Bombay High Court
M/S. Tata Consultancy Services Ltd vs Mr. Vinit Jain And Ors on 13 February, 2025
2025:BHC-AS:7874-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9360 OF 2017
WITH
INTERIM APPLICATION NO.13876 OF 2024
IN
WRIT PETITION NO.9360 OF 2017
TATA Consultancy Services Limited ... Petitioner
V/s.
Vinit Jain ... Respondent
______________
Mr. B.D. Birajdar with Ms. Komal Deshmukh, Advocates for the Petitioner.
Mr. Avinash Belge, Advocate for the Respondent No.1.
Ms. Priyanka B. Chavan, AGP for the Respondents No.2 and 3/State.
_______________
CORAM : SANDEEP V. MARNE, J.
Dated : 13 February, 2025.
ORAL JUDGMENT :
1. The employer-TATA Consultancy Serviced Limited has filed this
petition challenging the Award dated 23 rd March, 2017 passed by Presiding
Officer, Learned Labour Court, Mumbai in Reference (IDA) No.40 of 2015.
The Labour Court has partly allowed the reference by directing
reinstatement by the Respondent with 50% back-wages and continuity with
effect from 3rd October, 2013.
Digitally
signed by
PRIYA
PRIYA RAJESH
RAJESH SOPARKAR
SOPARKAR Date:
2025.02.18
10:31:54
2. Respondent was employed with the Petitioner since the year 2007 as
+0530
Band-2 employee and was promoted to the category of Band-3 employee in
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the year 2010. He was transferred to the Australian Credit Operation,
which is a blended process, whereby Respondent was entitled to voice
allowance irrespective of the fact whether he was receiving calls or not. It
is the contention of the Respondent that he was however denied such voice
allowance and that the Petitioner in arrears of amount of Rs.1,41,000/-
towards such voice allowance. It is Respondent's case that because he
demanded arrears of voice allowance, a show cause notice dated 29 th May,
2012 was issued to him alleging insubordination, reporting late for duties
etc. The Petitioner thereafter issued charge-sheet cum dismissal order dated
3rd October, 2013 dismissing the Respondent from service on allegations of
willful insubordination/disobedience, late attendance, disorderly indecent
behaviour, commission of acts subversive of discipline/good behaviour and
refusal to accept charge-sheets/orders/communications. The punishment of
dismissal from service imposed by the Petitioner vide an order dated 3 rd
October, 2013 became subject matter of Reference (IDA) No.40 of 2015
registered at the instance of the Respondent before 11 th Labour Court,
Mumbai. Since no disciplinary inquiry was held by the Petitioner-employer
while dismissing the Respondent, Petitioner chose to justify its action by
leading evidence before the Labour Court. After considering the pleadings
documentary and oral evidence, the Labour Court proceeded to hold that
the charges relating to insubordination and reporting late for duties were
proved whereas the balance charges were not proved against the
Respondent. The Labour Court however found that the punishment of
dismissal from service was not proportionate to the proved misconduct.
Accordingly, the Labour Court has warned the Respondent to be punctual
in attendance of work and not to commit any further acts of
insubordination. Labour Court has directed reinstatement of the
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Respondent with 50% back wages and continuity with effect from 3 rd
October, 2013. Petitioner-employer has challenged Labour Court's Award
dated 23th March, 2017 in the present petition. By order dated 24 th
November, 2022, the petition has been admitted. By further order dated
19th December, 2024, this Court has stayed the operation of the award
during pendency of the petition. The petition is called out for final
hearing with the consent of learned counsel appearing for parties and
submissions canvassed by them have been heard.
