitioner, the petitioner was benefited in any manner whatsoever.
He submits that in effect the order passed by the employer was for
dismissal but by way of lesser punishment after considering clause
24(6) of the Standing Orders, the employer passed an order of
discharge against the employees. He submits that even though the
petitioner had punished the employees by way of discharge from
service, the basic nature of misconduct committed by the employees
would not change. The employer may consider reformation of the
employees and may take a liberal view so that such employee can
join another employment in future. Such a good gesture shown by the
employer cannot be considered as bad and illegal. He submits that
there is no provision in the Standing Orders that the employer cannot
be liberal while granting the punishment. He submits that the
petitioner had balanced equity by awarding lesser punishment to the
said employees.
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29. Learned senior counsel placed reliance on the Division
Bench judgment of this Court in case of Vasant Gopal Gurav & Anr.
vs. P.M. Lyla & Ors. (1968) II LLJ 182 and in particular relevant
paragraphs at page 184 and would submit that this Court after
holding that after considering the gravity of misconduct, the previous
record, if any, of the worker and any other extenuating or aggravating
circumstances that may exist, the employer would be fully justified in
making the orders of discharge on payment of thirteen days' wages
so that the workers may not earn a black-mark and may not be
hampered in their service at any other stage. It is held that there may
be a case which do not call for extreme punishment of dismissal and
unless there is anything which prevents the employer from imposing
a lesser punishment, there is no reason why the said Standing
Orders should be construed in this limited way. He submits that the
judgment of the Division Bench of this Court was not brought to the
notice of the Labour Court and the Industrial Court.
30. Learned senior counsel submits that since the earlier
judgments of the Supreme Court taking a different view was not cited
before the Supreme Court in case of State Bank of India & Ors.
(supra), the said judgment cannot be considered as binding
precedent under Article 141 of the Constitution of India. He submits
that both the Courts below have placed reliance on the judgment of
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the Supreme Court in case of State Bank of India & Ors. (supra)
which was not binding precedent in these circumstances stated
aforesaid, and thus the said judgment deserves to be set aside on
that ground alone.
31. Learned senior counsel placed reliance on the judgment of
the Supreme Court in case of N.S. Giri vs. Corporation of City of
Mangalore & Ors., 1999 (82) FLR 938 and in particular paragraph
12. Insofar as full back wages allowed by the Labour Court in favour
of the respondent no.1 is concerned, it is submitted by the learned
senior counsel that the factory of the petitioner was already closed
on 10th March, 2000.
32. By an order dated 4th March, 2000, the Industrial Court had
dismissed the complaint filed by the employees' union challenging the
closure and had rendered a finding that no permission under section
25(O) of the Industrial Disputes Act, 1947 was required by the
petitioner, as the employees were less than 100 in number. The
Industrial Court passed an order on 30th January, 2003 holding that
there was no workmen in the factory of the petitioner during the
period between 1988 till 2000. The said employees were also the
parties to the said complaint. The machineries of the petitioner were
sold at the behest of the employees' union. He submits that thus no
wages were payable to the said employees at all for the period
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December, 1988 to December, 1989. He submits that even if
something is payable to the said employees by the petitioner, they
can claim the back wages only from the date of the order of discharge
till the date of closure and not beyond the said period. He submits
that the petitioner had already paid 13 months wages to the said
employees prior to the order of the Industrial Court.
33. It is submitted that the original respondent no.1 would have
even otherwise retired in normal course in the year 2001 and the
original respondent no.2 would have retired in the year 2007. The
original respondent no.1 has already expired on 1st May, 2012. It is
submitted that the question of any reinstatement of the original
respondent no.1 or the original respondent no.2 did not arise. On the
issue as to whether the Labour Court could have awarded full back
wages or not is concerned, learned senior counsel for the petitioner
placed reliance on the judgment of the Supreme Court in case of
Surendra Kumar Verma etc. vs. The Central Government
Industrial Tribunal-cum-Labour Court, New Delhi & Anr. 1980
LAB.I.C. 1292 and in particular paragraph 6 thereof. He submits that
any order of full back wages would place most burden on the
petitioner in the aforesaid circumstances and thus no such back
wages could have been awarded by the Labour Court.
34. Mrs.Shobana Gopal, learned counsel appearing for the
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said employees on the other hand submits that the issue as to
whether the factory of the petitioner was closed in accordance with
law or not is sub-judice before appropriate Court. The order of the
Labour Court was made subject to the out come of the closure
proceedings. Learned counsel placed reliance on the objects and
reasons of the Industrial Employment (Standing Orders) Act, 1946.
She submits that admittedly the certified Standing Orders as settled
by the Commissioner of Labour under section 35(2) of the Bombay
Industrial Relations Act, 1946 was made applicable to the employees
working in the establishment of the petitioner.
35. It is submitted that the said provisions of the Standing
Orders are statutory in nature and were binding on the petitioner. She
submits that the conditions prescribed under the said Standing
Orders are sacrosanct and have to be fulfilled strictly by the parties.
