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Thursday, April 30, 2015

Since, the matter has been pending before various courts for the last 14 years, we direct the appellant-Company to reinstate the workman within 4 weeks from the date of receipt of the copy of this judgment and compute 50% back wages payable to him from the date of his dismissal from the service till the date of passing of the Award, as per the periodical revision of the same and pay full salary from the date of the passing of the Award till the date of reinstatement.


                         IN THE SUPREME COURT OF INDIA
                          CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.4436 OF 2010



NICHOLAS PIRAMAL INDIA LTD.         …APPELLANT

                                     Vs.

HARISINGH                           …RESPONDENT



                               J U D G M E N T


V. GOPALA GOWDA, J.

    This appeal by special leave is directed against the  impugned  judgment
and order dated 28.4.2009 passed by the High Court of judicature  of  Madhya
Pradesh at Indore, in Writ Petition No.  2309  of  2009,  whereby  the  High
Court has affirmed the  award  dated  27.1.2009  passed  by  the  Industrial
Court, Indore in Civil Appeal No. 340/MPIR of 2007 which arises out  of  the
Award dated 29.10.2007 passed by the Labour Court in Case  No.  421/MPIR  of
2001.
For the purpose of considering the rival legal contentions urged  on  behalf
of the parties in this appeal and with a  view  to  find  out  whether  this
Court is required to interfere with the impugned judgment and order  of  the
High Court, the necessary facts are briefly stated hereunder:
     The respondent was employed as a  workman  at  the  drug  manufacturing
unit  of  the  appellant-Nicholas  Piramal  India  Ltd.  (for   short   “the
Company”), situated at Pithampur, Madhya Pradesh.  The  Company  issued  two
charge sheets dated 26.2.2000 and 13.3.2000 against him,  alleging  that  he
has  violated  and  disregarded  the  orders  of  his  senior  officers  and
intentionally slowed down the work under process and  made  less  production
by adopting “go slow work” tactics which is a grave misconduct on  the  part
of the respondent-workman under  Clause  12(1)(d)  of  The  M.P.  Industrial
Employment  (Standing  Orders)  Rules,  1963  (for  short  “the  SSO”).  The
respondent denied the charges levelled against  him  by  the  appellant  and
submitted his reply to the  charge-sheets.  Not  being  satisfied  with  the
same, the domestic enquiry proceedings were initiated  by  the  disciplinary
authority against him. In the  domestic  enquiry  proceedings,  the  Inquiry
Officer found the respondent-workman was  guilty  of  the  misconduct  after
holding that the charges levelled against him were proved which  finding  of
fact is recorded by him in the enquiry report. The findings of  the  Inquiry
Officer were accepted  by  the  Disciplinary  Authority  of  the  appellant-
Company and it served the second show cause  notice  on  the  respondent  on
31.5.2001 along with the copy of the enquiry report, the same did not  refer
to any of his past service  record.  The  respondent-workman  submitted  his
written explanation to the second show cause notice,  denying  the  findings
of the Inquiry Officer by giving point wise reply to  the  findings  of  the
enquiry report. On 30.7.2001  an  order  of  dismissal  was  passed  by  the
appellant-Company dismissing him  from  his  service,  after  accepting  the
findings of the domestic Inquiry Officer in his report and  not  considering
the reply of the respondent-workman to the said show cause notice.

Being aggrieved by the order of dismissal  passed  against  the  respondent-
workman by the appellant-Company, he raised  an  industrial  dispute  before
the Labour Court by filing application No. 421 of 2001 under  Section  31(3)
read with Sections 61 and 62 of  the  Madhya  Pradesh  Industrial  Relations
Act, 1960 (for short “the M.P.I.R. Act”),  questioning  the  correctness  of
the  order  of  dismissal  dated  30.7.2001,  passed  by  the   Disciplinary
Authority of the appellant-Company from  his  services  and  prayed  to  set
aside the same and reinstate him in the service to the said  post  with  all
the consequential benefits including back wages.