3. Mr. Birajdar, learned counsel appearing for Petitioner would submit
that since the charges of insubordination and late attendance of duties are
conclusively proved before the Labour Court, order of reinstatement could
not have been passed by the Labour Court. He would submit that
Respondent committed acts of insubordination atleast on four occasions on
3rd May, 2013, 4th July, 2013, 21st August, 2013 and 15th July, 2013, where
he simply refused to obey the orders given by his superiors. That the
Petitioner undertakes and executes various projects and whenever the
employees are deputed to work on the project, act of insubordination on
the part of the employee causes huge losses to the Petitioner-employer. He
would submit that for adjudging suitability of an employee to work on the
project, the employees are often subjected to process of interview. That
Petitioner used to refuse to participate in such interviews. Additionally, he
reported late for duties on twelve occasions since July, 2013. He would also
invite my attention to the notice dated 29 th May, 2012 for demonstrating
the past similar misconduct committed by the Respondent. He would
submit that once the serious charges of insubordination is proved, the
Labour Court could not have interfered it the quantum of punishment. In
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support of his contention, he would rely upon judgment of Division Bench
of this Court in Sarabhai M. Chemicals Vs. M. S. Ajmere and another 1.
4. Mr. Birajdar would further submit that the Labour Court has erred
in putting the burden of proving that the Respondent was gainfully
employed on the Petitioner. He would submit that said burden rested on the
shoulders of the Respondent, who did not make any averment about
absence of gainful employment either in his statement of claim or in his
affidavit of evidence. He would therefore submit that the Award passed by
the Labour Court suffers from serious jurisdictional errors warranting
interference by this Court in exercise of jurisdiction under Article 227 of the
Constitution of India.
5. Mr. Belge, learned counsel appearing for Respondent No.1 would
oppose the petition. He would submit that there is in fact no act of
insubordination committed by the Respondent as falsely sought to be
suggested. He would invite my attention to email correspondence relating
to deputation of the Respondent for interview on 9 th July, 2007 in respect
of a project for which the Respondent was admittedly not suitable. He
would submit that the Officers of the Petitioner admitted that Respondent
did not have expertise to work on the suggested project and that therefore
the resistance shown by the Respondent to appear for interviews in relation
to that project cannot amount to insubordination. He would submit that the
Labour Court has rightly held the punishment of dismissal to be
disproportionate to the proved misconduct. That the Labour Court has
already denied 50% back-wages to the Respondent which constitutes
1 1979 (Mh. L.J.) 903.
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sufficient punishment for him in respect of the alleged act of
insubordination and late attendance of duties. He would accordingly pray
for dismissal of the petition.
6. Rival contention of the parties now fall for my consideration.
7. The Respondent faced following charges in the charge-sheet cum
dismissal order dated 3rd October, 2013.:
"24(a) Willful insubordination or disobedience, whether or
not in combination with another, of any lawful and
reasonable order of a superior;
24(g) Late attendance on not less than four occasions
within a month;
24(k) disorderly or indecent behaviour on the premises of
the establishment;
24(l) Commission of any act subversive of discipline or
good behaviour on the premises of the establishment.
24(c) Refusal to accept charge sheet, order or other
communication."
8. Admittedly, no domestic inquiry was conducted and the Petitioner-
employer took the risk of dismissing the Respondent from service without
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holding the inquiry. It took a bold step of justifying its action directly
before the Labour Court by leading evidence. Petitioner led evidence before
the Labour Court. After evaluating the evidence, the Labour Court has
arrived at a conclusion that the Petitioner has proved the charges relating
to insubordination and late reporting for duties. In this regard, it would
be apposite to reproduce some of the findings recorded by the Labour Court
in the impugned order :
"1. The first party in order to discharge the burden cast
on it, has examined Deepmala Shah-Asst. Manager (HR)
at Exh.C-33. Her evidence is nothing but the replica of
written statement of the first party. She states that
services of the second came to be terminated w.e.f.
3/10/2023 by issuing him chargesheet-cum-dismissal
order. She has reiterated almost all facts constituting
alleged misconduct. The chargesheet-cum-dismissal order
which at Exh.C-6 is on two fold charges. First pertains to
act of insubordination whereas second pertains to late
attendance. It is alleged that on 3/5/2013, 4/7/2013,
21/8/2013 and 15/7/2013 the second party did not obey
the orders of his superiors. It further alleged that in the
month of July 2013 on 12 occasions the second party
reported late on duty and left early.
2. Thus, the second party, indirectly admits that he
used to come late. As there is no effective cross-
examination as regards his late coming on 12 occasions
in the month of July 2013 and also on the aspect of
insubordination except on 21/8/2013, the charges
levelled against second party of insubordination and late
coming stands proved. In so far as disorderly and
indecent behaviour is concerned, there is no cogent and
reliable evidence.