Clause 24 of the Standing Orders does not enumerate any
punishment / penalty in the nature of discharge of an employee. The
punishment / penalty specifically prescribed in the Standing Orders
has to be followed strictly otherwise there would be utter confusion in
the mind of the parties. She submits that the punishment of discharge
inflicted by the petitioner was not enumerated as one of the
punishment under the Standing Order 24 at all. The petitioner thus
could not have inflicted such punishment of discharge upon the
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employees.
36. Learned counsel appearing for the said employees invited
my attention to the Standing Order 24 and would submit that various
punishments against the employees for committing misconduct are
already enumerated in the said Standing Order 24 and thus even if
her clients were proved to be guilty of misconduct, the petitioner
could have awarded only such punishment as specifically
enumerated in that Standing Order and not outside such Standing
Orders. She submits that the Court cannot lift veil of the punishment
awarded if such punishment was not one of the punishment
enumerated in the Standing Orders. No deviation from any of the
conditions prescribed in the Standing Orders is permissible. She
submits that both the Courts below have thus rightly declared the
decision of the petitioner discharging the employees as illegal on the
basis of the said punishment following outside the provisions of the
Standing Orders.
37. It is submitted by the learned counsel for the said
employees that in Schedule IV of MRTU & PULP Act, 1971, the term
"discharge" or "dismissal" both are provided, whereas in the Standing
Orders, the term "discharge" is not provided. None of the judgments
thus relied upon by the learned senior counsel for the petitioner
dealing with the provisions of Schedule IV of MRTU & PULP Act,
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1971 would be relevant for the purpose of deciding the issue and are
clearly distinguishable.
38. Learned counsel for the said employees distinguished the
judgment of the Supreme Court in case of Lokmat Newspapers Pvt.
Ltd. vs. Shankarprasad, 1999 II CLR 433 included in the
compilation filed by the petitioner on the ground that in the said
judgment, the Supreme Court had considered the term "discharge" or
"dismissal" under Schedule IV of the MRTU & PULP Act, 1971 and
not the provisions of the Standing Orders. She submits that the
provisions considered by the Supreme Court in the said judgments
were totally different and thus the said judgments would not assist the
case of the petitioner.
39. Learned counsel for the said employees distinguished the
judgment of the Supreme Court in case of New Shorrock Mills
(supra) on the ground that there was no issue before the Supreme
Court in that judgment that the punishment awarded by the employer
was outside the purview of the Standing Orders. She submits that
none of the provisions of the Standing Orders provide for lesser
punishment than the punishment specifically enumerated in the
Standing Order 24. She submits that the said judgment of the
Supreme Court in case of New Shorrock Mills (supra) thus is clearly
distinguishable in the facts and circumstances of this case and would
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not assist the case of the petitioner.
40. Learned counsel for the said employees placed reliance on
the judgment of the Supreme Court in case of State Bank of India &
Ors. (supra) which was referred to and relied upon by the two Courts
below and more particularly on paragraphs 10, 12, 18 and 20. It is
submitted that the facts before the Supreme Court in the said
judgment were identical to the facts of this case and was thus binding
on the two Courts below, the parties and also binding on this Court.
She submits that the said judgment of the Supreme Court is not per-
incuriam.
41. Learned counsel for the said employees placed reliance on
the judgment of this Court in case of Press Trust of India
Employees Union & Anr. vs. Press Trust of India Limited & Anr.
(2007) I CLR 173 and in particular paragraphs 9 to 11 and would
submit that in the said judgment delivered by this Court, Standing
Order 22 has been considered and it is specifically held that while
reducing the punishment , it is not open to the Disciplinary Authority
to impose the punishment which is not prescribed by the certified
Standing Orders. She submits that in the said judgment delivered by
the learned single Judge of this Court, the judgment of the Supreme
Court in case of State Bank of India & Ors. vs. T.J. Paul (supra)
which was adverted to and followed by the two Courts below has
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been referred to and followed by this Court. She submits that the
said judgment of this Court squarely applies to the facts of this case
and is binding on this Court.
42. Learned counsel for the said employees also placed
reliance on the judgment delivered by the single Judge of this Court
in case of Sadhna Textile Industries Pvt. Ltd. vs. Bulabchand
Gayadin & Ors., (1993) II CLR 512 and in particular paragraphs 10
and 12 and would submit that even the powers of the Court to decide
the propriety or legality of an order passed by the employer acting
under the Standing Orders are restricted. She submits that this
judgment delivered by the learned single Judge of this Court is
delivered interpreting Standing Order 22 squarely applies to the facts
of this case. She submits that according to the said judgment, even
the Courts are circumscribed by the provisions of the Standing
Orders and cannot confer any punishment beyond the punishments
enumerated in the Standing Orders.
43. Learned counsel for the said employees distinguished the
judgment of the Supreme Court in case of Dr.Dattatraya M.
