D.N.PATEL,J. - (1.) THIS writ petition has been preferred by the petitioner under Article 226 of the Constitution of India against an award passed by the learned Labour Court, Jamshedpur dated 28th August, 2002 in Reference Case No. 08 of 1989, whereby the reference was dismissed and the action initiated by the Management for dismissal of the present petitioner for misconduct was upheld.
(2.) LEARNED Counsel for the petitioner has vehemently submitted that the quantum of punishment awarded by the Management is disproportionate, looking to the nature of the misconduct. It is unreasonably excessive, looking to the charge -sheet, which is at Annexure -2 to the memo of the present petition. Highest allegation levelled against the present petitioner is, use of abusive language and therefore, the services of the present petitioner has been terminated upon holding an enquiry. It is submitted by the learned Counsel for the petitioner that the language alleged to have been used by the petitioner, cannot be labelled, as abusive language or a derogatory language. This aspect of the matter has not been properly appreciated by the Labour Court. It is also submitted by the learned Counsel for the petitioner that the officer, who has issued the charge -sheet, is not competent enough to issue the charge -sheet against the present petitioner as the delegation of the power to an officer, who has issued charge -sheet has never been approved by the Management. The whole case is based upon no evidence and the past records of issuance of three charge -sheets have also not been proved. This aspect of the matter has not been considered by the Labour Court and therefore, there is an error apparent on the face of the record and therefore, the award dated 28th of August, 2002 passed by the Labour Court, Jamshedpur in Reference Case No. 08 of 1989, deserves to be quashed and set aside. I have heard learned Counsel for the respondents, who has submitted that looking to the nature of the misconduct, quantum of punishment is absolutely adequate, just, proper and equitable. The abusive language frequently used by the petitioner addressed to higher officer, in presence of other employees, can not be allowed at a working place. Discipline ought to be maintained. On 1st of August, 1986 and as well as 2nd of August, 1986, as stated in the charge -sheet, the petitioner has behaved indecently, started shouting at the Supervisors and Officers of the Management and threatened them with dire consequences. Even on 2nd August, 1986, similar was the behaviour. I has also been submitted by the learned Counsel for the respondents that charge -sheet was given by the Production Manager under whom the present petitioner was working. Enquiry was held and a report was submitted by the Enquiry Officer which is at Annexure -5 to the memo of the present petition. The Management examined the witnesses and charges levelled against the present petitioner were proved. Thereafter, the General Manager of the respondents has taken a decision for termination of the services of the present petitioner. Method of holding an enquiry or legality of holding an enquiry has been upheld by the Labour Court and therefore, the only question left out is the challenge about the quantum of punishment. Learned Counsel for the respondent has relied upon a decision rendered by the Hon'ble Supreme Court in the case of Mahindra and Mahindra Ltd. v. N.B. Narawade as reported in : (2005)ILLJ1129SC . Learned Counsel for the respondents submitted that the punishment awarded by the Management cannot be not labelled as unreasonable and excessive. Punishment awarded cannot be said to be grossly disproportionate to nature of the misconduct. This aspect of the matter has been correctly appreciated by the Labour Court. Therefore, the petition deserves to be dismissed.
(3.) HAVING heard the learned Counsel for the both sides and looking to the facts and circumstances of the case, I see no reason to entertain this petition, mainly, for the following facts and reasons: (i) it appears that the present petitioner was given a charge -sheet by the Production Manager, dated 4th August, 1986. The charges levelled against the present petitioner which reads as under: (a) 'On 1.8.86 at above 8.45 A.M. you were handed over a caution note for refusing to work on machines allotted to you, under ref No. M. Pr. V&VIII;/82/8 dated 1.8.86, in the office of the Asst. Supdt., Prod. V A by Mr. P Mitra, F. O. After receiving the latter you behaved indecently and started shouting at your Supervisors and Officers present there and threatened them with dire consequences. (b) On 2.8.1986 at around 6.15 AM, you went to Mr. TRK Sinha, Supdt, Production in his office in an agitated mood and demanded to know from him in an indecent manner as to why you were asked to operate Drive Shaft Dog Teeth and Helical Gear shaping and spline milling machines. On Mr. Sinha's reply lost your temper and started shouting at him and threatened by saying 'Aap loge bohut galat kam kar rahe hai, Yeh aapko aur Thakur Saheb ko bohut mahanga parega - Jan Mal se vi mahange parega'. Then again at about 9 A.M. when Mr. Sinha was passing through Gear Shaft Line, you stopped him again behaved indecently with him and started shouting at the top of your voice saying that 'Aap log sirf line mai ghoomne ke liye Supdt., bane hai Aapko hame yahi per batana parega ki waha se material mere machine per kon dega.' (ii) it appears that, thereafter, an Enquiry Officer was appointed and enquiry was conducted. The Management has examined their witnesses and looking to the evidences before the Enquiry Officer and looking to the report given by the Enquiry Officer which is dated 18th July, 1986 (Annexure -5 to the memo of the present petition), the charges levelled against the present petitioner were proved. There is also reference of habitual indiscipline, riotous behaviour and indecent behaviour which has a direct nexus and bearing upon the degrees of discipline, maintained by the respondent -management. (iii) it