SRI SAWALE MAHADEV v. THE DIVISIONAL CONTROLLER

5. Heard Sri Shivashankar, learned counsel for the petitioner-workman and Smt. H.R. Renuka, learned counsel appearing for the respondent-corporation.

6. The Labour Court held that the charges are proved and that the workman cannot be let go free as he is unbecoming of the public servant, as such, held that the order of dismissal passed by the corporation is just, proper and legal. It is a well settled principle that, after the insertion - 5 - of Section 11A to the ID Act, if the enquiry is held to be not fair and proper, the opportunity needs to be accorded to the Corporation to justify that the action taken by the Corporation is justified. On the evidence adduced by the parties before the Labour Court, the Labour Court has power to appreciate the entire evidence.

7. The Apex Court in the case of The workmen of M/s. Firestone Tyre and Rubber Co. of India P. Ltd. Vs. The Management and others1 (Firestone Tyre) has summarized the principles governing the jurisdiction of the Tribunal when adjudicating the disputes relating to dismissal or discharge and at paragraph No.27 has held as under: “27. From those decisions, following principles broadly emerge:- (1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal., the latter has power to see if action of the employer is justified. 1 AIR 1973 SC 1227 - 6 - (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the, findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to, adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other - 7 - hand, the issue about the, merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his, action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee - 8 - and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen, 1971-1 SCC 742 = (AIR 1971 SC 2171) within the judicial decision of a Labour Court or Tribunal”

8. The Apex Court in the case of Uttar Pradesh State Road Transport Corporation Vs. Gajadhar Nath2 (Gajadhar Nath) has held that in terms of Section 11A of the ID Act, if the domestic enquiry has been held and the finding of the misconduct is recorded, the authorities under the Act have full power and jurisdiction to reappraise the evidence and to satisfy themselves whether the evidence justifies the 2 (2022) 3 SCC 190 - 9 - finding of misconduct, but where an enquiry is found to be defective, the employer can lead evidence to prove misconduct before the authority and the Apex Court placed reliance on the decision reported in the case of Firestone Tyre stated supra.

9. On the touchstone of the principles laid down by the Apex Court, this Court needs to be looked into as to whether the Labour Court has considered the evidence of the parties while confirming the order of dismissal. The settled proposition of law is that, the Court should not interfere unless it is illogical or suffers from procedural impropriety or is shocking to the conscience of the Court.

10. The management in order to justify the order of dismissal, examined M.Ws.2 and 3, who categorically deposed about the failure on the part of the workman to issue tickets to two group of passengers and also deposed about the involvement of the workman in serious default cases and in spite of giving opportunity to reform himself, he - 10 - has committed the offence. The Labour Court, considering the evidence of the management and having found that the witnesses stood the test of cross-examination and placing reliance on material evidence to the commission of misconduct on the part of the workman, arrived at a conclusion that the order of dismissal does not warrant interference and the imposition of punishment is not disproportionate to the misconduct.

11. The consideration of past record without apprising the workman will not amount to violation of principles of natural justice and the past conduct of the workman cannot be surprise to the workman and thus, this contention of the petitioner’s counsel cannot be accepted.

12. Insofar as contention of the petitioner that similar employees of the Corporation who had committed similar acts of misconduct were directed to be reinstated into service, taking a lenient and sympathetic view, the said contention of the petitioner’s counsel is not accepted as it is - 11 - settled that equality under Article 14 of the Constitution of India is a positive concept and cannot be enforced in a negative manner. Benefits extended to some person in an illegal or irregular manner cannot be claimed by others on the plea of equity. The Apex Court in the case of State of Bihar and Others vs. Kameshwar Prasad Singh and another3 has held that at paragraph No.30 as under: “30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, other cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh v. New Delhi Municipal Committee held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a 3 (2000) 9 SCC 94 - 12 - citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed: (SCC p. 465, para 9) “Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.” Again in Secy., Jaipur Development Authority v. Daulat Mal Jain this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding: (SCC pp. 51-52, para 28) “Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the - 13 - respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents.”

13. Even otherwise, each case depends upon the peculiar facts and circumstances of the case, the jurisdiction available to the Labour Court is when there is perversity in the order of the Disciplinary Authority and the punishment awarded by the Disciplinary Authority, unless shockingly disproportionate to the charges. The punishment of dismissal is for non-issuance of tickets to a group of passengers in spite of collecting fare and the workman was inflicted of serious default cases and opportunities were given to reform by imposing minor punishment. Hence, the order of dismissal by the Disciplinary Authority cannot be found fault with. The Apex Court, under identical circumstances in the case of - 14 - Devendra Swamy vs. Karnataka State Road Transport Corporation4, has held at paragraph No.7 as under: “7. The Division Bench of the High Court relied on the decisions of this Court in State of Haryana v. Rattan Singh, U.P. SRTC v. Basudeo Chaudhary and U.P. SRTC v. Subhash Chandra Sharma 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 dismissal imposed management on the workman was too harsh and undeserved, was a perverse finding and arrived at by ignoring the material as to previous acts of misconduct and punishments awarded appellant brought to the notice of the disciplinary authority and the Labour Court. We are also of the opinion that the gravity of the 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 4 (2002) 9 SCC 644 - 15 - record of the appellant fully justified the punishment awarded by the disciplinary authority.”

14. The Labour Court has rightly held that the misconduct of the workman is proved and order of dismissal is justified, therefore, the order of the Labour Court does not warrant any interference and accordingly, this Court pass the following: ORDER i. Writ Petition is dismissed. ii. Impugned order dated 01.02.2017, passed by the III Additional Labour Court, Bengaluru in I.D.No.07/2017 stands confirmed. S* SD/- JUDGE