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TMI Blog2005 (1) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... minor or technical character; and (ii) the punishment is a shockingly disproportionate without having any regard to the nature of the particular misconduct or the past record of service of the employee. The past record of service, therefore, is a relevant factor for considering as to whether the punishment imposed upon the delinquent employee is shockingly disproportionate or not. Thus, before the learned Single Judge an attempt on the part of the Respondent to take recourse to Clause (b) of Item (1) of Schedule IV failed. In absence of any plea of factual victimization and furthermore in absence of any foundational fact having been laid down for arriving at a conclusion of the legal victimization, in our opinion, the Division Bench committed a manifest error in invoking Clause (a) thereof. Furthermore, it is 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-corner 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 provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable employer could impose such punishment for the proved misconduct. Consequently, the Appellant herein was directed to reinstate the Respondent on his original post with continuity of service with 50% of the back-wages for the period from 23.12.1983 till his reinstatement. Aggrieved by and dissatisfied therewith both the parties herein preferred separate Revision Applications before the Industrial Tribunal. By a common judgment dated 12.6.1987, the Revision Application filed by the Appellant was allowed and that of the Respondent was dismissed. The Respondent thereupon filed a Writ Petition before the Bombay High Court and by reason of a judgment and order dated 9.2.1995, the said Writ Petition was dismissed by a learned Single Judge. A Letters Patent Appeal there- against was filed by the Respondent herein which by reason of the impugned judgment was allowed directing : "i) the judgment of the learned Single Judge dated 9th February 1995 and the order of the Industrial Court dated 12th June 1987 are quashed and set aside. ii) The order passed by the second labour court dated 31st July 1985 is modified by directing the employer to pay a sum of ₹ 2,50,000/- to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strikes and lock-outs as illegal strikes and lock-outs; to define and provide for the prevention of certain unfair labour practices; to constitute courts (as independent machinery) for carrying out the purposes of according recognition to trade unions and for enforcing the provisions relating to unfair practices; and to provide for matters connected with the purposes aforesaid. Section 26 of the Act defines 'unfair labour practices' to mean any of the practices listed in Schedules II, III and IV appended thereto. Schedule IV of the Act specifies general unfair labour practices on the part of the employers, the relevant clauses whereof are as under : "1. To discharge or dismiss employee (a) by way of victimization; (b) not in good faith, but in colourable exercise of employer's right; (g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment;" Section 27 of the Act provides that, inter alia, no employer shall engage in any unfair labour practice. Section 28 provides for dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Nakate was present and submitted that he was not feeling well therefore he was unable to attend the enquiry. When I asked him he told me that he had not come for attending the enquiry. The certificate was in his vehicle and he had come only for asking the adjournment. Mr. Sagade submitted that though Mr. Nakate is covered under ESI Scheme I have accepted the Private Doctor's certificate at Ex. 7. Mr. Nakate should have brought ESI Doctor's certificate for his sickness. The company does not accept the Private Doctor's certificate. Considering the sequence of the incidence Mr. Sagade further stated that Mr. Nakate was deliberately advancing some or the other reasons to dodge the enquiry. He further stated that if Mr. Nakate was not feeling well he could have sent ESI certificate for his sickness on 24.9.1983 onwards. However he has done so. I directed Mr. Nakate to go and get the certificate which according to him was in his vehicle. Accordingly Mr. Nakate went out of cabin. After about 10-15 minutes he came back and submitted an application at Ex. 8 stating that as he was mentally disturbed and he was not feeling well the enquiry be adjourned for 8 days. I again and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case, we cannot adopt this harsh view. It is because the length of service of the complainant is of longer period of 10 years and for one lapse of this nature it is not proper to sack him from the services. I think, therefore, by imposing lesser punishment it would be better if one more chance is given to him to serve the respondent company. Viewed from this angle, I think, the punishment of removal imposed upon him by the respondent is absolutely harsh and disproportionate and no any reasonable employer would impose such punishment in such circumstances." No sufficient or cogent reason, in our opinion, was assigned by the learned Labour Court as to why a lenient view should be taken. The Revisional Court while allowing the Revision Application of the Appellant and dismissing the Revision Application of the Respondent came to the conclusion that as the misconduct has been proved and relying on the decision of this Court in Bhagubhai Balubhai Patel (supra) where it was opined that a proved misconduct is anti-thesis of victimization in the industrial relations; held : "Therefore, in granting the relief of reduction of the nature of punishment, the learned judge of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployer would be guilty of having engaged in an unfair labour practice under clause (a) of Item 1 of Schedule IV" Upon taking into consideration the gravity of past misconduct, it was observed : "We find that looking to the nature of the charge, i.e. the employee was found sleeping during duty hours, the employee could not have been inflicted with the punishment of dismissal. The past record which has been referred to hereinabove and the misconduct proved did not justify the punishment of dismissal as no reasonable employer would ever impose the punishment of dismissal in such circumstances" The Division Bench, however, instead and place of passing an order of reinstatement upon taking into consideration the fact that he was out of the job for about 15 years and hardly 5-6 years' job is left, directed payment of a sum of ₹ 2,50,000/- to the Respondent. Colour-Chem Ltd. (supra) whereupon strong reliance has been placed by the Division Bench of the High Court is an authority for the proposition that Clause (g) of Item 1 of Schedule IV of the Act is relatable to a minor or technical misconduct which in a given set of cases may amount to resulting in a shoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g only the legal provisions. No plea of legal victimization was also taken in the complaint petition. A bench of this Court in U.P. State Road Transport Corporation vs. Mohan Lal Gupta and Others [(2000) 9 SCC 521], opined : "The learned advocate appearing in support of the appeal mainly contended on two counts. On the first, it has been very strenuously contended as to whether the Labour Court can alter the punishment awarded to Respondent 1 workman upon recording a finding that the charges have duly been proved and secondly, it has been contended as to whether the employee who has admittedly misappropriated the property of the employer Corporation can be allowed to be retained in service. These two issues are undoubtedly of some importance. The workman concerned during the course of inquiry in no uncertain terms admitted his guilt though however he has stated that the same amounted to mere negligence and not a deliberate act. But the Labour Court being the fact finding court came to the conclusion that the charges stood proved and we are not in a position to reassess the factual situation at this stage of the proceedings under Article 136 of the Constitution. The findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judge an attempt on the part of the Respondent to take recourse to Clause (b) of Item (1) of Schedule IV failed. In absence of any plea of factual victimization and furthermore in absence of any foundational fact having been laid down for arriving at a conclusion of the legal victimization, in our opinion, the Division Bench committed a manifest error in invoking Clause (a) thereof. The Division Bench, thus, was not correct in relying on Colour-Chem Ltd. (supra) and failed to notice the distinguishing features thereof. A decision, as is well-known, is an authority of what it decides and not what can logically be deduced therefrom. [See Cement Corporation of India Ltd. vs. Purya and Others [(2004) 8 SCC 270] In Bhagubhai Balubhai Patel (supra), this Court observed : "In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimization as a defence will fall flat. This is why once, in the opinion of the tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the tribunal on merits, the plea of victimization will not carry the case of the employee any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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