The Labour Court, on the basis of the rival legal  and  factual  contentions
urged on behalf  of  the  parties,  framed  the  following  issues  for  its
determination:-

Whether the domestic enquiry conducted against  the  applicant  is  illegal,
malafide and liable to be quashed?
Whether the applicant is the  guilty  of  misconduct  as  described  in  the
charge-sheet?
Whether the applicant is unemployed after termination of service?
Relief and costs.


The enquiry report was produced before the Labour Court  by  the  appellant-
Company and was considered by it and answered the preliminary issue  No.  1,
regarding the validity of the domestic enquiry in the affirmative in  favour
of the appellant-Company.

 The Labour Court, after adverting to the relevant  Clause  12(1)(d)&(m)  of
the SSO and on  re-appreciation  of  the  material  evidence  on  record  in
exercise of its  original  jurisdiction  examined  the  correctness  of  the
findings recorded by the Inquiry Officer on  the  charges  levelled  against
the workman which is accepted by the  Disciplinary  Authority  and  answered
issue No. 2 in the affirmative as well holding that the  alleged  misconduct
of  the  workman  is  proved  and  held  that  the  same  does  not  warrant
interference by the Labour Court in exercise of  its  original  jurisdiction
and power conferred under Section 107 of M.P.I.R. Act, which  is  equivalent
to Section 11A of the Industrial Disputes Act, 1947  (for  short  “the  I.D.
Act”) to substitute the punishment of dismissal  order  passed  against  the
workman as the charges levelled against him  have  been  proved  during  the
enquiry proceedings and the same is held to be valid  in  law  by  answering
the preliminary issue  regarding  the  validity  of  the  domestic  enquiry.
Further, it has held on the merits of  the  case  after  re-appreciation  of
material evidence on record that the penalty of  dismissal  awarded  on  the
respondent-workman is legal and  valid  in  law  which  does  not  call  for
interference by the Labour Court.

The correctness of the same was challenged by the respondent-workman  before
the Industrial Court which is the Appellate Court, by filing C.A. No.275  of
2006. The Appellate Court by its order dated 22.11.2006 set aside the  Award
passed by the Labour Court and remanded the case no. 421 of 2001 to  it  for
its re-consideration.  The  Labour  Court  again   passed  the  award  dated
15.2.2007 after reconsidering the case as directed by the  Appellate  Court,
in favour of appellant-Company, holding that the order of  dismissal  passed
by the Company does not warrant interference by it. The correctness  of  the
same was again challenged by the respondent-workman  before  the  Industrial
Court which again remanded the case to the Labour Court by its  order  dated
7.8.2007 in C.A. No. 53 of 2007.

 The Labour Court after re-consideration of the  case,  has  partly  allowed
the application of  the  respondent-workman  and  set  aside  the  order  of
dismissal dated 30.7.2001 passed  against  the  respondent-workman  and  the
appellant-Company was directed to reinstate the  respondent-workman  in  the
service with 50% back wages.  The  Labour  Court  however,  denied  him  the
remaining 50% back wages, treating the same as penalty imposed upon  him  in
place of the order of dismissal passed by the disciplinary authority of  the
appellant-Company.

  The  appellant-Company  filed  an  appeal  before  the  Industrial  Court,
questioning the correctness of the Award  passed  by  the  labour  Court  by
filing C.A. No.340 of 2007 urging certain legal grounds and vide  its  order
dated 27.1.2009, the Industrial Court has held that  the  evidence  produced
by the appellant-Company during the domestic enquiry does not show that  the
workman has made less production intentionally during  the  relevant  period
in respect of which the two charge sheets were  served  upon  him.  However,
the Industrial Court held that withholding of 50% of  the  back  wages  from
the respondent-workman for the proved misconduct is justified and  it  found
no other reason for its interference with the Award  passed  by  the  Labour
Court and dismissed the appeal of  the  appellant-Company.  It  has  further
held that  the  order  of  dismissal  passed  by  the  appellant-Company  is
disproportionate to the gravity of the misconduct of the  respondent-workman
by recording its findings to that effect  with  reference  to  the  material
evidence on record and held that the charges are  proved  partially  by  the
appellant-Company  against  the  respondent-workman   before   the   Inquiry
Officer.

