JUDGMENT
Markandeya Katju, C.J.
1. This appeal has been filed against the impugned judgment of the learned Single Judge dated 18.03.2005, by which he has dismissed the Writ Petition.
2. Heard learned counsels for the parties and perused the record.
3. The petitioner is a company registered under the Companies Act and it inter-alia owns the factory, M/s Swatantra Bharat Mills, in which the Respondent No. 1 was working as a Clerk. He was charge-sheeted vide charge-sheet dated 29.10.1990, on account of his refusal to obey the orders of his superior and to perform his assigned duties which amounted to misconduct. His explanation was not found satisfactory and hence a domestic enquiry was held in which he was given full opportunity for hearing. The enquiry officer submitted his report finding the employee to be guilty of the charges. True copy of the enquiry report is Annexure P2 to the Writ Petition. The case of the workman was that he was unable to report for duty and his house was far off from the mill and he was physically handicapped. He stated that he could only report for duty during the usual duty hours and he cannot come for duty in shifts. The case of the management is that the workman was asked to report for duty in shifts due to the exigency of the work. The management repeatedly informed the workman vide letters dated 16.08.1990, 12.09.1990 and 27.09.1990 to come for work, but to no avail. In his cross-examination the workman admitted that he was able to walk. Hence the enquiry officer was of the view that his physical disability was not of such a nature that he could not report for duty in shifts. The enquiry officer also observed that it is not a condition of the employment that the management shall provide transportation facility to the employees. The workmen have to arrange for their own transportation as may be convenient to them so that they can perform their duties. The workman was given only day shift duties, but he did not accept the same. Hence he was held to be guilty of the charges and his service was terminated vide letter dated 05.06.1991, Annexure 3 to the Writ Petition.
4. The workman raised an industrial dispute, which was referred to the Labour Court. True copies of the Statement of Claim and Written Statement are Annexure P4 & Annexure P5 to the Writ Petition. The Labour Court vide order dated 7.4.2003 held that the enquiry was conducted by the management against the workman in a just and fair manner and there was no violation of natural justice, Annexure P6 to the Writ Petition.
5. Thereafter additional evidence was adduced and vide order dated 4.6.2003 the Labour Court held that the punishment imposed on the workman was disproportionate to the charges proved against him. Hence it substituted the punishment of termination by the punishment of stoppage of two wage increments and payment of 50% of back wages from the date of retirement, i.e., from 5.6.1991 to 31.07.1991.
6. Aggrieved the appellant filed the Writ Petition which has been dismissed by the learned Single Judge and hence this Writ Appeal.
7. In the written statement filed by the appellant before the Labour Court it was stated in paragraphs 9 to 11 of the same as follows:-
That the contents of paragraph 9 are wrong, vague and denied. It is wrong to allege the Management has harassed the applicant. It is submitted that the Management was perfectly justified and entitled to direct the applicant to work/perform his duties in shifts like all other employees as per exigencies of work. The excuse of the applicant for not performing works in shifts was accordingly not justified. It is pertinent to mention that there was no medical certificate issued to the applicant to the effect that he could not perform his duties in the shift. However, if the applicant was having continuous ill health in that case otherwise also the applicant could be discharged on the ground of having continuous ill health as admitted by the Applicant. It is submitted that the applicant was informed by the Management vide its letter dated 12.09.1990. “Your legal objection to doing duties in shifts can only be with regard to the morning shifts and not to other two shifts.” However, the applicant totally refused to perform duties in any shift which clearly shows that the applicant was trying to avoid performing duties in shifts on various untenable grounds.
That the contents of paragraph 10 are wrong, vague and denied besides being the wild imagination of the applicant. It is totally incorrect that it was not possible for the applicant to attend his duties in shifts. It is submitted that number of employees from far off places are performing their duties in shifts by using public transport. As such the request of the applicant for being provided with duties in permanent day shift only was not valid and justified. However, the management as stated in above para had informed the applicant to report for his assign duties in Time Office so that his case may be considered for day shift only but the applicant unjustifiably and with malafide intention did not report for the duties in Time Office. The representations/letters had been duly replied to after considering all the relevant circumstances.
That the contents of paragraph 11 as stated are wrong, vague and misconceived and hence denied. It is wrong to allege that the explanation submitted by the applicant to the charge-sheet dated 29.11.1990 was satisfactory or that the enquiry was an eye wash. It is submitted that the applicant continued to disobey the lawful and reasonable orders of the superiors as well as management to perform his duties in shifts, the Management was left with no option but to issue a charge-sheet to the applicant for committing the aforesaid misconduct. The explanation submitted by the applicant was not found to be satisfactory and after due consideration, it was decided to hold an enquiry against the applicant. It is wrong to allege that the Management had already decided to dispense with services of the applicant.
8. A perusal of the above averments show that the respondent/workman refused to perform duty in shifts. The Respondent was a clerk and obviously he did not have to move around in his allotted duty, hence his plea about disability appears to be a mere excuse for not obeying the lawful orders of the management.
9. The learned Single Judge has held that the punishment is shockingly disproportionate. We do not agree. It is the duty of a workman to carry out the lawful orders of the management, and it is not for the workman to prescribe for himself the kind of work he will do. If the stand of the workman is accepted, then every workman will become a law unto himself and will himself decide what are his duties.
10. It is true that if the punishment is shockingly disproportionate to the charges, the termination order can be set aside, but in this case we are of the opinion that it is not shockingly disproportionate.
11. The petitioner has been given a full and fair hearing by the enquiry officer and in accordance with the principles of natural justice, and indeed this has been observed by the Labour Court itself in its order dated 7.4.2003 in which it was held that the enquiry was conducted in a just and fair manner.
12. The misconduct proved against the workman was of a serious nature as he persistently refused to perform the duties assigned to him. An employee is expected and required to perform his duties in accordance with the lawful orders of his superior, and he cannot refuse to perform the duties merely on account of hardship in getting transportation etc. The Appellant was performing clerical duties which did not require much locomotion, and hence we cannot understand why he objected to do his duties.
13. The Supreme Court in Om Kumar and Ors. v. Union of India, (2001) 2 SCC 386 while considering the quantum of punishment/ proportionality has observed that in determining the quantum, the role of the administrative authority is primary and that of the Court is secondary and confined to see if the discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities have not omitted any relevant materials nor any irrelevant fact taken into account nor any illegality committed by the authority nor the punishment awarded was shockingly disproportionate. The punishment was awarded in the instant case, after considering all the relevant materials and, therefore, in our view, the interference by the Labour Court was not called for.
14. The same view was taken by the Supreme Court in V. Ramana v. A.P. SRTC and Ors., (2005) 7 SCC 338.
15. The Appeal is allowed and the impugned judgment of the learned Single Judge as well as the award of the Labour Court are set aside and the order of termination dated 05.06.1991 is held valid.