CASE NO.: Appeal (civil) 3439 of 2003 PETITIONER: Employers,Mgmt., M. Colliery M/s BCCL Ltd. RESPONDENT: Bihar Colliery Kamgar Union Through: Workmen DATE OF JUDGMENT: 22/02/2005 BENCH: N. Santosh Hegde & S.B. Sinha JUDGMENT:
J U D G M E N T
WITH
C.A. NO. 1347 OF 2005
(arising out of SLP (C) No. 1195 of 2004)
SANTOSH HEGDE, J.
The Management of Muriadih colliery of M/s BCC Ltd.
is in appeal against the award made by the Central Industrial
Tribunal (No.2), Dhanbad dated 11th of October, 1991 in an
industrial dispute referred to it under Section 10 of the
Industrial Disputes Act, 1947.
By the said award the Tribunal upholding the misconduct
of the two workmen set aside the punishment of dismissal and
directed reinstatement of the said workmen without payment of
back wages and with permanent stoppage of one increment.
The Tribunal also directed the workmen to give the continuity
of their service.
The writ petition filed by the Management as against the
said reduction in sentence before the learned Single Judge and
an appeal before the Division Bench of the Patna High Court
having been dismissed, the Management appellant is in appeal
before us.
The brief facts necessary for the disposal of this appeal
are as follows:
The two workmen were working as Pump Operator and
Trammer respectively under the management of Muriadih
colliery of M/s BCC Ltd. . On 11.5.1983 at about 11.15 a.m. a
mob consisting of about 200 persons variously armed with
deadly weapons like lathi, Bhalla, bow and arrow came to the
office premises of General Manager, Barora area and amongst
them the two respondent workmen attacked Shri H.N. Tripathi,
the General Manager of the area with a lathi on his head as a
result of which he sustained bleeding injury and he had to be
admitted to a hospital. These workmen with the rest of the
mob further assaulted other officers of Barora area including
one Shri K.K. Khadia, Area Manager, Personnel, Shri K.
Bhardwaj, Inspector CISF, Sher Singh, Havaldar and Bhim
Singh. The motive for the said attack is stated to be an accident
that occurred previously in regard to bursting of a water tank
causing death of two persons.
A show cause notice was issued to these workmen to
reply and the explanation submitted by the workers was not
found satisfactory. In the domestic inquiry that was conducted
the respondent workmen were found guilty of misconduct
charged against them and on the recommendation of the Inquiry
Officer the services of the concerned workmen were terminated
w.e.f. 14.11.1984.
The said order of dismissal after inquiry gave rise to an
industrial dispute as stated above. In the industrial dispute the
workmen challenged the fairness and validity of the domestic
inquiry. The Tribunal having come to the conclusion that the
inquiry conducted was not fair, gave opportunity to lead
evidence to the parties and after considering the material
produced in the said inquiry came to the conclusion that the
alleged incident of assault by the workers was proved and the
two workmen concerned found guilty of the misconduct alleged
against them.
Having taken into consideration the gravity of the
offence of physical assault on the Managing Staff of the colliery
with deadly weapons and causing injuries to them and having
come to the conclusion that the Management has been able to
prove most of the charge leveled against the workmen, the
Tribunal proceeded to interfere with the punishment of
dismissal observing thus:-
“I am to hold further that the concerned
workmen were members of the mob and they also
caused injury to Shri Tripathy and others. But
definitely they had never intended to kill Shri
Tripathy as held above. Since there was casually
on account of bursting of water tank it was natural
for the workmen in general to go in agitation
against the management and at that time the mob is
mostly guided by their own emotions and feelings.
In the circumstances of the case I am of the view
that the punishment of dismissal will be harsh
punishment which definitely amount to hanging of
an accused after criminal trial. For causing simple
hurt even to the high officials like the General
Manager the workmen should not be dismissed
rather some alternative punishment like stoppage
of increment which is also one of the major
penalty should be inflicted. I also find that there is
no previous history of any such act on the part of
the concerned workmen. In the circumstances, I
feel that the needs of justice can be met by
reinstating the concerned workmen in their service
without payment of back wages and with
permanent stoppage of one increment. However,
they will get continuity of their service.”
As stated above being aggrieved by the interference with
the punishment awarded by the Management after coming to
the conclusion that the misconduct alleged is established, the
appellant preferred writ petition before the Ranchi Bench of the
Patna High Court. The learned Single Judge of the Patna High
Court dismissed the said writ petition agreeing with the finding
of the Tribunal observing thus:-
“Certainly the assault to the senior officials
that too in the rank of General Manager by the
workmen in discharge of their duties is a gross
misconduct and in such a situation officials who
are managing the affairs are being demoralised.
But in the instant case the Tribunal has recorded a
finding that there was a mitigating circumstance
and the action of the two workmen were neither
deliberate or intentional but it was in a sudden spur
of the moment overwhelmed by the mob mentality
the workmen assaulted these senior officials only
for the reason that on the same day there was a
bursting of a tank in which some workmen died in
the accident which created an impression to the
fellow workers that due to negligence on the part
of the Management, such accident took place. So
far the aforesaid reason alone, this occurrence took
place and it is not a case of personal vendetta or a
gross act of in discipline or insubordination. In
that view of the matter, the Tribunal was perfectly
justified in modifying the extreme punishment of
dismissal and both the workmen though definitely
guilty, were also awarded sufficient punishment as
no back wages were awarded also an increment
was withheld. In that view of the matter and in
such mitigating circumstance, I am not inclined to
interfere with the order of the Tribunal.