 The Appellate Court examined the proportionality of the order of  dismissal
passed against the respondent-workman by the Disciplinary Authority  of  the
appellant-Company, after adverting to the judgments of  this  Court  in  the
cases of Bharat Heavy Electricals Ltd. v. M. Chandrasekhar Reddy  &  Ors.[1]
and Regional Manager, U.P.S.R.T.C., Etawah & Ors.  v.  Hoti  Lal  &  Anr.[2]
and held that the  charges  levelled  against  the  respondent-workman  only
proved that he has not completed the production to  the  full  capacity  but
the  punishment  order  of  dismissal  from  service  awarded  against   the
respondent-workman  is  disproportionate  to  the  gravity   of   misconduct
committed by the workman. Further,  it  has  opined  that  the  Disciplinary
Authority  could  have  imposed  a  lesser  punishment,  such  as   censure,
withholding of increments  or  any  other  fine  as  provided  under  Clause
12(3)(a)to(c)  of  the  SSO  upon  the  respondent-workman  for  the  proved
misconduct.  However,  the  employer  has  awarded  severe   punishment   of
dismissal on the respondent-workman which is much  harsher  and  unjustified
in proportion to the proved misconduct as it would  deprive  the  livelihood
of the respondent-workman and his family members. Hence,  the  Labour  Court
interfered with the same in exercise of  its  jurisdiction  conferred  under
Section 107 of M.P.I.R. Act and held that  the  order  of  dismissal  passed
against the workman is not proper and the same is liable to  be  set  aside.
Accordingly, the same was set aside.

   The Award of reinstatement  of  the  workman  with  50%  back  wages  was
challenged by the appellant-Company by filing the writ petition  before  the
High Court under Article 227 of the Constitution of  India,  urging  various
legal grounds. The High Court, after adverting to  the  relevant  facts  and
the findings of fact recorded in the Awards passed by both the Labour  Court
and the Industrial Court, after examining the  relevant  provisions  of  the
M.P.I.R. Act and the standing orders  and  keeping  in  view  the  order  of
dismissal passed against the  respondent-workman  as  punishment  under  the
provisions of the SSO, has held that the exercise  of  power  under  Section
107 of M.P.I.R. Act by both the Labour Court  and  the  Appellate  Court  in
substituting the lesser punishment  in  place  of  the  order  of  dismissal
imposed by the Disciplinary Authority is bad in  law  and  it  further  held
that it is not a fit case for it to interfere with the same  and  held  that
the Labour Court in exercise of its power under Section 107 of M.P.I.R.  Act
has got the original jurisdiction and power to interfere  with  the  quantum
of punishment imposed upon the workman by the Disciplinary Authority of  the
appellant-Company and the same is concurred with by the Industrial Court  in
exercise of its Appellate Jurisdiction after re-appreciation of evidence  on
record. Secondly,  it  has  held  that  the  charges  levelled  against  the
respondent-workman were partially  proved  but  it  did  not  call  for  the
appellant-Company to impose extreme  punishment  by  passing  the  order  of
dismissal against him. Further, looking into the nature of the  charges  and
its  gravity,  the  imposition  of  punishment  of  dismissal  upon  him  is
disproportionate to that of the charges  levelled  against  the  respondent-
workman which are partially proved and lastly producing less tablets by  the
respondent-workman during that particular duration  may  have  been  due  to
several reasons. Therefore, it  was  held  by  the  Labour  Court  that  the
punishment of withholding  50%  back  wages  justifies  the  proved  act  of
misconduct against the respondent-workman. It  has  further  held  that  the
same would be proper, particularly, having regard to the fact that  no  past
misconduct of the workman was relied upon by the appellant-Company which  is
one of the relevant considerations at the  time  of  passing  the  order  of
dismissal against him as per Clause 12(3)(vi) of  the  SSO  required  to  be
followed by the appellant-Company. The correctness of the impugned  judgment
and the order of the High Court has been questioned in this  appeal  by  the
appellant-Company on certain grounds raising substantial questions of law.