appears that thereafter, industrial dispute was raised and a reference was made by an Appropriate Government and a Reference Case No. 08 of 1989 was instituted. Looking to the award passed by the Labour Court, it appears that the Labour Court has properly appreciated the facts of the present case and the enquiry report. The method of the holding enquiry has also been upheld by the Labour Court, Jamshedpur. So far as the quantum of punishment is concerned, no error has been committed by the Labour Court, Jamshedpur in holding that the quantum of punishment cannot be labelled as unreasonably, excessive or grossly disproportionate to the nature of the misconduct. (iv) it appears that the present petitioner has misbehaved grossly as stated in the enquiry report given by the Enquiry Officer. When delinquent was given work, there was no earthly reason for the workman to threaten and behave indecently to his supervisors and officers and threatening them to meet with dire consequences On 1st of August, 1986 and even on 2nd of August, 1986, petitioner was in agitated mood and he had given a threat and warning that he will see who is sending material to him at the machine which was operated by him. Shouting and threatening in presence of other officers to a particular officer cannot be tolerated by the disciplined Management. It ought to have been kept in mind that workman must behave decently and if he has got any grievance, he could have ventilated it by taking appropriate recourse under the law. Use of abusive language cannot be tolerated. Looking to the case of the respondents -Management, even otherwise, also there are as many as three times this petitioner has repeated such types of behaviour. Initially, lenient view was taken by the Management by awarding lesser punishment. This has been highlighted in the award passed by the Labour Court. (v) It appears that on 16th of January 1980, he was charge -sheeted for irregular attendance and having found guilty, punishment of warning was only given. Secondly, on 10th February, 1982, he was served with a charge -sheet for a misconduct of causing damages to the work in process. Enquiry was conducted and lesser punishment was awarded. Again on 20th of July, 1985, a charge -sheet was issued, to the present petitioner for negligence in performing duties or causing damages to the work process and production process. He was found guilty in domestic enquiry and was kept under suspension for three days from 17th April 1986 to 19th April 1986. Again in the very same year i.e. on 1st of August 1986 and on 2nd August 1986, he has committed the misconduct for which he has been awarded punishment for dismissal. Every time, a lenient view can not be taken by the Management, otherwise, it will be a misplaced sympathy. Looking to the decision rendered by the Hon'ble Supreme Court in a case of Mahindra and Mahindra Ltd. v. N.B. Narawade as reported in : (2005)ILLJ1129SC , it has been observed in para 20 which reads as under: It is no doubt true that after introduction of Section 11A 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 11A 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 man 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 11A 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. and New Shorrock Mills 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 civilized 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 indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove. (Emphasis Supplied) (vi) learned Counsel for the petitioner has submitted that the person who has issued notice could not have been given a charge -sheet to the present petitioner and this aspect of the matter has not been properly appreciated by the Labour Court. This contention is not accepted by this Court, firstly for the reasons that the present petitioner was working under the Production Manager who has issued the charge -sheet. That officer knows what has happened, in his own unit. Secondly, for the reason that an officer, who has issued a charge -sheet is a high ranking officer than the petitioner. Thirdly, for the reason that as per the Management, there was already a delegation of power. Fourthly, for the reason that even otherwise also, looking to the nature of the post of the person who has issued the charge -sheet, it appears that he is a Production Manager. Fifthly, for the reason that issuance of charge -sheet by the Management is nothing, but, a rough sketch of the allegations, levelled against the present petitioner by the Management. Suffice it will be for the purpose of issuing charge -sheet so long as it is not given by the officer of the rank below than that of the petitioner. If any officer is of a high rank than that of the petitioner, I see no reason to quash the whole enquiry procedure and award passed by the Lower Court and thereby to brush aside the whole Management evidence. Charge -sheet is a rough sketch of the whole incident. It is not an evidence itself and sixthly for the reason that no prejudice has been caused to the present petitioner by issuance of charge -sheet by the Production Manager. (viii) so far as the quantum of punishment is concerned, no error has been committed by Labour Court, Jamshedpur in holding that there is no grossly disproportionate appointment. Under Section 11A of Industrial Disputes Act, Labour Court can interfere with punishment of dismissal only when it is shockingly disproportionate to the gravity of misconduct or when punishment disturbs the conscience of the court or where there is existence of any mitigating circumstances which require reduction of quantum of punishment. In absence of any such circumstances, sympathy alone, cannot be a ground for exercise of powers under Section 11A of Industrial Disputes Act. This aspect of the law has been properly appreciated by the Labour Court, Jamshedpur while dismissing Reference Case No. 08 of 1989. I see no reason to take any deviation from the conclusions arrived at the Labour Court, Jamshedpur in Reference Case No. 08 of 1989. ;