Nadkarni (supra) on the ground that the facts before the Supreme
Court in the said judgment were totally different and are clearly
distinguishable.
44. Learned counsel for the said employees invited my
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attention to paragraph 8 of the order passed by the Labour Court
recording that the Labour Court would have considered the legality
and propriety of the order passed by the employer if the punishments
would have been inflicted as per the provisions of the Standing
Orders. She submits that since the Labour Court as well as the
Industrial Court took a view that since the punishment inflicted by the
petitioner was not enumerated in the Standing Orders and thus the
order of punishment was bad and illegal, none of the Courts below
considered the legality or propriety of the order passed by the
petitioner at all. She submits that if this Court comes to the conclusion
that the orders passed by the two Courts below deserves to be set
aside on the ground that the petitioner could have inflicted lesser
punishment of discharge upon the employees, since the two Courts
below have not decided the legality or propriety of the punishment
inflicted by the petitioner, the matter shall be remanded back to the
Labour Court for the purpose of deciding the legality or propriety of
the punishment inflicted by the petitioner and more particularly as to
whether the petitioner of discharge was proportionate to the nature of
misconduct committed by the said employees or not.
45. Mr.Naik, learned senior counsel in rejoinder reiterates his
submission that none of the judgments cited by the petitioner which
were delivered by the Supreme Court prior to the date of the
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judgment of the Supreme Court in case of State Bank of India &
Ors. (supra) were brought to the notice of the Supreme Court taking
a different view and thus the said judgment of the Supreme Court is
per-incuriam and was not binding upon the two Courts below and on
this Court. He submits that insofar as the judgments of this Court in
case of Press Trust of India Employees Union & Anr. (supra) and
in case of Sadhana Textile Industries Pvt. Ltd. (supra) are
concerned, those cases are also decided without noticing law laid
down by the Supreme Court prior to the judgment delivered in case of
State Bank of India & Ors. vs. T.J. Paul (supra) and thus both these
judgments delivered by the learned single Judge of this Court are
also per-incuriam and are thus not binding on this Court.
46. It is submitted that in any event the facts before this Court
in both the judgments were totally different. The question as to
whether the term "discharge" amounts to dismissal or is species of
term "dismissal" or not was not an issue before this Court in case of
Press Trust of India Employees Union & Anr. (supra) and in case
of Sadhana Textile Industries Pvt. Ltd. (supra). He submits that
both these judgments are even otherwise distinguishable in the facts
of this case. He submits that the Supreme Court in case of Shyamlal
(supra) had considered the punishment of removal based on the
misconduct, which judgment has been subsequently followed by the
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Supreme Court in later judgment. He submits that the punishment
contemplated as punitive action amounted to dismissal. If the
petitioner would have simplicitor dismissed the said employees from
service with one month salary, they could have challenged such
action on the part of the petitioner on the ground that what was
required to consider was the foundation of the action initiated by the
petitioner and veil ought to have been lifted by this Court and such
order of simpliciter dismissal ought to have been set aside by this
Court on that ground.
47. It is submitted by the learned senior counsel that the
powers and rights of the employer to inflict higher punishment
includes lesser punishment also. Instead of inflicting higher
punishment for committing misconduct by the said employees, the
petitioner had taken a liberal view by considering the conditions under
the Standing Orders 26(4) and awarded the lesser punishment. He
submits that the two Courts below ought to have interpreted the
provisions of the Standing Orders harmoniously and ought to have
considered the intention of the petitioner while inflicting lesser
punishment before declaring the action of the petitioner as bad and
illegal. He submits that if an employer had lower rights, such
employer could not exercise higher rights however if he had higher
rights, he could exercise lower rights and the same cannot be
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declared as bad and illegal. He submits that all the cases of dismissal
includes discharge. He submits that discharge in place of dismissal is
different than simplicitor discharge.
48. Insofar as the submission of the learned counsel for the
said employees that since the two Courts below have not decided the
legality and validity of the punishment inflicted by the petitioner and
thus this Court shall remand the matter back to the Labour Court for
adjudication of that judgment is concerned, it is submitted by the
learned senior counsel that no such decision of the Labour Court not
to decide that issue was challenged by the said employees before the
Industrial Court or before this Court and thus no such request can be
made by the said employees for remand before Labour Court at this
stage. He submits that in any event, since both the employees have
otherwise retired in normal course and the factory of the petitioner is
already closed as far back as in the year 2002, no purpose would be
served by remanding the matter to the Labour Court as canvassed by
the learned counsel for the said employees.
REASONS AND CONCLUSION :
49. It is not in dispute that the original respondent no.1 had
joined the employment of the petitioner on 5th December, 1964. The
original respondent no.2 had joined the employment of the petitioner
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some time in the year 1973.The parties are governed by the certified
Standing Orders as settled by the Commissioner of Labour under
section 35(2) of the Bombay Industrial Relations Act, 1946. It is not in
dispute that both the employees were permanent operatives under
clause 3(1)(a) of the Standing Orders. Both the employees were
charge-sheeted on 30th May, 1995 by the petitioner and were
charged with various acts of misconduct such as (a). Drinking hard
liquor during working hours inside the factory of Empire Dyeing; (b).