  It has been contended by Mr. C.U. Singh, the  learned  senior  counsel  on
behalf of the appellant-Company  that  the  charges  of  misconduct  of  “go
slow”, for giving less production during the  relevant  period  of  time  as
mentioned in the charge-sheets has  been  proved  in  the  domestic  enquiry
against the respondent-workman. Further, he has urged that  the  same  is  a
grave misconduct on the part of the respondent-workman  which  warranted  an
order of dismissal to be imposed upon him by the appellant-Company  in  view
of his past service record as mentioned in the order of dismissal.  Further,
it is contended that  the  order  of  dismissal  was  passed  after  holding
domestic enquiry as provided under  the  SSO  and  in  compliance  with  the
principles of natural justice.


   The learned senior counsel has further contended that the  charge  sheets
issued against the respondent-workman would show that he has  disobeyed  the
orders of his superiors and wilfully slowed down  the  performance  of  work
which is a grave misconduct for  which  the  disciplinary  proceedings  were
initiated and the domestic enquiry was  conducted  against  the  respondent-
workman after giving him an opportunity  in  accordance  with  the  relevant
provisions of the SSO and the second show cause notice was issued to him  in
this regard. Thereafter, not being satisfied with his reply  to  the  second
show cause notice, the order of dismissal was passed against the workman  by
the appellant-Company as it is major misconduct  under  Clause  12(3)(b)(vi)
of the SSO and therefore, such a major penalty imposed  upon  him  is  legal
and valid and the same could not have been interfered  with  by  the  Labour
Court.

   He has further placed reliance upon the findings recorded in  the  report
by the Inquiry Officer on the basis of the  evidence  adduced  by  both  the
employer and the defence witnesses, namely, co-employees, DW-1 and DW-3.  He
has also contended  that  during  the  relevant  period  of  time  the  less
production of tablets by the respondent-workman is a clear  case  of  wilful
slowing down of work which is a grave misconduct on the part of the  workman
which  warranted  an  order  of  dismissal  passed  against   him   by   the
Disciplinary Authority of the appellant-Company.

   He has further contended that the finding of the Labour  Court  that  the
respondent has not worked to his full capacity in the establishment  of  the
appellant-Company and holding that the  order  of  his  dismissal  from  the
service by the appellant-Company is not justified, is an  erroneous  finding
of fact as the same  is  contrary  to  the  material  evidence  produced  on
record, particularly, the evidence adduced before the  Inquiry  Officer  and
the evidence of the defence witnesses DW-1 and DW-3 who  have  spoken  about
the wilful go slow by the respondent-workman in producing  the  tablets  for
the appellant-Company. Therefore, the finding recorded by the  Labour  Court
on the misconduct by the respondent-workman is erroneous in law as the  same
is contrary to the legal  evidence  and  no  reasonable  person  could  have
arrived at such a conclusion. Hence, the Labour Court has erred  in  law  in
holding that the  charges  are  partially  proved  against  the  respondent-
workman even after two remand orders were passed by the Industrial Court  in
recording the aforesaid finding on the charges in favour of the  respondent-
workman and the exercise of power by the Labour Court under Section  107  of
the M.P.I.R. Act is vitiated in law as the same is contrary to the  judgment
of this Court in the case of Bharat Sugar Mills Ltd. v. Jai Singh &  Ors.[3]
wherein this Court has held that the charge of wilful go slow  in  producing
less production on the part of the  workman  is  a  grave  misconduct  which
warrants order of dismissal passed against the workman.

