Bombay High Court

Daundkar Pradeep Shahaji vs M/S. Tata Motors Limited on 28 March, 2023

Bench: N. J. Jamadar

2023:BHC-AS:9345
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                                                                                         Santosh
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION


                                       WRIT PETITION NO. 9736 OF 2021

               Daundkar Pradeep Shahaji
               A/P Kanersar, Tal. Khed, Pune - 410 505                         ...Petitioner
                                    Versus
               M/s. Tata Motors Limited,
               Passenger Car Business Unit, Sector No.15,
               and 15A, P.C.N.T.D.A., Dist. Pune - 410 501.                 ...Respondent


               Mr. Neel Helekar, for the Petitioner.
               Mr. Kiran Bapat, Senior Advocate, a/w Gaurav Gawande,
                    Rachit Bharwada, i/b Haresh Mehta & Co., for the
                    Respondent.

                                                          CORAM: N. J. JAMADAR, J.

RESERVED ON: 14th MARCH, 2023 PRONOUNCED ON : 28th MARCH, 2023 JUDGMENT:-

1. Rule. Rule made returnable forthwith and with the

consent of the learned Counsel for the parties heard finally.

2. Should a workman who assaults his co-workman be

punished with the penalty of dismissal from service is the

question which the present petition poses.

3. The aforesaid question arises in view of the challenge by

the petitioner - workman to the judgment and awards dated 9 th

February, 2018 and 9th June, 2020 by the learned Presiding

Officer, Labour Court, Pune, in Reference (IDA) No.255 of 2014,

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whereby and whereunder the enquiry against the petitioner was

held to be legal, fair and proper and the findings of the enquiry

officer not perverse and, resultantly, the reference as to whether

the services of the petitioner were terminated illegally and

whether the petitioner was entitled to be reinstated in service

was answered in the negative.

4. Background facts necessary for determination of the

aforesaid question can be stated as under:

(a) On 20th January, 1999, the petitioner was appointed

as a Mechanist Grinder with the respondent Company. The

petitioner was posted in Engine Shop. On 14 th May, 2013, the

petitioner reported to duty in 'A' shift on crankshaft line. At

about 6.40 am. the petitioner went to the locker room near

Metrology Laboratory. Mr. S. B. Shinde, a co-workman, had

come to the locker room to take his safety shoes. Suddenly, it is

alleged, the petitioner mounted assault on Mr. Shinde. Before

Mr. Shinde offered any resistance the petitioner punched him

hard on the left eye. The petitioner continued to unleash the

blows. Mr. Shinde fell down. The petitioner gave kick blows

despite Mr. Shinde having fallen to the floor. As Mr. Shinde

raised alarm, other team members rushed to the spot and

rescued Mr. Shinde.

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(b) A charge-sheet-cum-notice of enquiry dated 25th

June, 2013 was served on the petitioner alleging inter alia that

the aforesaid acts of the petitioner amounted to misconduct

within the meaning of Clause 24(k) and 24(l) of the Standing

Orders.

participated in the enquiry. Respondent examined eight

witnesses in support of the charge. Petitioner examined himself

in defence. Eventually the Enquiry Officer submitted a report

finding the petitioner guilty of the misconduct. Copy of the

Enquiry Report was served on the petitioner. Explanation was

submitted by the petitioner on 10 th February, 2014. By an order

dated 7th April, 2014, the respondent imposed the penalty of

dismissal from service as per the provisions of Clause 25(1)(d) of

the Standing Orders applicable to the petitioner.

(d) Upon an industrial dispute being raised, the

appropriate Government made following reference to the Labour

Court under Section 10(1)(c) read with Section 12(5) of the

Industrial Disputes Act, 1947 ("the ID Act, 1947"):

"Whether services of second party - Shri Pradip Shahaji Daundkar have been terminated illegally on 07/04/2014 by the first party or not?

If yes, whether he is entitled to be reinstated on his original post with full back wages from the date of

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termination and continuity of service along with consequential benefits or not?"

(e) By an award (Part-I) dated 9th February, 2018, the

learned Presiding Officer, Labour Court, was persuaded to

answer the preliminary issues as to the legality of the enquiry

and findings recorded by the Enquiry Officer in favour of the

respondent and hold that the enquiry conducted against the

petitioner was legal, fair and proper and in conformity with the

principles of natural justice and that the findings recorded by

the Enquiry Officer were not perverse.

(f) By an award (Part-II) dated 9th June, 2020, the

Presiding Officer held that the punishment inflicted on the

petitioner by the respondent was not shockingly

disproportionate and, resultantly, the termination of the

petitioner was not illegal and the petitioner was not entitled to

the relief of reinstatement with continuity in service and back-

wages. The reference was thus answered in the negative.

5. Being aggrieved by and dissatisfied with the aforesaid

awards the petitioner has preferred this petition.

6. I have heard Mr. Helekar, the learned Counsel for the

petitioner and Mr. Bapat, the learned Senior Advocate for the

respondent, at some length. With the assistance of the learned

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Counsel for the parties, I have perused the material on record

especially the charge-memo, Enquiry Report and the impugned

awards.