Riotous, disorderly and indecent behaviour during working hours on
the premises of Empire Dyeing ; (c). Threatening Security staff of
Empire Dyeing without any provocation and (d). Commission of any
acts subversive of discipline or good behaviour on the premises of
the Empire Dying.
50. The petitioner had conducted an enquiry against both the
employees by appointing an Enquiry Officer to conduct an enquiry
and to submit a report in respect of those charges against both the
employees. The said employees had appeared before the Enquiry
Officer. The Enquiry Officer submitted a report holding both the
employees as guilty of all the charges including serious misconduct
levelled against them.
51. Both the employees thereafter filed their explanation dated
15th March, 1993 and pleaded "not guilty" to the charges levelled
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against them. By an order dated 30th May, 1995, the petitioner
referred to the charges levelled against the employees by the
petitioner, the report submitted by the Enquiry Officer holding both the
employees as guilty of the charges contained in the charge-sheets
dated 13th March, 1993 and that the petitioner had concurred to the
findings of the Enquiry Officer. It was mentioned in the said order that
taking into consideration the seriousness of the misconduct
committed by those employees, the petitioner had been justified in
dismissing them from the employment of the company. The petitioner
however, had also looked into the past records of those employees to
find out any extenuating circumstances and found none of such
extenuating circumstances against them. It was further stated that
however, taking into consideration the length of service, the petitioner
had decided to take a lenient view in the matter to discharge them
from the employment of the company with effect from the closing
hours of 31st May, 1995.It was further mentioned that apart from the
legal dues, the petitioner had also decided to pay to those employees
one month's notice pay in lieu of notice.
52. Both the employees had impugned the said order by filing
separate applications before the Labour Court under sections 42(4),
78 and 79 of the Bombay Industrial Relations Act, 1946 on various
grounds including the alleged perversity in the report submitted by the
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Enquiry Officer holding the employees as guilty of misconduct. The
employees had also raised an issue that the punishment of discharge
inflicted by the petitioner was not one of the punishment prescribed in
the Standing Order 24. The said application was resisted by the
petitioner by filing the written statement by the petitioner. It was
contended in the written statement by the petitioner that the
punishment of discharge was given by the petitioner to the
employees looking into the seriousness and gravity of misconduct.
The petitioner also contended that the petitioner had considered the
past records of the employees before awarding the punishment.
53. The Labour Court framed following three issues and the
following conclusions rendered thereon :
1) Whether findings of the enquiry officer are
perverse ? ....No
2). Do the applicants prove that the
punishment of discharge awarded to them is illegal
and improper ? ...Yes
3). Do the applicants prove that they are
entitled to the relief of reinstatement with continuity
and full back wages ? ...Yes
4). What order ?
...Applications are partly allowed as per
order below."
54. Insofar as the issue as to whether the findings of the
Enquiry Officer were perverse or not, the Labour Court held that the
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same were not perverse and decided the said issue against the
employees. However, the Labour Court held that the punishment
inflicted by the petitioner of discharge was not specifically provided in
the Standing Orders and therefore, the action of the petitioner in
inflicting the punishment of discharge against the employees was
illegal, improper and against the provisions of the Standing Orders.
The Labour Court though referred to various judgments referred to
and relied upon by the petitioner including the judgment in case of
Dr.Dattatraya M. Nadkarni (supra) and in case of New Shorrock
Mills (supra) which are relied upon by the petitioner before this Court
also did not deal with the said judgments in the impugned order and
judgment. The entire judgment was based on the judgment of the
Supreme Court in case of State Bank of India & Ors. (supra).
55. The Labour Court accordingly allowed the said two
applications filed by the employees and directed the petitioner to
reinstate them in service with continuity and full back wages. It was
however, made clear that whatever relief was granted by them in
favour of the employees must be read subject to closure and out
come thereof. The Industrial Court formulated two points for
determination. The employees did not challenge the findings of the
Labour Court holding that the findings rendered by the Enquiry Officer
were not perverse.
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56. The Industrial Court also confirmed the findings of the
Labour Court. Before the Industrial Court, the petitioner placed
reliance on the judgment of the Supreme Court in case of Lokmat
Newspapers Pvt. Ltd. (supra), the judgment of the Division Bench of
this Court in case of Vasant G. Gurav & Anr. (supra), the judgment
of the Supreme Court in case of Shyamlal (supra), the judgment of
the Supreme Court in case of S.R. Tewari (supra) and few other
judgments which are relied upon by the petitioner also before this
Court. The Industrial Court however, followed the judgment of the
Supreme Court in case of State Bank of India & Ors. (supra) and
held that the petitioner had no right or authority to impose punishment
beyond gradation of punishments prescribed in the Standing Orders.
