JUDGMENT

1. As the issues that arise for consideration in these two writ petitions are one and the same, they are dealt with by a common order.

2. These writ petitions are filed invoking the extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India to quash the common award, dated 29 March, 1996, in I.D Nos. 666 of 1992 and 668 of 1992 on the file of Presiding Officer, Labour Court III, Hyderabad, in directing the writ-petitioner to reinstate R2 and R3 into service. Aggrieved by the same, W.P No. 14538 of 1996 is filed by the writ-petitioner-management. Aggrieved by the award, dated 6 April, 1996, in I.D No. 669 of 1992 directing the writ-petitioner to reinstate into service with continuity of service, writ-petitioner-management filed W.P No. 16020 of 1996.

3. The brief facts that are necessary for disposal of these writ petitions may be depicted as follows:

The petitioner is a Private, Ltd., Company duly incorporated under the Companies Act, 1956, having its registered Office at Nacharam, I.D.A, Hyderabad and is engaged inter alia in the business of manufacture and sale of plywood for which purpose, it has set up its factory at Nacharam. It employs 84 workmen at its factory who have been in existence since 25 years. R2 and R3 in W.P No. 14538 of 1996 and R2 in W.P No. 16020 of 1996 who are workmen working in the petitioner's factory along with another workman, viz., B. Rajaiah reported to have committed serious acts of misconduct, i.e, on 24 December, 1991 at about 9-30 A.M when they were in first shift they left their work-spot, formed into unlawful assembly and joined in an altercation wherein, co-workers Shekar Reddy and Satyanarayana were freely exchanging fist blows with the other workmen engaged in the fight and caused serious injuries.

4. The charges levelled against R2 in W.P No. 14538 of 1996 are as follows:

(1) That on 24 December, 1991 at 9-30 A.M during your shift working hours from 7-00 A.M to 3-00 P.M, you along with Sri J. Veeranna, Sri M. Yadagir, Sri K. Narasa Reddy, Sri K. Ranganath, Sri K. Shivanna, Sri Md. C. Ibrahim, Sri D. Yadaiah, Sri E. Krishna Rao and Sri B. Rajaiah and Sri D. Narasimha.

All of whom are workmen employed by the company, left your place of work formed yourselves into an unlawful assembly, joined the altercation and the fight in which Shekar Reddy and Satyanarayana were involved freely exchanged fists and blows with the other workmen engaged in the fight causing injuries to them. It is also reported that you used pieces of wood, etc., lying nearby in the course of the tight

(2) As a result of your unruly, indiscipline and riotous behaviour the work came to a standstill and several workmen received injuries.

(3) The fight in which you are reported to have been involved continued till the management sought police help to stop the same.

The charges levelled against R3 in the same writ petition are as follows:

(1) That on 24 December, 1991 at 9-30 A.M during your shift duty hours from 8-30 A.M to 5-00 P.M you are reported to have picked up an argument purposely with Sri C. Satyanarayana a co-worker working in the same section abused him in vulgar language and started beating him which resulted in commotion.

(2) As a result of your above behaviour the workmen took aides and fighting started inside the section resulting in injuries to some workmen. As the management could not put a stop to the fighting which continued they had to seek police help to restore order.

The above action on your part if proved will amount to an act subversive of discipline and an act of serious misconduct under rule 20(k) of the 20(x) of the Certified Model Standing Orders of the Company.

The charges levelled against the second respondent in W.P No. 16020 of 1996 are as follows:

(1) That on 24 December, 1991 at 9-10 A.M during your shift working hours from 7 A.M you along with

Sri V. Veeranna Sri Md. Shubhan Shariff Sri M. Yadagiri Sri K. Narasa Reddy Sri K. Ranganath Sri K. Shivanna Sri D. Yadaiah Sri B. Rajaiah Sri D. Narasimha Sri Md. C. Ibrahim

All of whom are workmen employed by the company, left your place of work, formed yourselves into an unlawful assembly, joined the altercation and the fight in which Shekar Reddy and Satyanarayana were involved freely exchanged fists and blows with the other workmen engaged in the fight causing injuries to them. It is also reported that you used pieces of wood, etc., lying nearby in the course of the tight.

(2) As a result of your unruly, indiscipline and riotous behaviour the work came to a standstill and several workmen received injuries.

(3) The fight in which you are reported to have been involved continued till the management sought police help to stop the same.