  The learned senior counsel, Mr. C.U. Singh,  has  further  contended  that
the finding recorded by the Labour Court at  para  20  of  the  Award  dated
29.10.2007 passed by it, wherein it is held that the order of  dismissal  of
the respondent-workman from the service is disproportionate with respect  to
the gravity of the proved misconduct, is once  again  an  erroneous  finding
and therefore,  it  is  unsustainable  in  law.  The  same  was  erroneously
endorsed by both the Industrial Court  and  the  High  Court  as  they  have
declined to exercise their appellate jurisdiction and  therefore,  the  same
requires to be  corrected  by  this  Court  in  exercise  of  its  appellate
jurisdiction in this Appeal.

  It has been further contended  by  the  learned  senior  counsel  for  the
appellant-Company that the Labour Court  has  erred  in  awarding  50%  back
wages by passing an award of reinstatement and setting aside  the  order  of
dismissal by holding  that  the  order  of  dismissal  is  disproportionate,
without there being any plea or evidence adduced  by  the  workman  in  this
regard.

  On the other hand, Mr. Niraj Sharma, the learned counsel on behalf of  the
respondent-workman  has  vehemently  sought  to  justify  the  findings  and
reasons recorded by the Labour Court on  the  contentious  issue  No.  2  in
exercise of its power  under  Section  107  of  the  M.P.I.R.  Act  and  has
contended that the Labour Court on re-appreciation  of  evidence  on  record
has  held  that  the  imposition  of  the  major  penalty  of  dismissal  is
disproportionate to the gravity of the misconduct that was partially  proved
and the same has been rightly  interfered  with  by  applying  the  decision
referred to in the judgment passed by the Labour Court, as the  same  is  in
accordance with law as laid down by this Court in Raghubir Singh v.  General
Manager,  Haryana  Roadways,  Hissar[4]  and  Jitendra   Singh   Rathor   v.
Baidyanath Ayurved Bhawan Ltd. & Anr.[5]  wherein this Court has  held  that
the denial of back wages to the workman itself  is  an  adequate  punishment
for the proved misconduct against him.

  It has been further contended by him that the  statutory  duty  cast  upon
the Disciplinary Authority under Clause 12(3)(c) of the SSO requires  it  to
take into consideration the gravity of the misconduct, the  previous  record
of the workman and any other extenuating  or  aggravating  circumstances  at
the time of passing  an  order  of  dismissal.  In  the  present  case,  the
appellant-Company has not notified the workman about any of his past  record
in the show cause notice as required in law as per  the  Constitution  Bench
decision of this Court  in  the  case  of  State  of  Mysore  v.  K.  Manche
Gowda[6].

  Further, there are no extenuating and aggravating  circumstances  existing
against the workman which would lead to the imposition of major  or  extreme
penalty of  dismissal  by  the  appellant-Company.  Therefore,  there  is  a
violation of statutory duty on the part of  the  Disciplinary  Authority  of
the appellant-Company. This important aspect of the case  has  been  rightly
considered by both the Labour Court and the Industrial Court therefore,  the
same has rightly not been interfered with by the High Court in  exercise  of
its supervisory jurisdiction. Therefore, he  has  submitted  that  the  same
does not call for interference by this Court.

  He has further contended that concurrent finding of fact recorded  by  the
fact finding courts need not be interfered with by this  Court  in  exercise
of its appellate jurisdiction in view of the fact that the Labour Court  and
the Industrial Court on re-appreciation of the evidence  on  record  and  by
placing reliance upon the judgments referred to  in  the  impugned  judgment
and Award, have held that the dismissal of the respondent-workman  from  the
service in the Company of the appellant for the partially proved  misconduct
is contrary to the punishment enumerated under  Clause  12(3)(b)(i)to(v)  of
the SSO, which  provides  punishment  of  censures,  fine,  etc.  for  major
misconduct.  The  dismissal  enumerated  under  Clause  12(3)(vi)   of   the
aforesaid SSO, should not have been imposed by  the  Disciplinary  Authority
of the  Company,  in  the  fact  situation  of  the  present  case  and  the
concurrent view of the fact finding courts which  has  also  been  concurred
with by the High Court in exercise of its supervisory  jurisdiction  and  it
has rightly held that it is  legal  and  valid  and  does  not  require  the
interference of this Court.