It is accordingly held by the Industrial Court that since the punishment
like discharge was not prescribed in the Standing Orders, even if
misconduct was proved, the action of the petitioner imposing penalty
of discharge was not sustainable in law and thus no interference was
warranted with the order and judgment passed by the Labour Court
and dismissed the said appeal filed by the petitioner.
57. The questions that arise for consideration of this Court
are :
(a) Whether the real intention of the petitioner
and the punishment inflicted by the petitioner was
infact the punishment of dismissal ?
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(b) If the punishment inflicted upon the
employees was not of dismissal in true sense, whether
the punishment of discharge not having been
enumerated as one of the punishment in the Standing
Orders applicable to the parties could have been
inflicted at all though not enumerated in the Standing
Orders even by way of lesser punishment than what
employees were liable to be inflicted upon out of the
punishments enumerated in the Standing Orders ?
58. The Supreme Court in case of Gujarat Steel Tubes Ltd.
(supra) has held that the form of the order in a case is not conclusive
and the Tribunal can go beyond the order to find out the reasons
which led to the order and then consider for itself whether the
termination was colourable exercise of the power or was a result of
victimization or unfair labour practice. If the Court comes to the
conclusion that exercise of power was a colourable exercise or was a
result of victimization or unfair labour practice, it would have
jurisdiction to intervene and set aside such termination. It is possible
that the form may be merely a camouflage for an order of
misconduct.
59. In my view the form of order is not deceive as to whether
the order is by way of punishment or not. There may be a situation
where the employer may give different nomenclature in the order
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which is other than the real intention of the employer. The court has
to lift the veil in such a situation to find out as to whether the true and
correct punishment was inflicted as reflected in the order or the
nomenclature of the punishment was not as actually intended or was
camouflage.
60. It is held by the Supreme Court that if the discharge has
been ordered by the employer in the bonafide exercise of his power,
then the industrial tribunal may not interfere with it, but the words
used in the order of discharge and the form which it may have taken
are not conclusive in the matter and the industrial tribunal would be
entitled to go behind the words and form and decide whether the
discharge is a discharge simpliciter or not. If it appears that the
purported exercise of power to terminate the services of the
employee was in fact the result of the misconduct alleged against
him, then the tribunal wold be justified in dealing with the dispute on
the basis that, despite its appearance to the contrary, the order of
discharge is in effect an order of dismissal. It is held that in the matter
of an order of discharge of an employee as understood within the
meaning of the Industrial Dispute Act, the form of the order and the
language in which it is couched are not decisive.
61. In my view, though the petitioner has used the word
"discharge" in the letter of termination, which is not specifically
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provided in the Standing Order 24 applicable to the parties, it is not
in dispute that in this case, pursuant to the charge-sheets issued
against the said employees alleging misconduct described in the
Standing Orders under clause 22(k), a full fledged enquiry was
conducted by the petitioner. The Enquiry Officer has followed the
principles of natural justice and had given an opportunity to the said
employees to represent themselves in the enquiry proceedings.
There is also no dispute that in the findings rendered by the Enquiry
Officer the said employees were found guilty of all the charges
levelled against them in the charge-sheets and such findings were
accepted by the petitioner. The two Courts below have also rejected
the specific contention of the said employees in the proceedings filed
by them challenging the findings rendered by the Enquiry Officers
that the findings were not perverse. It is not in dispute that the
findings rendered by the two Courts below that the findings of the
Enquiry Officer were not perverse have not been challenged by the
said employees by filing a separate writ petition in this Court.
62. In my view, Mr.Naik, learned senior counsel for the
petitioner is thus right in his submission that the Court cannot decide
merely on the basis of the form of punishment inflicted by the
employer but can see the foundation of initiating such a disciplinary
enquiry. The petitioner after considering the explanation rendered by
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the said employees, vide its letter of termination dated 30th May, 1995
made it clear that the petitioner had concurred with the findings of the
Enquiry officer and the petitioner had been justified in dismissing the
said employees from the employment of the company. It is clear that
the petitioner however considered the past records to find out any
extenuating circumstances and having found none of such
extenuating circumstances and having taking into consideration the
length of service, the petitioner chose to reduce the quantum of
punishment against the said employees by offering the legal dues
and also one month's notice pay in lieu of notice.
63. It is thus clear that the Enquiry Officer had recommended
dismissal of the said employees. The petitioner had alleged serious
misconduct against the said employees in the charge-sheet. The
petitioner accepted the findings rendered by the Enquiry Officer and
rejected the explanation rendered by the said employees. The
petitioner had intended that the said employees shall not be
continued in the employment of the petitioner. The principles laid
down by the Supreme Court in case of Gujarat Steel Tubes Ltd.
(supra) squarely applies to the facts of this case.