3. It is evident from the aforesaid discussion that
charges of insubordination and attending office at later
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hours and leaving it early have been proved against the
second party.
4. The first party has proved that second party
committed insubordination and he was irregular in
attending the duty."
9. Thus, it has been conclusively proved that the Respondent committed
acts of insubordination and late reporting for duties. The charge of
insubordination is in respect of failure to obey the orders of the superiors
on 3rd May, 2013, 4th July, 2013, 21st August, 2013 and 15th July, 2013. So
far as late attendance for duties is concerned, it is proved that on 12
different occasions in one month of July 2015, Respondent had reported
late for duties. It appears that Respondent has committed similar
misconduct in the past as well. Petitioner has placed on record copy of
letter dated 29th May, 2012 which alleges late reporting for duties from 1 st
March, 2012 to 19th April, 2012. In this period of about 2 months,
Respondent reported late on as may as 31 different occasions. Additionally,
he was accused of availing unscheduled breaks from March, 2012 to April,
2019 on 26 different occasions. Thus, the past record of the Respondent
does not appear to be quite clean.
10. Despite holding that the charges of insubordination and reporting
late for duties are proved, the Labour Court has proceeded to interfere in
the penalty by holding that the same is shockingly disproportionate. The
relevant findings recorded by the Labour Court in paragraphs No.21 and
22 of the impugned award are as under :
'21. Having regard to the proved misconduct, the
punishment of dismissal is surely shockingly
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disproportionate. Instead of that, if the second party as
provided under Section-11A of the I.D. Act, is punished
by award of warning as provided under Rule-25 of the
Model Standing Orders, ends of justice would meet. In
view of these reasons, I do not find any substance in the
submission of learned advocate for the first party that
punishment of dismissal from service awarded to the
second party is required to be maintained as it is.
22. Having dealt with proposed punishment and
shockingly nature of punishment awarded by the first
party, now further material question arise whether second
party is entitled for reinstatement with full backwages and
continuity of service. It is undisputed fact that second
party is in service since 2007. Considering the length of
service, certainly the second party is entitled for
reinstatement. The first party without holding enquiry
dismissed second party. Order of dismissal is not at all
warranted in view of the proved misconduct. So, in the
interest of justice it would be proper to direct
reinstatement with continuity of service from the date of
dismissal i.e. 3/10/2013."
11. In my view, the Labour Court has committed a jurisdictional error in
going into the issue of quantum and proportionality of penalty as if it was
exercising appellate jurisdiction over the wisdom of the employer. It is well
established position of law that Courts and Tribunal cannot interfere in the
quantum of penalty as the appointing authority/ employer has full
discretion in the matter of choosing a particular penalty once the charge is
held to be proved. Labour Court cannot step into the shoes of the
employer and decide as to what could be the appropriate penalty for the
misconduct which is proved in the domestic inquiry. Petitioner is a leading
IT services provider in the country and has viewed the repeated acts of
insubordination and reporting late for duties to be grave misconduct. This
subjective satisfaction recorded by the employer about gravity of
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misconduct could not have been interfered with casually by the Labour
Court by invoking the principle of proportionality. The principle of
proportionality can be invoked only when the conscious of Courts/Tribunal
is shocked after comparing the penalty with the proved misconduct.
Respondent apparently was an incalcitrant employee, who was repeatedly
reporting late for duties and was refusing to obey the orders of the
superiors. The Labourt Court cannot wear the glasses of the employer and
decide whether such conduct on the part of the employee is grave or not.
This jurisdiction and discretion vests solely with the employer. It cannot be
stated that Respondent's repeated acts of insubordination and reporting
late for duties on as many as 12 occasions within a month were worthy of
being condoned or do not constitute a grave misconduct so as to impose
the penalty of dismissal from service. What ought to have been borne in
mind by Labour Court is the nature of employment in which the concerned
worker works. In a particular establishment, reporting late for duty or not
obeying order of Superior may not strictly constitute a grave misconduct.
