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Judgment
K. Lahiri, A.C.J.
M/s. Hoolungooree Tea Estate, the Petitioner, is owned by Hoolungooree Tea Company Limited. The Petitioner questions the validity of a part of the Award made by the Presiding Officer, Labour Court, Dibrugarh in Reference Case No. 2/83. The Presiding Officer, Labour Court held that the management had held "a fair enquiry proceeding" against workman and the workman was liable to be penalised. But, while up-holding the case of the management that the workman Harendra was liable to be penalised, the Presiding Officer, Labour Court, in exercise of the power u/s 11(A) of the Industrial Disputes Act, 1947, set aside the order of dismissal and instead directed that the workman should pay fine of Rs. 1000/- which should go to Shri Gopal Singh Kalandi, the workman assaulted upon. In short, the Labour Court having set aside the order of dismissal imposed the penalty of fine of Rs. 1000/- on Harendra Dutta on consideration of some admitted facts and circumstances of the case. The Petitioner questions the action of the Presiding Officer, Labour Court in altering the penalty imposed by the management.
Before stating the facts of the case we would like to point out certain admitted position:
(a) That the workman, who has been reinstated by the Labour Court in exercise of power u/s 11-A of the Industrial Disputes Act, 1947 was just an ordinary Hazira Mohurrer in Khatisona Division of "the Management".
(b) That the order of dismissal was rendered after the workman had rendered long 20 years of service.
(c) That the workman has a large family to look after.
(d) There is no contest in the petition that the findings of the Labour Court that if the order of dismissal was allowed to be carried out, the family of the workman would suffer irreparable loss.
(e) There is no contest that the Labour Court in exercise of power u/s 11-A of the Act had power and jurisdiction to set aside the order of dismissal and to award a lesser punishment.
(f) That the case of the workman was represented by the Assam Karmachari Sangha. In other words, the case of the workman was espoused by the Union, which had the right to represent the concerned workman before the authority. It is thus seen that the Union representing the workman of the Tea Estate espoused the cause of Harendra in the proceeding before the Labour Court.
The facts necessary for disposal of the case are that on 26.6.82 at about 9 P.M. Harendra assaulted Sri Gopal Singh Kalandi, a night Chowkidar of Khatisena Division, while the latter was on duty. Indeed, it was violation of one of the Clauses of Standing Order and it amounted to "misconduct". The workman was served with show-cause notice, proceedings were held and although Harendra took up various plea they were turned down by the Management, which found him guilty of the charge and awarded the maximum punishment of dismissal. It may be stated here at this stage that Harendra, the workman concerned was found guilty of breach of Clause 10(A)(7) of "the Standing Order" and was awarded maximum punishment provided under the said Standing Order. The Union took up the case of the workman and raised an industrial dispute. It is needless to say that an Industrial dispute as definde in the Industrial Disputes Act is a dispute or difference between the employer and the employees or between employees and the workmen or between the workmen and workmen, which is connected with the employment or non-employment or terms of employment etc. It has been fairly conceded by Mr. S.K. Home Choudhury, learned Counsel for the Petitioner that after the workman was dismissed, the Union raised an industrial dispute. In the instant case the dispute is between the workmen represented by the Union and the Management. No other party was involved in it. Under these circumstances, we find that the present dispute was espoused by the Union representing the workmen and the dispute was between the employer and the workmen. After the industrial dispute was raised, the Govt. referred the matter to the Labour Court u/s 10 of "the Act". Two issues were framed by the Labour Court: First, whether the Management was justified in dismissing the workman, secondly, whether the workman was entitled to reinstatements. Learned Tribunal reached the conclusion that there was no defect in enquiry proceeding. It was based on evidence, the Enquiry officer had applied his mind and the findings reached by the Enquiry Officer that the Petitioner workman had committed misconduct, was justified. However, while considering the question of punishment, the Labour Court set aside the order of dismissal and directed reinstatement of the workman on payment of a fine of Rs. 1000/- to the workman Gopal Singh Kalindi, who was assaulted by Harendra, and the workmen was directed to pay the fine within one month from the date of making the award.