He has also contended before the Labour Court that the finding  recorded  by
the Inquiry Officer  in  his  enquiry  report,  which  is  accepted  by  the
Disciplinary Authority,  is  erroneous  in  law  as  there  is  no  material
evidence on record against the respondent-workman by  the  appellant-Company
to prove the charge that he had intentionally adopted  “go  slow”  work  for
the period mentioned in the charge-sheets. The  Disciplinary  Authority  has
not taken into consideration the past service  record  and  extenuating  and
mitigating circumstances at the time of  passing  the  order  of  dismissal,
keeping in view the relevant provisions  of  the  SSO  Clause  12(3)(a)&(b).
Therefore, the courts have repeatedly  held  that  the  order  of  dismissal
passed against the respondent-workman is illegal and  improper  and  against
the provisions of the SSO and the principles of natural justice.  Therefore,
it is claimed that the  respondent-workman  is  entitled  for  reinstatement
with consequential benefits after  setting  aside  the  order  of  dismissal
passed by the Disciplinary Authority of the appellant-Company against him.

  With reference to the aforesaid rival legal contentions  urged  on  behalf
of the parties and the evidence on record, we have  carefully  examined  the
following points to find out as to whether the impugned judgment  and  Award
warrant interference in this appeal :-

 Whether the concurrent finding of facts recorded by the High Court  in  not
interfering with  the  order  of  the  Industrial  Court  in  directing  the
appellant-Company to reinstate and pay 50% back  wages  to  the  respondent-
workman is legal and valid?
What order?

   The first point is required to be answered in favour of  the  respondent-
workman for the following reasons:-
      The Labour Court at the  first  instance  has  erroneously  failed  to
exercise its jurisdiction by not  re-appreciating  the  evidence  on  record
after holding that the preliminary  issue  regarding  the  domestic  enquiry
conducted by the appellant-Company is legal and valid.  The  said  erroneous
finding was challenged by the  respondent-workman  in  the  Appellate  Court
after two remand orders were passed by  the  Industrial  Court.  Ultimately,
the Labour Court has exercised its jurisdiction and  on  re-appreciation  of
the facts and the evidence on record and in accordance with the decision  of
this Court in The Workmen of M/s. Firestone Tyre & Rubber Company  of  India
(P) Ltd. v. The  Management  and  Ors.[7],  it  has  found  fault  with  the
findings of the Inquiry Officer  which  was  endorsed  by  the  Disciplinary
Authority which has erroneously held that the  workman  was  guilty  of  the
misconduct. The Labour Court after the two remand orders  has  rightly  come
to the conclusion on re-appreciation of the  evidence  on  record  and  held
that the charge levelled against the  respondent  is  partially  proved  and
even then the order of  dismissal  imposed  upon  him  by  the  Disciplinary
Authority, has been done without notifying the respondent-workman about  his
past service record, as required  under  Clause  12(3)(b)&(c)  of  the  SSO,
which aspect is rightly noticed and answered by the Labour Court at para  20
of its Award dated 29.10.2007. Thus, the order of dismissal of  the  workman
from the service is disproportionate  and  severe  to  the  gravity  of  the
misconduct. The same has been laid  down  by  this  Court  in  the  case  of
Raghubir Singh v. Haryana Roadways (supra),  wherein  this  Court  has  held
thus:-
“39. The above said “Doctrine of Proportionality” should be applied  to  the
fact situation as we are of the firm view that  the  order  of  termination,
even if we accept the same is  justified,  it  is  disproportionate  to  the
gravity of misconduct. In this regard, it would be  appropriate  for  us  to
refer to certain paragraphs from the decision of this Court in Om  Kumar  v.
Union of India, wherein it was held as under: (SCC pp. 410-11, paras 66-68)

“66.  It  is  clear  from  the  above  discussion  that   in   India   where
administrative  action   is   challenged   under   Article   14   as   being
discriminatory,  equals  are  treated  unequally  or  unequals  are  treated
equally, the question is for the constitutional courts as primary  reviewing
courts to consider correctness of the level of  discrimination  applied  and
whether it is excessive and whether  it  has  a  nexus  with  the  objective
intended to be achieved by the administrator. Hence  the  court  deals  with
[pic]the merits of the balancing action of  the  administrator  and  is,  in
essence, applying ‘proportionality’ and is a primary reviewing authority.