However, in case of an employer like the present one, repeated acts of
reporting late for duty and disobeying the orders of superiors would
undoubtedly constitute grave misconduct worthy of imposing the
punishment of dismissal from service. The Labour Court in my view has
committed a jurisdictional error in stepping into the shoes of the employer
and deciding whether the misconduct is grave or not.
12. The charge of insubordination has been proved against the
Respondent. In this regard, reliance by Mr. Birajdar on judgment of
Division Bench of this Court in Sarabhai M. Chemicals (supra) appears to
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be apposite. The Division Bench of this Court has held in paragraphs
No.15 to 18 of the Judgment as under :
"15. Now, there can hardly be any dispute with regard to the
principles which have to be considered while determining the
validity of the award made by a Labour Court in a case where the
dismissal order made by an employer is made the subject-matter of a
reference before a Labour Court. As observed in Anand Bazar
Patrika's case, if the enquiry has been properly made and the order
of punishment dismissing the employee is not mala fide, then the
Industrial Tribunal cannot interfere with the action of the
management, but it is also well established that the action of the
management is subject to review and scrutiny where the matter is
referred to Labour Court and if the workman succeeds in showing
that the order of dismissal is mala fide or that it was made to
victimize the workman for his trade union activities, the order of
dismissal made by the employer can be interfered with by the Labour
Court. In addition to such scrutiny of the action of the employer,
there is the further jurisdiction of the Labour Court to go into the
question as to whether the punishment awarded by the employer is
such that no reasonable employer could have imposed that
punishment in like circumstances unless it served some other
purpose. The Supreme Court in Hind Construction and Engineering
Co. Ltd. v. Their Workmen [1965 I LLJ 462 : AIR 1965 SC 917.] , has
put the position of law as follows:--
"It is now settled law that the tribunal is not to
examine the finding or the quantum of punishment
because the whole of the dispute is not really open
before the tribunal as it is ordinarily before a Court of
appeal. The tribunal's powers have been stated by this
Court in a large number of cases and it has been
ruled that the tribunal can only interfere if the
conduct of the employer shows lack of bona fides or
victimization of employee or employees or unfair
labour practice. The tribunal may in a strong case
interfere with a basic error on a point of fact or a
perverse finding, but it cannot substitute its own
appraisal of the evidence for that of the officer
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conducting the domestic enquiry though it may
interfere where the principles of natural justice or fair
play have not been followed or where the enquiry is
so perverted in its procedure as to amount to no
enquiry at all. In respect of punishment it has been
ruled that the award of punishment for misconduct
under the standing orders, if any, is a matter for the
management to decide and if there is any justification
for the punishment imposed, the tribunal should not
interfere. The tribunal is not required to consider the
propriety or adequacy of the punishment or whether
it is excessive or too severe. But where the
punishment is shockingly disproportionate, regard
being had to the particular conduct and the pan
record or is such, as no reasonable employer would
ever impose in like circumstances, the tribunal may
treat the imposition of such punishment as itself
showing victimization or unfair labour practice."
16. The validity and the legality of the award made by the Labour
Court will have to be tested on the touchstone of the principles
enunciated by the Supreme Court in the Hind Construction &
Engineering Co.'s case and the Anand Bazar Patrika's case. Now,
before we go to that part of the award which deals with the order of
dismissal, we consider it necessary to point out the apparent error
into which the Labour Court has fallen when it boldly proceeded to
lay down a proposition of law that a single act of insubordination
will not amount to misconduct in respect of which disciplinary
proceedings could be taken against a workman. In all fairness to the
learned Counsel for the workman, it must be said that this part of
the observations made by the Labour Court was not supported by
him. However, since the learned Judge of the Labour Court
purported to lay down certain propositions basing them on a
reported decision, we consider it necessary to deal with that
question. The charge made against the workman was one of
insubordination and indiscipline, both based on his conduct of
refusing to obey what had been found to be lawful orders of the
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superior officer. The conduct of the workman consisted of declining
to type out delivery challans which was a part of his duty and it has
been so found even by the Labour Court. There is, therefore, no
difficulty in holding that he had disobeyed a lawful order. If there
was no valid reason justifying such conduct, the disobedience would
also amount to an act of indiscipline.