Mr. Homechoudhury, learned Counsel for the Petitioner has submitted that although the Petitioner had served the tea estate for about 20 years and notwithstanding the fact that the workman had large family and although the order or dismissal, allowed to be carried out would affect the workman and the members of his family, the order is not justified in as much as it was "an arbitrary order".
Learned Counsel submits that in view of the assault made on the Nigh Chowkidar, there was an agitation and the workmen thrcatened to go on strike if Harendra was not removed from the venue. We reiterate that Harendra was working at Khatisona division of the Tea Estate Mr. Hom Choudhury does not contest that the Management has several Divisions and Khatisona Division is one of the Divisions. It appears that at all relevant time when the Nigh Chowkidar was assaulted the workmen desired that Harendra should be removed from that Division to another Division and no further. Further, we find that the Union representing the workmen espoused the cause of Harendra, raised the dispute before the Management, agitated before the Government and obtained the Reference. Further, they took the trouble of contesting his case and, in fact, the dispute was not between the workman and the Management but the Management and the Union. There is no challenge that the Union had locus standi to espouse the cause of Harendra in the industrial dispute.
Since the provisions of Section 11-A were brought into force their Lordships of the Supreme Court have handed down a number of decisions out-lining the ambit of jurisdiction of the High Court to interfere with the discretion exercised by the Labour Courts and Tribunals u/s 11A of ''the Act''. We do not burden with all the decisions but merely refer two of the recent decisions, namely Management of Management of Hindustan Machine Tools Ltd., Bangalore Vs. Mohd. Usman and Another, and Jaswant Singh v. Pepsu Roadways Transport Corporation AIR 1984 SC 335 : 1984 Lab. I.C. 7.
It may be recalled that in Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, Their Lordships, while considering the Tribunal''s power to interfere with the management''s decision to dismiss, discharge or terminate the service of workmen, inter alia, observed that in cases of dismissal on misconduct the Tribunal or the Labour Court could not act is a Court of appeal, substitute its own judgment for that of the management, and Tribunal/Labour Court could interfere only when there was want of good faith or it was a case of victimisation or unfair labour practice etc. on the part of the management. However, the International Labour Organisation in its "Recommendation No. 119" concerning "Termination of employment at the initiative of the Employer" adopted in June, 1963, endorsed that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination among others, to a neutral body such as an arbitrator or an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the order of termination and other circumstances relating to the case and to reader a decision on the justification of the termination. The International Labour Organisation further recommended that the neutral body should be empowered, if it found that the termination of employment was unjustified, to order that the worker concerned unless reinstated with unpaid wages, should be paid adequate compensation or afforded some other relief. In accordance with these recommendations, it was considered that the Tribunal''s power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal or Labour Court should have the power in cases wherever necessary to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions if any, as it thinks fit or give such other reliefs to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the case may require.
For this purpose a new Section which structured which was find in Section 11A of "the Act" introduced by Industrial Dispute. It may be stated here that the power of awarding punishment has been conferred by Parliament on the Labour Court. Tribunal and no other authority. Further, the power can be exercised by these authorities only when they are satisfied that a lesser punishment was called for on the facts of the case. In the management of the Management of Hindustan Machine Tools Ltd., Bangalore Vs. Mohd. Usman and Another, their Lordships held as under:
In this appeal the only question raised is whether the Labour Court was justified in reducing the punishment awarded by the Management for the misconduct committed by the first Respondent. The Management had imposed the punishment of termination of service of the first Respondent. The Labour Court in exercise of the power conferred upon it by Section 11A of the Industrial Disputes Act reduced the punishment by setting aside the punishment of termination of service and in its place imposed the punishment of stoppage of the increments for two years. Section 11A confers power in the Labour Court to evaluate the severity of misconduct and to assess whether punishment imposed by the employer is commensurate with the gravity of misconduct. This power is specifically conferred on the Labour Court u/s 11-A. If the Labour Court after evaluating the gravity of misconduct held that punishment of termination of service is disproportionately heavy in relation to misconduct and exercised its discretion, this Court in the absence of any important legal principal would not undertake to re-examine the question of adequacy of material for interference by Labour Court. We are, therefore, disinclined to interfere with the order passed by the Labour Court. Accordingly, the appeal fails and is dismissed with costs quantified at Rs. 2,500/-.
