Sukhbir Singh vs International Amusement Limited
2006 Latest Caselaw 1813 Del

JUDGMENT

Shiv Narayan Dhingra, J.

Page 3284

1. By this writ petition, petitioner has challenged the validity of Award dated 30.1.2003 passed by Labour Court VI, Karkardooma, Delhi wherein it is held that the workman concerned has failed to prove on record that termination of his services by the management was illegal and/or unjustified, therefore, he was not entitled to grant of any relief whatsoever.

2. Briefly the facts relevant for the disposal of this writ petition are that petitioner was terminated by the respondent for misconduct after a finding Page 3285 given in the domestic enquiry that petitioner was guilty of misconduct. Petitioner raised an industrial dispute about his dismissal which was referred for adjudication to the Labour Court in the following terms:

Whether the dismissal of services of Shri Sukhbir Singh is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect ?

3. The charges leveled against the petitioner by the management were as under:

(i) On 10th February, 1988, at about 11.00 hrs. you called one Mr. Hawa Singh, a person who was kept on trial basis in the nursery and manhandled him and pushed him out of the premises immediately.

(ii) You threatened Mr. H.S. Pawar, supervisor house keeping, not to keep any worker, otherwise he would face dire consequences and with the intention to cause and create disturbance and indiscipline in the establishment

(iii) that act on your part amounts to commission of an act subversive of discipline and good behavior in the premises of the establishment and an act of willful insubordination. these acts are serious misconduct under the provisions of the Delhi shops and establishment rules applicable to the establishment. Explain why disciplinary action should not be taken against you. Your reply should reach the undersigned with 48 hours.

(iv) You are hereby suspended from the services with immediate effect till pending disciplinary action.

4. When charge sheet was sought to be served upon the petitioner, he refused to accept the same and this was considered another misconduct and another charge sheet on this cause was also issued to him. Labour Court after recording evidence of both the parties came to the conclusion that the enquiry was conducted in a fair manner. The workman concerned cross examined the witnesses and Enquiry Officer considered all the evidence adduced before it. After holding that domestic enquiry was held in a fair manner, the Tribunal came to the conclusion that the termination of the workman was not illegal.

5. The petitioner has challenged the order of the Tribunal on the ground that the incident dated 10.2.1988 about which charge sheet was issued to him related to the union activities and was carried out for the benefit of the workmen. There was no personal motive of the petitioner. This goes to show that in fact petitioner admits the correctness of the allegations even in the writ petition.

6. The petitioner and his other co-workmen may have a right of striking work or peaceful protest but no law gives them liberty to man handle other workmen or to threaten the officers of the management, to abuse or gherao the management. In the name of the union activity, misconduct cannot be excused nor can be ignored. Trade union laws do not give liberty to the workman to take law into their own hands or to act in an uncivilized manner, forcibly preventing willing workers from from entering into the premises or to forcibly detaining persons inside premises by gherao and not allowing persons to come outside. These activities cannot be considered as legitimate union Page 3286 activities and no fault can be found with the management for issuing charge sheet for these activities.

7. The other ground taken by the petitioner is that Hawa Singh, who supported the management during the enquiry, appeared and stated before the Labour Court that nothing was done to him. But still Labour Court did not given benefit of doubt to the petitioner. This ground is not available to the petitioner. Record shows that Hawa Singh, in his cross examination, admitted the statement which he made before the Enquiry Officer involving the petitioner in the charges. If a witness become hostile at a later stage, Court after weighing the credibility of later statement can discard that portion of the evidence which is contrary to his earlier statement and can believe and rely upon the portion which confirmed to his earlier statement.

8. If the indiscipline, abuses, threat and forcibly stopping other employees is tolerated by a management, such a management can not run the establishment and will have no authority over the employees. Indecent, or uncivilised behavior kill congeniality in an organisation. The indiscipline and the misconduct of the petitioner stood proved during the enquiry, it was for the management to consider the appropriate punishment. The punishment of dismissal imposed on the petitioner cannot be considered to be disproportionate or shocking to the conscious of the Court. Court should not interfere in administrative decisions unless grave injustice is shown to have been done.

9. In Hombe Gowda Educational Trust and Anr. v. State of Karnataka and Ors. 2006 SCC (L&S) 133 Supreme Court held:

12. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed,(para 23)

In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate it was held : (SCC p. 499, paras 30-32).

30. Furthermore, it it trite, the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, must act within the four corners thereof. The Industrial Courts would not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. Although its jurisdiction is wide but the same must be applied in terms of the provisions of the statute and no other.

31.If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on an irrational or Page 3287 extraneous factor and certainly not on a compassionate ground.