5. Consequent to such illegal acts, which were unruly, indiscipline and riotous, the work in the factory came to a standstill and several workmen sustained injuries. In view of the acts of misconduct being serious in nature, separate individual chargesheet-cum-show-cause notices, dated 24 December, 1991, were issued to them, which were responded by them by way of an explanation stating that they had complained to Sub-Inspector of Police, Nacharam. They sent a copy of the complaint to the petitioner asking him to consider it as their reply. Thereafter, enquiry was decided to be conducted and the chargesheeted workmen were notified. All of them sought several adjournments at the time of enquiry and enquiry officer while granting adjournments from time to time, eventually advised that non-availability of General Secretary of the Union, whom they wanted to represent cannot be a reason for adjournment and that they can take the assistance of any co-worker. Then, the workmen walked away from the enquiry after affixing their signatures on the enquiry records. In view of their knowingly and deliberately staying away from the enquiry, the enquiry officer was constrained to conduct enquiry ex parte. After completion of enquiry, the enquiry officer submitted his reports. Their services were terminated by the disciplinary authority after considering the enquiry reports. Questioning the action of the disciplinary authority, the workmen filed I.D Nos. 666, 667, 668 and 669 of 1992 before R1, The validity of domestic enquiries was considered at the threshold and was upheld by the Tribunal. R1 heard the arguments on the quantum of punishment under S. 11-A of the Act and a common award in respect of industrial disputes has been passed and the same was published on 8 July, 1996. Aggrieved by the impugned common award to the extent it directs reinstatement of R2 and R3 in I.D No. 666 of 1992 and 668 of 1992 respectively with continuity of service and with attendants benefits, the Writ Petition No. 14538 of 1996 is filed. In so far as reinstatement of R2 in I.D No. 669 of 1992 is concerned, writ-petitioner filed W.P No. 16020 of 1996.

6. R-2 filed counter-affidavit stating that writ petition was not maintainable as there was no error apparent on the face of the common award in I.D Nos. 666 and 668 and the award in 669 of 1992. The Labour Court, after minutely assessing the evidence, interfered with the quantum of punishment under S. 11-A of the I.D Act and that the award does not suffer from legal infirmities. Resisting the charge, workmen offered their explanation on 7 January, 1992 enclosing copy of the complaint whereunder the workers belonging to other group abused and assaulted them with swords and sticks on 22 December, 1991 at about 10-00 A.M In spite of requesting the enquiry officer to grant time, the enquiry officer held an ex parte enquiry. Workmen were not given any fair and reasonable opportunity to give explanation for the show-cause notices of dismissal. They requested time to offer explanation as the President of the Union was out of station, but the disciplinary authority, without giving opportunity, dismissed them from service. Therefore, workmen pray to dismiss the petition.

7. The learned counsel for the petitioner contended that the Labour Court having accepted the findings of the enquiry officer ought not to have interfered with the punishment as the proved misconduct is completely in proportion to the punishment imposed by the management. The employer lost confidence in the employees for their grave acts of misconduct which has adversely affected the image and reputation of the employer and without assigning any reasons, the Tribunal interfered with the findings of the enquiry officer with regard to the reinstatement. Therefore, the counsel submits that the awards passed by the Tribunal are liable to be set aside.

8. On the other hand, the counsel appearing for workmen contended that workmen put up an unblemished record of 15 years of service and there were no bad antecedents in so far as workmen are concerned, but in a private quarrel, on the spur of the moment, an altercation took place. As the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved, reinstatement of workmen into service was ordered and there are no grounds to interfere with the order of the Tribunal. Hence, he prays to dismiss the writ petitions.

9. The Tribunal, having considered the evidence recorded in the enquiry before the enquiry officer found that the misconduct on the part of the workmen is established. It is also held that the incident occurred due to the dispute among the workers with regard to the contribution of union President's fund and each group gave report against others and the incident occurred on the spur of the moment and therefore, the punishment of dismissal is disproportionate to the proved misconduct. On the principle of “no work, no pay,” back-wages were denied and the writ-petitioner was directed to reinstate the workmen into services with continuity of service with attendant benefits and by denying two increments to each workman as if not accrued.

10. In these writ petitions, the petitioner contended that there was no evidence to justify the conclusion of the Tribunal that the dismissals were an act of unfair labour practice or victimization. Therefore, this Court is of the opinion that the contention of the writ-petitioner must prevail. Even it is not the case of the respondents that there was a basic error or violation of principles of natural justice in holding an enquiry or that the findings of the enquiry officer are perverse or baseless. Therefore, the only question remains to be answered in these writ petitions is whether the Tribunal exercised its judicial discretion under S. 11-A of the Industrial Disputes Act in a judicious manner.

11 Section 11A of the Industrial Disputes Act, 1947, provides as under:

“Powers of Labour Court, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.—Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on the terms and conditions, if any, as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge of dismissal as the circumstances of the case may require:

Provided that in any proceedings under the section, the Labour Court, Tribunal or National Tribunal, as the case may be shall rely only on the material on record and shall not take any fresh evidence in relation to the matter”.

This section vests the Labour Court with a discretion to substitute the order of discharge or dismissal of a workman into an order of reinstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other relief to the workman including the award of any lesser punishment in the lieu of discharge or dismissal as the circumstances of the case may require.