It is seen that their Lordship have held that Section 11A confers power on the Labour Court to evaluate the severity of misconduct and to assess whether punishment imposed by the employer is commensurate with the gravity of misconduct. Their Lordships further observed that this power was specifically conferred on the Labour Court. Their Lordships further held that when a Labour Court after evaluating the gravity of misconduct found that the punishment of termination of service was disproportionately heavy in relation to misconduct and exercised its discretion, the Supreme Court in the absence of any, important legal principle would net undertake to re-examine the question of adequacy or inadequacy of material for interference by the Labour Court. As such, their Lordships did not interfere with the matter as the Labour Court had exercised its discretion on consideration of the material facts and circumstances.
In the instant case the Labour Court evaluated the nature of breach, namely, assault on another workman of the consequence of the order of termination. It surely considered the question that the can was espoused by the Union representing the workmen of the Management. The Labour Court must have considered that the dispute was between the Management and the Union representing the workmen of the Division. The evaluation as to the severity of misconduct and the assessment made as to whether the order of dismissal was heavy or not, was certainly within the jurisdiction of the Labour Court. It is a finding of fact. The findings reached cannot be said to be perverse. Any reasonable person instructed in law could reach such a conclusion. The only contention of Mr. Homchoudhury is that the Labour Court left out of consideration the fact that there was an agitation in the mind of the workmen when the incident happened and they wanted that the workman should be "removed form the venue of work". The agitation was just a temporary one. It subsided and, therefore, the Union took up the cause of the workman and fought against the Management. Even when the atmosphere was charged the workmen did not desire termination of the services of Manindra but being agitated they desired that Harendra should be taken from the Division and posted to another Division. It was quit natural for the workmen to think like that. Further, the findings reached that the punishment was disproportionate and as the workman had served the management for 21 years and that he had a large family to maintain are surely findings of fact and this Court in exercise of power under Article 226 of the Constitution should be most reluctant to interfere with such findings.
Let us consider another decision of the Supreme Court. Jaswant Singh Vs. Pepsu Roadways Transport Corporation and Another, a driver of a passenger bus was found guilty of taking liquor while on duty. The Labour Court considered that it was his first offence and on that count altered the order of dismissal and reinstated him. The order was set aside by the High Court in exercise of power under Article 226 of the Constitution. The Supreme Court set aside the order of the High Court, reported in (1981) 58 FJR 254 (P and H), and, (sic) the order of the Labour Court. Even such misconduct was condoned by the Labour Court as it was the first offence had the same was accepted by the Supreme Court. How is it accessible to over-look the object of the introduction of Section 11A of ''the Act'' ? The impact of termination of service of a said-earner is too severe not only for the workman but also as the members of his family. It is a question of bread, life and death of a person. In every law the first offender is treated (sic)siently. For just one omission or commission should his service as terminated ? However, if offence is grave so much so that re-instatement of the workman may create dead-lock in the management or may create absolute and total resentment or may be cases where the impact of the act or omission accounting to misconduct resulted in loss of human lives or properties or cases where the offence is heinous, the question re-instatement may not arise. These cases stand on a different (sic)ting altogether but in the instant case, what we find is that was the first misconduct of the workman. There is no allegation of earlier he had committed similar wrong. Further, by imposing heavy cost of Rs. 1000/- and awarding the same as compensation the person assaulted, the aggrieved person was duly compensated. The offence was just an incident which is not uncommon, any rate, it was not a heinous offence or a conduct which serious and lasting consequence. As such, the alteration the punishment to that of the fine was adequate punishment the affected workman who was assaulted also got fair sensation. It is too much, in our opinion, to end the career workman and terminate his service after he had served long 20(sic) with his employer. We find that the offence was none too (sic) it was the first offence of the workman, that the workman is given over 20 years of service to the management and he has a large family to maintain and the order of dismissal would have totally wrecked the life of the workman in question.
Under the circumstance, we find that the findings reached by the Labour Court is rational and justified. The principle set out by their Lordships in the cases alluded also support the decision of the Labour Court.
12A. For the foregoing reasons, we find that there is no merit in the application. Accordingly, it is dismissed in limine.