7. Mr. Helekar submitted that the impugned awards deserve

to be interfered with as the Labour Court lost sight of the fact

that the alleged victim had no grievance against the petitioner.

An endeavour was made to impress upon the Court that there

was some transaction between the petitioner and Mr. Shinde,

the alleged victim. In that context, non-examination of an eye

witness to the occurrence renders the department's case

unworthy of credence. The findings of the Enquiry Officer,

therefore, could not have been readily accepted by the Labour

Court.

8. As a second limb of the submission Mr. Helekar would

urge that the proportionality of the penalty is required to be

judged in the context of the starta of the society the petitioner

and the alleged victim come from. They were essentially blue

collar workmen. An incident of altercation between co-workman

has been blown out of proportion by the respondent. From this

standpoint, the punishment can be said to be shockingly

disproportionate to the gravity of the misconduct. Therefore, the

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impugned orders deserve to be quashed and set aside, urged Mr.

Helekar.

9. On the first count, attention of the Court was invited to

the Complaint (Exhibit-C) lodged by Mr. Shinde on the very day

of the occurrence. Emphasis was laid on the last paragraph of

the said complaint wherein Mr. Shinde claimed that he had

brought the said incident to the notice of the authorities so that

such incident should not recur in future and that he had no

personal grudge against the person against whom the complaint

was made i.e. the petitioner. Mr. Helekar also invited attention

of the Court to the findings in the Enquiry Report wherein most

of the witnesses examined by the respondent have deposed to

the fact that they either came at the spot of occurrence after the

occurrence was over or learnt about the same later.

10. First and foremost, in exercise of writ jurisdiction this

Court is not expected to sit in appeal over the findings of the

disciplinary authority. It is trite judicial review is not an

exercise in appeal from a decision but essentially a review of the

manner of decision making process. Secondly, it is equally well

settled, strict rules of evidence do not apply to disciplinary

proceedings. If there is some material on the basis of which the

disciplinary authority has arrived at a finding, it is not open in

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exercise of writ jurisdiction to interfere with the finding of fact

unless the Court comes to the conclusion that the finding is not

based on any evidence or wholly perverse.

11. In the case at hand, the findings recorded by the Enquiry

Officer cannot be said to be either based on no evidence or

otherwise perverse. From the tenor of the defence of the

petitioner it becomes abundantly clear that the incident as such

was not put in contest. A different version of the incident, at the

most, was sought to be offered by the petitioner. It was sought

to be explained by asserting that while the petitioner and Mr.

Shinde were in the locker room, the petitioner accidentally gave

a push to Mr. Shinde and the latter lost balance and fell on the

locker and thereby sustained injury.

12. The statement of Mr. Shinde is not only supported by the

statements of the respondent's witnesses but there is a

formidable dyke in the form of injury certificate. The injury

certificate (Exhibit-8(ii)) issued by Nirmala Hospital, clearly

records that Mr. Shinde had narrated history of assault by a

colleague. Multiple injuries were noted on the face of Mr.

Shinde. If the complaint (Exhibit-6) of Mr. Shinde, on which Mr.

Helekar laid emphasis is considered in juxtaposition with the

aforesaid material, it becomes abundantly clear that specific

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allegations of assault were made by Mr. Shinde against the

petitioner. Mr. Shinde alleged that the petitioner unleashed

successive blows without giving him any opportunity to resist

and gather his bearings. The last sentence in the said complaint

that Mr. Shinde had no personal grudge against the assailant

therefore cannot be read torn out of context.

13. No case of either breach of the rules or principles of

natural justice could be made out. Given the facts of the case,

nor the findings can be said to be perverse. In the backdrop of

the material on record, the learned Presiding Officer, Labour

Court, does not seem to have committed any error in returning a

finding that the enquiry was legal, valid and proper and in

conformity that the principles of natural justice and the findings

were not perverse.

14. Mr. Helekar strenuously submitted that the punishment of

dismissal from service is shockingly disproportionate to the

gravity of the misconduct. It was not the case that Mr. Shinde

had suffered any grievous injury. A minor scuffle, even if

assumed to have taken place between two co-workers, without

any threat to industrial peace could not have been made a basis

for dismissal of the petitioner.

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15. Per contra, Mr. Bapat would urge that ultimately it was

the responsibility of the respondent to maintain peace and

safety in the factory. The proved misconduct within the meaning

of Clause 24(k) and 24(l) of the Standing Orders can only be

said to be grave and potentially threatened the industrial peace.

In any event, according to Mr. Bapat, this Court in exercise of

writ jurisdiction would not be justified in interfering with the

order of punishment unless disproportionality of the

punishment shocks the conscious of the Court. Mr. Bapat

submitted that acts of violence within the precincts of the

factory haven been held to be instances of grave misconduct

entailing dismissal from service.

16. To bolster up the aforesaid submission Mr. Bapat placed a

strong reliance on a Three-Judge Bench judgment of the

Supreme Court in the case of B. C. Chaturvedi vs. Union of

India and Others1. In the said case, the Supreme Court after

adverting to the nature of the judicial review enunciated that

normally the Tribunal/Court cannot substitute its own

conclusion on the penalty and impose some other penalty than

the one imposed by the Disciplinary Authority in exercise of

power of judicial review. The observations of the Court in

1(1995) 6 Supreme Court Cases 749.