64. The Supreme Court in case of S.R. Tewari (supra) has
held that the form of order under which the employee or a servant is
determined is not conclusive of the true nature of the order. The form
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may be merely of camouflage order of dismissal or misconduct and it
is always open to the Court before which the order is challenged to
go behind the form and ascertain the true character of order. The
Court would not be debarred merely because of the form of order in
giving effect to the rights conferred by the statutory rules upon the
employee.
65. The Supreme Court in case of New Shorrock Mills
(supra) has held that the Labour Court had over looked the finding of
the Enquiry Officer, the respondent had misbehaved with his superior
officer and was guilty of misconduct and thus the employer could
have dismissed the respondent from service. The employer however,
chose not to do so and instead had passed an order of discharging
the respondent from service. It is held that the lesser punishment
having been given by the management itself there was no justifiable
reason for the Management to have set aside the punishment so
awarded. In this case it was not the case of the said employees that
the punishment of discharge inflicted by the petitioner with payment
of legal dues and notice pay inspite of the findings of the Enquiry
Officer that all charges of misconduct were proved against the said
employees, was lower than the punishment of dismissal that could
have been awarded by the employer against the said employees.
66. The said employees did not dispute before the two Courts
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below that the punishment of discharge inflicted by the petitioner
against them was lesser punishment than what could have been
inflicted upon them by the petitioner in view of the findings of the
Enquiry officer holding the said employees guilty of all charges of
misconduct as levelled in the charge-sheets. The only argument
advanced before the two Courts below while challenging the legality
and validity of the punishment of discharge inflicted by the petitioner
was that the same was outside the punishment enumerated in the
Standing Orders and more particularly clause 24 of the Standing
Orders. Both the Courts below have though rendered the findings in
favour of the petitioner that the findings of the Enquiry Officer were
not perverse, has declared the punishment of discharge as bad and
illegal on the ground that the same was not enumerated as one of the
punishment in clause 24 of the Standing Orders.
67. Supreme Court in case of Dr.Dattatraya M.Nadkarni
(supra) held that it was never the case of the employer in the written
statement that they wanted to impose the punishment of removal with
an intention not to disqualify the appellant from future employment. In
the show cause notice, the employer had clearly mentioned that the
disciplinary authority wanted to impose the punishment of dismissal.
Supreme Court held that the court has to go behind the form and
ascertain the true character of the order. It is accordingly held that the
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impugned order of punishment was an order of dismissal from the
service though the order may have used the term of removal from
service.
68. Supreme Court in the case of the State Bank of India &
Ors. (supra) has considered the Bank of Cochin Service Code
providing for Discipline and Disciplinary action against the
employees. High Court had allowed the writ petition filed by the
employer partly, however, had observed that the employer could
impose punishment for minor misconduct as per the rules of Bank of
Cochin Service Code. Division Bench of the High Court dismissed the
appeal filed by the employer. Supreme Court held that the appellate
authority once having come to the conclusion that the punishment of
dismissal was not warranted in the facts of the case, it could not have
awarded the punishment of removal which was not one of the
enumerated under Rule 22(v) of the Bank of of Cochin Service Code
applicable to the employees. It is held that since the rules of Bank of
Cochin had enumerated and listed out the punishment for major
misconduct, the punishment of removal could not have been
imposed by the appellate authority and all that permissible was that
the bank may impose one or other punishments for major misconduct
enumerated in para 22(v) of the Rules other than dismissal without
notice.
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69. Supreme Court in that judgment upheld the judgment of
the High Court for removal, however, remitted the matter back to the
appellate authority for considering which of the punishments other
than dismissal without notice under para 22(v) of the Rules could be
imposed on the respondent. The judgment of Supreme Court in the
case of Shyamlal Vs. State of UP & Anr. (supra), in the case of
Dr.Dattatraya M.Nadkarni Vs. The Municipal Corpn. of Greater
Bombay (supra), in the case of Lokmat Newspapers Pvt. Ltd.
Vs. Shankarprasad (supra), in the case of Tewari Vs. District
Board, Agra (supra) and in the case of New Shorrock Mills Vs.
Maheshbhai T. Rao (supra) were not considered by the two courts
below though the same were applicable to the facts of this case and
were binding on the two courts below.
70. In my view the two courts below ought to have lift the veil
and to find out the correct nature and true intent of the petitioner in
granting the punishment to the said employees. In my view the actual
punishment was an order of dismissal.
71. Single Judge of this Court in the case of Sadhna Textile
Industries Pvt. Ltd. (supra) has considered an issue whether the
employer while deciding the question of punishment to be awarded
to a workman found guilty of any misconduct under Standing
Order could have awarded any punishment other than one of those
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specified in Standing Order No.21 which provided various
punishments in case of misconduct by an employee. This Court
held that the powers of he employer does not extend beyond the
punishment specified in the Standing Order. This Court also
considered whether the power of the Court is restricted or limited to
decide which of the punishments specified in the Standing Order
would be proper punishment for the misconduct in question or
whether it can modulate the punishment in any manner it thinks fit
and proper.