67. But where an administrative action is challenged  as  ‘arbitrary’  under
Article 14 on the basis  of  Royappa  (as  in  cases  where  punishments  in
disciplinary cases  are  challenged),  the  question  will  be  whether  the
administrative order is ‘rational’ or ‘reasonable’ and the test then is  the
Wednesbury test. The courts would then be confined only to a secondary  role
and will only have to see whether the administrator has  done  well  in  his
primary role, whether  he  has  acted  illegally  or  has  omitted  relevant
factors  from  consideration  or   has   taken   irrelevant   factors   into
consideration or whether his view is one which no  reasonable  person  could
have taken. If his action does not satisfy these rules, it is to be  treated
as  arbitrary.   [In   G.B.   Mahajan   v.   Jalgaon   Municipal   Council.]
Venkatachaliah, J. (as he then was) pointed  out  that  ‘reasonableness’  of
the administrator under Article 14 in the context of administrative law  has
to be judged from the standpoint of Wednesbury rules. In  Tata  Cellular  v.
Union of India (SCC at pp. 679-80), Indian  Express  Newspapers  Bombay  (P)
Ltd. v. Union of India, Supreme Court Employees’ Welfare Assn. v.  Union  of
India  and U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd.  while  judging
whether the administrative action is  ‘arbitrary’  under  Article  14  (i.e.
otherwise then being discriminatory), this Court has confined  itself  to  a
Wednesbury review always.

68. Thus, when administrative action is  attacked  as  discriminatory  under
Article 14, the principle of primary review is for the  courts  by  applying
proportionality. However,  where  administrative  action  is  questioned  as
‘arbitrary’ under Article 14, the principle of  secondary  review  based  on
Wednesbury principles applies.”

40. Additionally, the proportionality and  punishment  in  service  law  has
been discussed by this Court in Om Kumar case as follows:

“69. The principles explained in the last preceding paragraph in respect  of
Article 14 are now to be applied here where the question of  ‘arbitrariness’
of the order of punishment is questioned under Article 14.
70. In this context, we shall only refer to these cases.  In  Ranjit  Thakur
v.  Union  of  India,  this  Court  referred  to  ‘proportionality’  in  the
[pic]quantum of punishment but the Court observed that  the  punishment  was
‘shockingly’ disproportionate to the misconduct proved. In  B.C.  Chaturvedi
v. Union of India, this Court stated  that  the  Court  will  not  interfere
unless the punishment awarded was one which shocked the  conscience  of  the
court. Even then, the court would remit the matter  back  to  the  authority
and would not normally substitute one punishment for the other. However,  in
rare situations, the court could award an alternative penalty. It  was  also
so stated in Ganayutham.””

Further, in the case of State of Mysore v. K.  Manche  Gowda  (supra),  this
Court has held thus:-
“8…….It is suggested that the past record of a government servant, if it  is
intended to be relied  upon  for  imposing  a  punishment,  should  be  made
specific charge in the first stage of the enquiry itself and, if it  is  not
so done, it cannot be relied upon  after  the  enquiry  is  closed  and  the
report is submitted to the authority entitled to impose the  punishment.  An
enquiry against a government servant is one continuous process,  though  for
convenience it is done in two stages. The report submitted  by  the  Enquiry
Officer is only recommendatory in  nature  and  the  final  authority  which
scrutinizes it and imposes punishment is the authority empowered  to  impose
the same. Whether a particular person has a reasonable  opportunity  or  not
depends, to some extent, upon  the  nature  of  the  subject-matter  of  the
enquiry. But it is not  necessary  in  this  case  to  decide  whether  such
previous record can be made the subject matter of charge at the first  stage
of the enquiry. But, nothing in law prevents the  punishing  authority  from
taking that fact into consideration during the second stage of the  enquiry,
for essentially it relates more to the domain of punishment rather  than  to
that of guilt. But what is essential is that the  government  servant  shall
be given a reasonable opportunity to know that fact and meet the same.”