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paragraphs 12, 13 and 18 are instructive and hence extracted

below:

"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 ensure 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 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 re- appreciate 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.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.

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.......

18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof."

17. It would be contextually relevant to note that the learned

Presiding Officer, Labour Court, referred to and relied upon a

judgment of this Court in the case of Holy Spirit Hospital and

others vs. Benjamin Fernandes2, wherein this Court did not

approve of the course adopted by the Labour Court in

substituting the penalty of dismissal from service with a lessor

penalty where the misconduct was of assaulting a superior

officer by the workman in the said case. The observations of this

Court in paragraphs 23 and 24 govern the facts of the case

at hand. They read as under:

"23. Mrs. Anita Rodrigues was a Supervisor and was superior in rank to the workman and belonging to the fairer sex. The incident of assault by the workman was in the precincts of the hospital where patients undergo medical treatment. Both were onduty at the relevant time when the incident took place. Clearly, the Lbaour Court has shown

22013(4) Bom.C.R. 253.

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undue leniency to the workman and only as a matter of misplaced sympathy interfered and altered the punishment of dismissal to that of reinstatement and permanently withholding two increments. The fact that the workman was serving in the hospital for several years and his past record was not adverse, was in my view, not an extenuating circumstance warranting interference with the punishment of dismissal awarded by the management considering the gross facts of the case.

24. Looking to the nature of misconduct, it certainly cannot be said that no reasonable person could inflict the punishment of dismissal nor can it be said that the dismissal order was so disproportionate as to shock the conscience of the Court. Discipline and congenial atmosphere is required to be maintained in any institution. To show leniency in a case such as the present one and to allow the workman to be reinstated would send a wrong signal to the other employees that one can get away lightly even with gross misconduct of assault on his superior. Even assuming for a moment that it was permissible to take a lenient view of the matter, it is of significance to note that at no point of time the workman has shown any remorse or afforded any apology either to Mrs. Anita Rodrigues or to the Hospital and his stand has all along been that of denial simplicitor."

18. In the case of L. K. Verma vs. H.M.T. Limited and another 3

a case of verbal abuse entailing the penalty of dismissal, the

Supreme Court, inter alia, observed as under:

"22. So far as the contention as regards quantum of punishment is concerned, suffice it to say that verbal abuse has been held to be sufficient for inflicting a punishment of dismissal."

19. In Mahindra and Mahindra Ltd. vs. N. B. Narawade,4 again

a case of verbal abuse, the Supreme Court has enunciated that

use of abusive language against a superior officer cannot be

termed to be an indiscipline calling for lesser punishment in the

3(2006) 2 Supreme Court Cases 269.

4(2005) 3 SCC 134.

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absence of any extenuating factor. The observations in

paragraph 20 read as under:

"20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. v. Adikanda Sahu (1960) 1 LLJ 518 (SC) and New Shorrock Mills v. Maheshbhai T. Rao (1996) 6 SCC 590 this Court held: 'Punishment of dismissal for using of abusive language cannot be held to be disproportionate.' In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove."

20. In Hombe Gowda Educational Trust and another vs. State

of Karnataka and others,5 a case of assault entailing the

punishment of dismissal, the Supreme Court had enunciated

the law as under:

5(2006) 1 Supreme Court Cases 430.

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"17. The Tribunal's jurisdiction is akin to one under Section 11A of the Industrial Disputes Act. While exercising such discretionary jurisdiction, no doubt it is open to the Tribunal to substitute one punishment by another; but it is also trite that the Tribunal exercises a limited jurisdiction in this behalf. The jurisdiction to interfere with the quantum of punishment could be exercised only when, inter alia, it is found to be grossly disproportionate.

18. This Court repeatedly has laid down the law that such interference at the hands of the Tribunal should be inter alia on arriving at a finding that no reasonable person could inflict such punishment The Tribunal may furthermore exercises its jurisdiction when relevant facts are not taken into consideration by the Management which would have direct bearing on the question of quantum of punishment.

19. Assaulting a superior at a workplace amounts to an act of gross indiscipline. The Respondent is a teacher. Even under grave provocation a teacher is not expected to abuse the head of the institution in a filthy language and assault him with a chappal. Punishment of dismissal from services, therefore, cannot be said to be wholly disproportionate so as shock one's conscience.

20. A person, when dismissed from services, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matters, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. ......"

21. In the light of the aforesaid enunciation of law, the

petitioner has to demonstrate that the punishment imposed is

shockingly disproportionate to warrant interference by this

Court in exercise of writ jurisdiction. It all boils down to the

prism through which the misconduct is viewed. Neither a case

of provocation, much less grave and sudden, nor any other

extenuating circumstance was sought to be pressed into service

on behalf of the petitioner. The counter version, sought to be

offered, was negated by the evidence on record. Even if the

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case of the petitioner is taken at par that there were some

transactions between the petitioner and Mr. Shinde, the victim,