72. The learned single Judge of this Court in the case of
Press Trust of India Employees Union & Anr. Vs. Press Trust of
India Limited & Anr. (supra) has considered the similar Standing
Order and has held that where the certified standing orders provide
for enumerated penalties, it is not open to the management to
impose a penalty that is not contemplated therein. Undoubtedly a
disciplinary authority upon considering the representation of the
employee against the punishment that is proposed to be imposed
upon the report of the enquiry officer is entitled to impose a lesser
punishment if it comes to the conclusion that such an action is
warranted. However, the punishment that is imposed has to be in
consonance with the standing orders which statutorily constitute a
part of the terms and conditions of service. This Court adverted to
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and followed the judgment of the Supreme Court in the case of State
Bank of India & Ors. (supra) and held that discretion of the
disciplinary authority to reduce the punishment cannot be doubted.
The authority in doing so is governed by the discipline of the certified
standing orders and must confine itself to one of the punishments
enumerated thereunder.
73. The learned single Judge also referred to the judgment of
the Division Bench of this Court in the case of Vasant G. Gurav &
Anr. (supra) and also the judgment of the Supreme Court in the
case of State Bank of India & Ors. (supra) and held that the
judgment of the Division Bench of this Court must be considered
together with the subsequent judgment of the Supreme Court in the
case of State Bank of India & Ors. (supra) in which the Supreme
Court has held that in the context of service rules must apply a
fortiori to certified Standing Orders which have the force of an Act of
Parliament viz. The Industrial Employment (Standing Orders) Act,
1946. This Court accordingly, though did not interfere with the
finding of the enquiry committee, has interferred with the order of
the disciplinary authority holding that the past record of the
workman provided an extenuating circumstances, proceeded to
impose a punishment which was not enumerated in the certified
standing orders.
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74. This Court accordingly remitted the matter back to the
disciplinary authority to re-consider what other punishment should be
imposed on the second petitioner in the light of its finding that a
reduction of the penalty was warranted in the light of past clean
record of the workman. This Court accordingly set aside the order of
punishment to facilitate a determination on remand. It is the
submission of the learned senior counsel for the petitioner that since
the judgment of the Supreme Court in the case of State Bank of
India & Ors. (supra) is per incurium, the judgment of the learned
Single Judge of this Court in the case of Press Trust of India
Employees Union & Anr. Vs. Press Trust of India Limited & Anr.
(supra) following the judgment of the Supreme Court in the case of
State Bank of India & Ors. (supra) is also per incurium and is not
binding on this Court.
75. In the case of M/s.Glaxo Laboratories (I) Ltd. Vs.
Presiding Officer, Labour Court, Meerut & Ors., reported in AIR
1984 SC 505, Supreme Court has held that the scheme of the
Industrial Employment (Standing Orders) Act, 1946 would show that
the certified standing orders have more or less a statutory flavour.
If that be so, ordinary cannons of construction of statutes would be
attracted where the dispute arises about construction or
interpretation of certified standing orders.
76. Since this Court is of the view that the punishment inflicted
upon the said employees by the petitioner was in fact the punishment
of dismissal in view of the petitioner having accepted the findings
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rendered by the learned Enquiry Officer which punishment is
admittedly one of the punishment enumerated in the Standing Order
24, this Court need not go into the issue raised by the learned senior
counsel for the petitioner that the punishment described in the order
of termination as discharge was species of the punishment
'dismissal' or that the petitioner was not precluded from imposing a
lesser punishment than what was contemplated in the Standing
Orders. The principles laid down by the Supreme Court in case of
New Shorrock Mills (supra) and also the judgment of the Division
Bench of the Court in case of Vasant G. Gurav & Anr. (supra) relied
upon by the learned senior counsel for the petitioner thus need not be
dealt with by this Court.
77. This Court consequently also need not deal with the issue
whether the judgments of the Supreme Court referred to and relied
upon by the learned senior counsel which were delivered prior to the
judgment of the Supreme Court in the case of State Bank of India &
Ors. vs. T.J. Paul (supra) not having been cited and/or referred to in
the judgment of the Supreme Court in case of State Bank of India &
Ors. (supra), the judgment in case of State Bank of India and
another, would be per-incuriam or not. In my view, the reliance
placed by the two Courts below on the judgment of the Supreme
Court in case of State Bank of India & Ors. (supra) is thus
misplaced in the facts of this case.
78. Insofar as the judgment of this Court in case of Sadhna
Textile Industries Pvt. Ltd. (supra) and in case of Press Trust of
India Employees Union & Anr. (supra) relied upon by the learned
counsel for the said employees is concerned, in my view since this
Court is of the view that the petitioner had in fact inflicted the
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punishment of dismissal though the nomenclature used by the
petitioner was "discharge" as is apparent from the contents of the
show cause notice, the report of the Enquiry Officer, letter of
termination issued by the petitioner, reliance placed by the learned
counsel for the said employees on the aforesaid two judgments of
this Court is also misplaced and in any event would not assist the
case of the said employees.