Accordingly this Writ application is dismissed, but
without costs.”(Emphasis supplied)
The appeal filed against the said order before the
Division Bench of the Jharkhand High Court also having failed
on the same ground as stated above, the appellant is before us.
The only question for our consideration in this appeal is
whether the Tribunal was justified in interfering with the
quantum of punishment awarded by the Management after
coming to the conclusion that the finding of the domestic
inquiry was fair and legal or whether the so called mitigating
circumstances recorded by the Tribunal would be a sufficient
ground to reinstate the concerned workmen.
Shri A. Sharan, Addl. Solicitor General appearing for the
Management contended that the accident on the previous day
had nothing to do with the General Manager and others who
were assaulted and assault in question did not take place
immediately after that accident but was a premeditated attack
with deadly weapons causing grievous injuries (according to
the learned counsel). The learned Addl. Solicitor General
pointed out that the mitigating circumstances recorded by the
Tribunal that the workmen definitely did not have an intention
to kill Shri Tripathi is a frivolous excuse for reducing the
sentence. He further submitted that the nature and manner of
attack in the presence of the security forces itself showed that
the attack on the managerial staff of the appellant was
premeditated and deliberate attack to undermine the discipline
in the organization. Such indiscipline could not be exonerated
on the excuse of emotions and feelings of workmen. The
learned Addl. Solicitor General also pointed out from the order
of the learned Single Judge that he had recorded a finding that
the conduct of the workmen was ‘a gross misconduct’ and had
even recorded a finding that because of the attack, the officials
have been demoralised. In such a fact situation it is contended
that the reduction of punishment of dismissal into stoppage of
one increment is perverse.
Unfortunately, none appeared for the workmen in this
case.
It is well established principle in law that in a given
circumstance it is open to the Industrial Tribunal acting under
Section 11 (A) of the Industrial Disputes Act, 1947 has the
jurisdiction to interfere with the punishment awarded in the
domestic inquiry for good and valid reasons. If the Tribunal
decides to interfere with such punishment it should bear in
mind the principle of proportionality between the gravity of the
offence and the stringency of the punishment. In the instant
case it is the finding of the Tribunal which is not disturbed by
the writ courts that the two workmen involved in this appeal
along with the others formed themselves into an unlawful
assembly, armed with deadly weapons, went to the office of
General Manager and assaulted him and his colleagues causing
them injuries. The injuries suffered by the General Manager
were caused by lathi on the head. The fact that the victim did
not die is not a mitigating circumstance to reduce the sentence
of dismissal.
Considering the question of proportionality of
punishment this Court in the case of Management of
Krishnakali Tea Estate Vs. Akhil Bharatiya Chah Mazdoor
Sangh & Anr. [2004 (7) SCALE 608], a case involving
misconduct of lesser liability held:
“This leaves us to consider whether the
punishment of dismissal awarded to the concerned
workmen de hors the allegation of extortion is
disproportionate to the misconduct proved against
them. From the evidence proved, we find the
concerned workmen entered the estate armed with
deadly weapons with a view to gherao the
Manager and others in that process they caused
damage to the property of the estate and
wrongfully confined the Manager and others from
8.30 p.m. on 12th of October to 3 a.m. on the next
day. These charges, in our opinion, are grave
enough to attract the punishment of dismissal even
without the aid of the allegation of extortion. The
fact that the Management entered into settlement
with some of the workmen who were also found
guilty of the charge would not, in any manner,
reduce the gravity of the misconduct in regard to
the workmen concerned in this appeal because
these workmen did not agree with the settlement
which others are agreed instead chose to question
the punishment.”
Similarly in the case of The Management of
Tournamulla Estate Vs. Workmen [(1973) 2 SCC 502], this
Court while considering the denial of gratuity to a dismissed
workmen held:
“If a workman is guilty of a serious misconduct
such as acts of violence against the management or
disorderly behaviour in or near the place of
employment, which though not directly causing
damage, is conducive to grave indiscipline, then
his gratuity can be forfeited in its entirety. ”
From the above it is clear that this Court has considered
an act of violence as an act of grave misconduct calling for
stringent punishment.
From the facts narrated herein above, the ratio laid down
in two cases referred to herein above amply applies to the
appeal in hand. The courts below by condoning an act of
physical violence have undermined the discipline in the
organisation, hence, in the above factual backdrop, it can never
be said that the Industrial Tribunal could have exercised its
authority under Section 11 (A) of the Act to interfere with the
punishment of dismissal. Substituting the order of dismissal in
such a case withholding of one increment in our opinion is
wholly disproportionate to the gravity of misconduct and is
unsupportable.
Herein it is worthwhile to recall the finding of the learned
Single Judge who has rightly held that the assault on the senior
officials by the workmen in discharging of their duties is a
misconduct and in such a situation officials who are managing
the affairs will be demoralised.
This being the factual situation we are of the opinion that
the orders of the courts below modifying the punishment of
dismissal is unsustainable.
For the reasons stated above, the impugned orders of the
Tribunal, Single Judge of the High Court and the Division
Bench of the High Court are set aside and the order of dismissal
of the appellant-Management in regard to the respondent –
workmen concerned is upheld. The appeal is allowed.
C.A. NO. 1347 OF 2005
Leave granted.
In view of the order made by us in Civil Appeal No. 3439
of 2003 this appeal is also allowed.