12. It is well settled that once the charge against the delinquent is established, the quantum of punishment is for the employer to decide and ordinarily the Tribunal would not interfere with the order on the quantum of punishment, once the Tribunal comes to the conclusion that there has been no infirmity with the procedure unless the punishment of removal for the misconduct proved may be so unconscionable or so grossly out of proportion to the nature of offence.

13. The learned counsel for the writ-petitioner relied upon the following decisions with regard to exercise of discretion by the management in imposing appropriate punishment, which is not shocking to the conscience of the Tribunal.

14. In a decision reported in B.B Coal Company v. Ram Probesh [A.I.R 1964 S.C 486], the Constitution Bench observed as follows:

“Now there is no doubt that though in a case of proved misconduct, normally the imposition of a penalty may be within the discretion of the management there may be cases where the punishment of dismissal for the misconduct proved may be so unconscionable or so grossly out of proportion to the nature of offence that the Tribunal may be able to draw an inference of victimization merely from the punishment inflicted.”

In the above mentioned case, the workmen incited the other workmen and obstructed the loyal and willing trammers and further the relation between the employer and the union was not happy. Therefore, the Apex Court set aside the findings of the Tribunal on the ground that there was no evidence with regard to victimization.

15. In Indian Railway Construction Co. Ltd. v. Ajay Kumar. [2003 (3) L.L.N 43], the Apex Court held to the following effect, in Para. 27, at page 52:

“We find substance in the plea of learned counsel for the appellant that an employee even if he claims to be a member of the employees' union has to act with a sense of discipline and decorum. Presentation of demands relating to employees cannot be exhibited by muscle power. It must be borne in mind that every employee is a part of functioning system, which may collapse if its functioning is affected improperly. For smooth functioning, every employer depends upon a disciplined employees' force. In the name of presenting demands they cannot hold the employer to ransom. At the same time, the employer has a duty to look into and as far as practicable, obviate the genuine grievances of the employees. The working atmosphere should be cordial, as that would be in the best interest of the establishment. Unless an atmosphere of cordiality exists there is likelihood of inefficient working and that would not be in the interest of the establishment and would be rather destructive of common interest of both employer and employees.”

In this case, admittedly, the petitioners did not demand anything from the employer. It is not a case of dispute between the employer and the employee. It is not a case of exhibiting muscle power by the employees relating to the presentation of demands of the employees.

16. In the decision reported in Devendra Swamy v. Karnataka State Road Transport Corporation. [2002 (2) L.L.N 16], it is held as follows, in Para. 7, at pages 17 and 18:

“The Division Bench of the High Court relied on the decisions of this Court in State of Haryana v. Ratan Singh [1977 (2) L.L.N 50], Uttar Pradesh State Road Transport Corporation v. Basudeo Chaudhary, [(1997) 11 SCC 370], Uttar Pradesh State Road Transport Corporation v. Subhas Chandra Sharma [2000 (2) L.L.N 402], for forming opinion that unless punishment is shockingly disproportionate to the charge which has been proved, the punishment awarded by the disciplinary authority should not be interfered in exercise of power of judicial review. In our opinion, the Division Bench was right in taking the view, which it has taken. The opinion formed by the Labour Court that punishment of dismissal imposed by the management on the workman was too harsh and undeserved, was perverse finding and arrived at by ignoring the material as to previous acts of misconduct and punishments awarded to the appellant brought to the notice of disciplinary authority and the Labour Court. We are also of the opinion that the gravity of charge of misconduct for which the disciplinary proceedings were initiated and which charge was found to be substantiated by the Labour Court, seen in the light of previous service record of the appellant fully justified the punishment awarded by disciplinary authority.”

There is no dispute about the above proposition of law. In a decision reported in Uttar Pradesh State Road Transport Corporation v. Subhash Chandra Sharma [2000 (2) L.L.N 402], their Lordships held as under, in Para. 9, at pages 404 and 405:

“The Labour Court, while upholding the third charge against the respondent nevertheless interfered with the order of the appellant removing the respondent from the service. The charge against the respondent was that he, in drunken state, along with a conductor went to the assistant cashier in the cash room of the appellant and demanded money from the assistant cashier. When the assistant cashier refused, the respondent abused him and threatened to assault him, it was certainly a serious charge of misconduct against the respondent. In such circumstances, the Labour Court was not justified in interfering with the order of removal of respondent from the service when the charge against him stood proved. Rather we find that the discretion exercised by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. It could not be said that the punishment awarded to the respondent was in any way ‘shockingly disproportionate’ to the nature of the charge found proved against him. In our opinion, the High Court failed to exercise its jurisdiction under Art. 226 of the Constitution and did not correct the erroneous order of the Labour Court which, if allowed to stand, would certainly result in miscarriage of justice.”