  Further, the Labour Court after adverting to the judgments of  this  Court
referred to supra has rightly held  that  the  punishment  of  dismissal  is
disproportionate and  interfered  with  the  same  by  imposing  the  lesser
punishment of denial of 50% back wages with reinstatement and the  same  has
been examined and rightly upheld by the Appellate Court and the  High  Court
in  exercise  of  its  judicial  review  power  under  Article  227  of  the
Constitution of India.

  Having regard to the nature of judicial review power  conferred  upon  the
High Court, it has rightly accepted the impugned Award passed by the  Labour
Court which is affirmed by  the  Appellate  Court  by  recording  valid  and
cogent reasons in the impugned  Award/judgment.  The  same  can  neither  be
termed as erroneous nor error in law.

  The workman’s wilful disobedience of  lawful  or  reasonable  order  under
Clause 12(1)(d) of  the  SSO  and  the  wilful  slowing  down  of  the  work
performance by him has been held to  be  partially  proved.  Therefore,  the
Labour Court has imposed  a  lesser  punishment  as  against  the  order  of
dismissal in exercise of its original jurisdiction and power  under  Section
107 of the M.P.I.R. Act as the Disciplinary Authority  has  failed  to  give
any valid reasons for not imposing any one  of  the  lesser  punishments  as
provided under Clause 12 (3)(b)(i) to (v) of SSO. Hence, the denial  of  50%
back wages to the workman  by  the  Labour  Court  is  itself  a  punishment
imposed upon the workman as held by this  Court  in  the  case  of  Jitendra
Singh Rathor (supra), upon which reliance has been  rightly  placed  by  the
learned counsel for the respondent- workman. The contention urged on  behalf
of the appellant-Company that the award of back wages in the absence of  any
plea and evidence by  the  respondent-workman  that  he  was  not  gainfully
employed cannot be accepted by us in view of the decision  in  the  case  of
Deepali Gundu Surwase v. Kranti Junior Adhyapak  Mahavidyalaya  (D.  Ed.)  &
Ors[8]. delivered by this Court to which  one  of  us,  (Justice  V.  Gopala
Gowda), is a party to the judgment.

  For the reasons stated supra, we do not find any good reason to  interfere
with the impugned judgment and Awards of the  High  Court  as  well  as  the
Appellate Court and the Labour Court. The appeal is devoid of merit  and  is
accordingly dismissed. The  order  dated  28.8.2009  granting  stay  of  the
impugned order shall stand vacated.

      Since, the matter has been pending before various courts for the  last
14 years, we direct the appellant-Company to reinstate the workman within  4
weeks from the date of receipt of the copy of this judgment and compute  50%
back wages payable to him from the date of his dismissal  from  the  service
till the date of passing of the Award, as per  the  periodical  revision  of
the same and pay full salary from the date of the passing of the Award  till
the date of reinstatement.



                                                   ……………………………………………………………J.
                          [V.GOPALA GOWDA]



                                                   ……………………………………………………………J.
                          [C. NAGAPPAN]


New Delhi,
April 30, 2015
-----------------------
[1]    (2005) 2 SCC 481
[2]    (2003) 3 SCC 605
[3]    (1962) 3 SCR 684
[4]    (2014) 10 SCC 301
[5]    (1984) 3 SCC 5
[6]    (1964) 4 SCR 540

[7]    AIR  (1973) SC 1227
[8]    (2013)  10  SCC 324

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|NON-REPORTABLE       |





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