32. In Regional Manager, Rajasthan SRTC v. Sohan Lal it has been held that it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless it is wholly disproportionate to the misconduct proved. Such is not the case herein. In the facts and circumstances of the case and having regard to the past conduct of the respondent as also his conduct during the domestic enquiry proceedings, we cannot say that the quantum of punishment imposed upon the respondent was wholly disproportionate to his act of misconduct or otherwise arbitrary."(para 24)

In M.P. Electricity Board v. Jagdish Chandra Sharma this Court held: (SCC p.408, para 9)

9. In the case on hand, the employee has been found guilty of hitting and injuring his superior officer at the workplace, obviously in the presence of other employees. This clearly amounted to breach of discipline in the organization. Discipline at the workplace in an organization like the employer herein, is the sine qua non for the efficient working of the organization. When an employee breaches such discipline and the employer terminates his service, it is not open to a Labour Court or an Industrial Tribunal to take the view that the punishment awarded is shockingly disproportionate to the charge proved. We have, already referred to the views of this Court. To quote Jack Chan, discipline is a form of civilly responsible behavior which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large.

Obviously this idea is more relevant in considering the working of an organization like the employer herein or an industrial undertaking. Obedience to authority in a workplace is not slavery. It is not violative of one's natural rights. It is essential for the prosperity of the organization as well as that of its employees. When in such a situation, a punishment of termination is awarded for hitting and injuring a superior officer supervising the work of the employee, with no extenuating circumstance established, it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate. The Labour Court and the High Court in this case totally misdirected themselves while exercising their jurisdiction. The Industrial Court made the correct approach and came to the right conclusion.

In Divisional Controller KSRTC (NWKRTC) v. A.T. Mane this Court held: (SCC p.258, para 9).

9. From the above it is clear that once a domestic tribunal based on evidence comes to a particular conclusion, normally it is not open to the Page 3288 Appellate Tribunals and courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. In the present case, there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that evidence and found the respondent guilty. But the courts below misdirected themselves in insisting on the evidence of the ticket less passenger to reject the said finding which in our opinion, as held by this Court in the case of Rattan Singh State of Harayana v. Rattan Singh is not a condition precedent. We may herein note that the judgment of this Court in Rattan Singh has since been followed by this Court in Devendra Swamy v. Karnataka SRTC

It was further held:(SCC p. 259, para 12)

12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal. (para 27)

This Court has come a long way from its earlier viewpoints. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach to the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed how discipline at th workplace/industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline; with impunity. Our country is governed by rule law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employees unless an appropriate case is made out therefore. The Tribunal being interior to this Court was bound to follow the decisions of this Court which are applicable to the facts of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same. (para 30)

10. In L.K. Verma v. HMT Limited 2006 SCC 278, Supreme Court upheld the order of High Court dismissing the writ petition of the petitioner wherein the Page 3289 petitioner, a safety officer, had committed misconduct of abusing his inquiry officer and was dismissed from service.

11. In 2005 SCC (L&S) 567 Damoh Panna Sagar Rural Regional Bank and Anr. v. Munna Lal Jain, Supreme Court held:

In B.C. Chaturvedi v. Union of India it was observed:(SCC p.762, para 18).

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. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mold 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."(para 12)

In Union of India v. G. Ganayutham this Court summed up the position relating to proportionality in paras 31 and 32, which read as follows: (SCC pp.478-80)

31. The current position of proportionality in administrative law in England and India can be summarized as follows:

(1)To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternative open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury test.

(2)The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational-in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into Page 3290 English administrative law in future is not ruled out. These are the CCSU 1985 AC 374 : (1984) 3 All ER 935(HL) principles.

(3)(a) As per Bugdaycay R. v. Secy. Of State for Home Deptt. ex p Bugdaycay 1987 AC 514 : (1987) 1 All ER 940 : (1987) 2 WLR 606 (HL), Brind (1991) 1 AC 696:(1991) 1 All ER 720 : (1991) 2 WLR 588(HL) and Smith R. v. Ministry of defense, ex p Smith (1996) 1 All ER 257:1996 QB 517: (1996) 2 WLR 305(CA) as long as the convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done:

3(b) If the convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

(4)(a)The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.

4(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.

32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of 'proportionality'. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to ' irrationality', there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in 'outrageous' defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain 'Ranjit Thakur v. Union of India

Page 3291

The common thread running through in all decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case (1948) 1 KB 223 : (1947) 2 All ER 680 (CA) the court would not go into the correctness of the choice made by the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.

12. Considering the above legal position the order of Tribunal of refusing to interfere in the punishment awarded to petitioner is perfectly legal. Tribunal rightly did not interfere in the findings of enquiry officer. Petitioner has failed to show that findings were either perverse or based on no evidence.

13. Accordingly, I find no merits in the writ petition. The the same is hereby dismissed. No orders as to costs.