The employee therein went in a drunken state and demanded money from the assistant cashier and when the assistant cashier refused, the respondent abused him and threatened to assault him. Therefore, it is held by the Apex Court that it is serious charge of misconduct.

17. In another decision reported in B.C Chaturvedi v. Union Bank of India [1997 (4) L.L.N 65], the Apex Court observed as follows, in Para. 18, at pages 71 and 72:

“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 maintaining 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 mould 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.”

The counsel further relied upon a decision rendered by the Division Bench of this Court, reported in V.J Ramulu v. Labour Court, Anantapui [2001 (3) L.L.N 906], wherein, Their Lordships held as under, in Para. 7, at page 909:

“In this case, the appellant herein was found to be guilty of commission of misconduct which is systematic in nature and thus is not a case where the right of the employer in awarding the punishment can be said to be an irrational one warranting interference by the Labour Court in exercise of its jurisdiction under S. 11-A of the Industrial Disputes Act.”

In another decision reported in Depot Manager, Andhra Pradesh State Road Transport Corporation v. G. Rajaiah [1999 (4) L.L.N 729], the learned Single Judge of this Court held as follows, in Para. 8, at page 733:

“…The Labour Court in the instant case perhaps was labouring under some misconception about its power to interfere under S. 11-A of the Act without any reason whatsoever. No such absolute power is conferred upon the Labour Court to interefere with the order of punishment imposed by the disciplinary authority for some undisclosed reasons. In fact, no such power is conferred upon the Labour Court to interfere with the orders of disciplinary authority in an arbitrary and capricious manner. The Labour Court in the instant case does not even record any finding to the effect that the punishment inflicted upon the first respondent herein is shockingly disproportionate to the gravity of proved misconduct. In the absence of such a finding, the Labour Court could not have interfered in the matter at all. The award undoubtedly is perverse in its nature and based on no reason. It is eminently a fit case for interference by this Court in exercise of its certiorari jurisdiction.”

Yet another decision reported in State of Karnataka v. H. Nagaraf, [(1998) 9 SCC 671], the Apex Court held as under:

“This Court has held that the principle of proportionality can be invoked regarding punishment only in a case where the punishment was totally irrational in the sense that it was in outrageous defiance of logic or moral standards.”

18. So, from the above decisions, it is clear that unless the punishment inflicted upon workmen is shockingly disproportionate to the gravity of misconduct, the Tribunal cannot normally substitute its own conclusions.

19. Coming to the facts of the case on hand, four witnesses were examined on behalf of the management and all the charges are proved in the departmental enquiries. In so far as the first charge is concerned the evidence of MWs. 1 to 4 would clearly indicate that charged workmen along with others went there and attacked some other workers. It is not the case of unlawful assembly. It is also not the case of the departmental witnesses that charged workmen incited or provoked their group of workers to attack the other workmen, who are not contributing Union President's Fund. From the evidence available on record, it cannot be said that the charged workmen shared the common object along with other workers so as to do illegal act. But, the evidence of M.Ws 1 to 4 would clearly indicate that the charged workmen caused injuries to some other employees. Therefore, from the evidence, the enquiry officer rightly held that the first charge is proved. In so far as the second and third charges are concerned, it is a case of no evidence at all. The management has not produced any evidence to show that because of indiscipline and riotous behaviour of charged workmen, the work in the factory came to a standstill and that several workmen received injuries. There is no evidence with regard to the nature of injuries sustained by the workmen. Therefore, the second charge cannot be said to be proved as there is no evidence. Coming to the third charge, the management failed to adduce any evidence that the fighting continued till the management sought police help to stop the same. The enquiry officer also did not record any reasons at all for arriving at the conclusion that the charges 2 and 3 are established. So, considering the fact that the incident occurred due to dispute with regard to contribution to Union President's Fund between the workers and each group gave report against others and that the incident occurred on the spur of the moment, the Tribunal found that the punishment of dismissal is disproportionate to the proved misconduct. The case of charged workmen is that they have been serving the petitioner-company for 15 years with unblemished service before the present charges of misconduct were levelled against them. The charges themselves show that there was a free fight between the two groups. In my considered opinion/after recording the reasons the Tribunal found that the extreme punishment of dismissal is disproportionate to the charge proved.

20. For the aforesaid reasons, this Court does not find any ground to interfere with the impugned awards in I.D 666 of 1992 and 668 of 1992, dated 29 March, 1996 and I.D No. 669/92, dated 6 April, 1996, passed by the Labour Court HI, Hyderabad.

21. Therefore, these two writ petitions are devoid of merits and they are liable to be dismissed.

22. Accordingly, W.P Nos. 14538 of 1996 and W P. No. 16020 of 1996 are dismissed ai devoid of merits. In the circumstances, shere shall be no order as to costs.