17. Now it is difficult to see why such disobedience will not amount
to insubordination. The learned Counsel appearing on behalf of the
workman wanted to draw a distinction between disobedience and
insubordination and it was contended before us that unless there is a
flagrant disobedience or rebellious disobedience, the conduct of a
workman cannot amount to insubordination. In our view, this
argument is plainly contrary to the very concept of insubordination.
A subordinate officer or employee is duty bound to obey a lawful
order of a superior officer. That such is the duty of a subordinate
officer is not required to be stated in so many words in any list of
duties. The concept of obedience is implicit in the fact that the
officer receiving the order is subordinate to the officer giving the
order and a lawful order has to be obeyed, unless there is good
justification for not complying with such a lawful order. It is this
conduct of declining to obey an order which not only results in
disobedience, but the conduct of the workman would also amount to
insubordination. The Concise Oxford Dictionary gives the meaning of
the word 'insubordinate' as "Disobedient, rebellious". The two
meanings given by the dictionary do not mean that only a rebellious
conduct would amount to insubordination, but even disobedient
conduct would amount to insubordination. The Random House
Dictionary gives the meaning of 'insubordinate' as follows: "Not
submitting to authority; disobedient, one who is insubordinate"
These meanings would indicate that any person who is disobedient
becomes insubordinate and his conduct amounts to insubordination.
Therefore, where a workman disobeys a lawful order, he can be said
to be guilty of insubordination and it needs hardly to be stated that a
misconduct of disobedience and insubordination would also amount
to indiscipline. We have, therefore, no difficulty in holding on the
finding recorded by the Labour Court that it was a part of the
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workman's duty to type the delivery challans and his declining to do
so would clearly amount to insubordination and indiscipline.
18. It is difficult for us to appreciate the view taken by the Labour
Court that there must be a series of disobedient conduct or acts of
indiscipline before a workman can be charged with insubordination
or indiscipline. As already pointed out, the Labour Court has
unambiguously stated in the award that one single act of
disobedience will not amount to an act of insubordination or an act
of indiscipline. If each act of disobedience would result in act of
insubordination and indiscipline, then it is difficult to see what
warrant there is for the proposition which is being laid down by the
learned Judge that a workman cannot be charged for
insubordination in respect of one act."
13. In my view, the Labour Court has grossly erred in recording a casual
finding of punishment being disproportionate to the proved misconduct by
substituting itself in place of the employer, as if it was exercising appellate
jurisdiction over the wisdom of the employer in choosing the exact nature
of penalty. The Labour Court has merely issued a warning to the
Respondent directing him to be punctual and not to commit an act which
would constitute insubordination. Such direction by the Labour Court
would also be beyond its jurisdiction.
14. As if the jurisdictional error committed by the Labour Court in
interfering in the quantum of punishment was not sufficient, it has recorded
a preposterous finding that the burden of proving absence of gainful
employment was on the Petitioner-employer. Recording of such finding by
the Labour Court is against basic notions of Labour and Industrial
jurisprudence. The initial burden is on the workman to prove that he is not
gainfully employed. The workman atleast needs to raise an averment and
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make statement in affidavit of evidence that he is not gainfully employed. It
is only after evidence is led by the workman that he is not gainfully
employed that the burden shifts on the employer to produce evidence to
demonstrate that the workman has actually drawn wages during the period
of this communication. In the present case, the Respondent admittedly did
not aver in the statement of claim or in the affidavit of evidence that he
was not gainfully employed. In any case, since the direction for
reinstatement itself is found invalid, it is not necessary to delve deeper
into the further erroneous direction of Labour Court for payment of
backwages.
15. After considering the overall conspectus of the case, impugned
award passed by the Labour Court is indefensible and liable to be set aside.
16. The Petition accordingly succeeds. Award dated 23 rd March, 2017
passed by the Labour Court in Reference (IDA) No.40 of 2015 is set aside.
17. Writ Petition is allowed in above terms. Rule is made absolute. There
shall be no order as to costs.
18. In view of disposal of the Writ Petition, the Interim Application also
stands disposed.
(SANDEEP V. MARNE, J.)