79. Insofar as the judgment of the Supreme Court in case of
N.S. Giri (supra) relied upon by the learned senior counsel for the
petitioner in support of his submission that the earlier judgments
delivered by the Larger Bench of the Supreme Court were not
brought to the notice of the Supreme Court in case of State Bank of
India & Ors. (supra) and thus the said judgment in case of State
Bank of India & Ors. (supra) is per-incuriam is concerned, in my
view since this Court has accepted the submission of the learned
senior counsel for the petitioner that the Court has to lift the veil to
ascertain the true and correct intention of the employer while inflicting
the punishment and shall not go as per the nomenclature or the
wordings used in the letter of termination, this Court need not go into
the issue whether the judgment of the Supreme Court in case of
State Bank of India & Ors. (supra) is per-incuriam or not.
80. Similarly the judgment of the Supreme Court relied upon
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by the learned senior counsel for the petitioner in case of Surendra
Kumar Verma Etc. (supra) in support of his submission that the said
employees could not have been awarded full back wages by the two
Courts below also need not be considered by this Court in view of the
fact that this Court has taken a view in the judgment that the
impugned orders passed by the two Courts below deserves to be set
aside on the ground that the punishment inflicted by the petitioner on
the said employees was one of the punishment enumerated in the
Standing Order 24.
81. Learned counsel for the said employees however rightly
invited my attention to paragraph 8 of the impugned order and
judgment dated 2nd February, 2002 passed by 5th Labour Court,
Mumbai, allowing Application (BIR) Nos.81 of 1995 and 82 of 1995
filed by the said employees and submits that the Labour Court has
not considered the legality and propriety of the order passed by the
employer as to whether the same was disproportionate to the
misconduct alleged of the said employees or not. In my view, learned
counsel for the said employees is right in her submission that if this
Court comes to the conclusion that the conclusion drawn by the two
Courts below that the punishment inflicted by the petitioner was not
the punishment enumerated in the Standing Order 24, this Court will
have to remand the matter back to the Labour Court to consider the
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legality of quantum of punishment awarded by the petitioner and
whether the same was disproportionate to the act of misconduct
alleged to have been committed by the said employees or not.
82. In my view, though the petitioner had conveyed to the said
employees in the letter of termination itself that the employer had
accepted the findings rendered by the learned Enquiry Officer and the
services of the said employees deserves to be terminated, the
petitioner however, while inflicting the punishment upon the said
employees though had granted part of the service benefits to the said
employees, that would not change the nature of punishment of
dismissal inflicted upon by the petitioner upon the said employees.
83. I am not inclined to accept the submission of the learned
senior counsel for the petitioner that the said employees not having
challenged the said part of the impugned orders passed by the two
Courts below by filing a separate writ petition, this Court cannot
remand the matter back to the Labour Court for this limited enquiry.
The said employees have succeeded before the two Courts below
and the punishment inflicted by the petitioner having been set aside
by the two Courts below in favour of the said employees, in my view
the said employees were not required to challenge that part of the
order of the Labour Court not dealing with the issue of legality,
propriety and quantum of punishment inflicted by the petitioner upon
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the said employees and whether the same was disproportionate to
the act of misconduct alleged/proved against the said employees.
84. Since this Court is of the view that the punishment of
discharge inflicted by the petitioner upon the said employees was in
fact the punishment of dismissal enumerated in the Standing Order
24, the impugned orders passed by the two Courts below taking a
contrary view deserves to be set aside. In such a situation, the
Labour court will have to decide whether the punishment of dismissal
inflicted upon by the petitioner upon the said employees is whether
disproportionate to the act of misconduct alleged/proved against the
said employees before the learned Enquiry officer. It is made clear
that the Labour Court cannot re-open the issue whether the enquiry
proceedings were properly conducted or not and whether the findings
rendered by the learned Enquiry Officer were perverse or not, since
such findings have already attained finality in view of the said
employees not having challenged the same by filing a separate writ
petition.
85. I therefore, pass the following order :-
a). The writ petition is made absolute in terms of prayer clause
(a).
b). The Application (BIR) Nos.81 of 1995 and 82 of 1995 filed
by the said employees are restored to file. The Labour Court shall
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decide the issue as to whether the punishment of dismissal inflicted
by the petitioner upon the said employees was excessive and
disproportionate to the act of misconduct committed by the said
employees or not in the fact situation of this case or not after hearing
both the parties and shall pass a reasoned order in accordance with
law. The Labour Court would be at liberty to pass appropriate order
for consequential benefits including continuity in service and
backwages based on the finding as may be rendered by the Labour
Court on the limited issue. The Labour Court shall dispose off the
applications filed by the said employees to this limited extent within
six months from the date of communication of this order.
c). Rule is made absolute in aforesaid terms.
d). The parties as well as the Labour Court shall act on the
authenticated copy of this order.
e). There shall be no order as to costs.
(R.D. DHANUKA, J.)
