ORDER
Subhash B. Adi, J.
1. Award dated 5th July 2007 in C.R. No. 72/2003 is called in question both by the workman as well as the Management.
2. The case of the workman is that, while he was working as a Clerk at Thithimathi branch, it is alleged that on 7.11.2001, the workman abused the customer and also tried to assault him. In connection with the said alleged incident, the workman was suspended on 24.11.2001. Thereafter, he was charge-sheeted on 13.12.2001. In response to the charge sheet, the workman gave his reply and thereafter, an enquiry was held. The Enquiry Officer gave a finding holding that, the charge is proved, The Disciplinary Authority considering the findings and the explanation of the workman, passed an order of dismissal.
3. Against the order of dismissal, the workman sought for reference of the dispute. The Central Government by order dated 15th December 2003 referred the matter to the Industrial Tribunal.
4. The Industrial Tribunal held that the enquiry is fair and proper and further held that the first charge is proved and second charge is not proved and by invoking the provisions of Section 11-A of the Industrial Disputes Act (hereinafter referred to as ‘the Act’), held that, the punishment is shockingly disproportionate to the charge alleged against the workman and reduced the punishment from the compulsory retirement to the reduction of three annual increments from the date of punishment with cumulative effect without continuity of service except for the purpose of terminal benefit and no backwages.
5. The award of the Industrial Tribunal is assailed by both the parties.
6. Sri. Prabhu, learned Counsel appearing for the Bank submitted that, the charge is proved and the punishment of compulsory retirement is ordered by the Disciplinary Authority, The Labour Court has held that the enquiry is lair and proper. If the enquiry is fair and proper and if there is no procedural error, there is no scope for the Industrial Tribunal to go into the findings of the Enquiry Officer and also into the quantum of punishment He submitted that the modifying the punishment was without any justification. In this regard, he submitted that, Clause 19.5 of Bipartite settlement provides for punishment in respect of gross misconduct He submitted that, indecent behaviour is a gross misconduct under Sub-clause (c) of Clause 4 of the said settlement.
7. He also submitted that the act of the workman has prejudicially affect the interest of the Bank and his misbehaviour with the customers has affected the reputation of the Bank. In support of his contention, he also relied on a decision in the matter of U.P. State Road Transport Corporation v. Vinod Kumar and submitted that once fairness of the enquiry is held valid, the Labour Court cannot examine the findings of the Enquiry Officer nor the quantum of punishment. He submitted that, there is only one charge levelled against the workman, that is the misbehaviour with the customer, which includes the attempt to assault the customer. However, the Industrial Tribunal has bifurcated the charge and alleged that there are two charges. Once the charge is held to be proved, there is no question of bifurcating the charge and hold that the part of the charge is not proved. In support of his contention, he relied on the evidence of MW-1 and MW-2. MW-1 is the customer, MW-2 is Bank official and he submitted that both of them have categorically stated that, the workman’s behaviour was unbecoming of an Bank employee. Once the charge is held to be proved, the scope for interference is very limited. As regards to the perversity, he submitted that, no perversity as such is proved before the Industrial Tribunal and there cannot be any allegation of perversity as the incident took place in the Bank and is witnessed by the Assistant Manager and he has stated before the Enquiry Officer and the Enquiry Officer based on the evidence has given a finding.
9. He also relied on two other judgments of the Apex Court in connection with the exercise of power under Section 11-A of the Act for the mitigating circumstances for the purpose of modifying or reducing the punishment in the matter of Bank of India and Ors. v. T. Jogram and Ors. in the matter of Mahindra & Mahindra Ltd. v. N.B. Naravade, etc.,.
10. Learned Counsel appearing for the workman submitted that the Industrial Tribunal has held that, the second charge is not proved. The first charge is only using of abusive language and that is also not proved by cogent evidence. The Charge of using abusive language does not warrant for major punishment such as compulsory retirement In this regard, she relied on the evidence of MW-1. MW-1 is the customer, though he has alleged that, abusive language was used, but in the cross-examination, he has stated that the workman had informed him not to talk loudly, as it will disturb him, The only allegation made by MW-1 is that, the workman shouted at him and asked to get out, and submitted, that by itself will not constitute grave misconduct nor amounts to acting prejudicial to the interest of the Bank or amounts to misbehaviour. He further submitted that, the Industrial Tribunal was not justified in imposing punishment of withholding of 3 increments, It is also submitted that, insofar as the charge No. 2 is concerned, there is no consistency in the statement of MW-1 and MW-2 and further, even the complaint alleged to have been given by the MW-1 was withdrawn and it has also come on record that, the complaint was given after 13 days and on the same day, the complaint was withdrawn. In the absence of proving the second charge and in the absence of the material supporting the first charge, the findings of the Enquiry Officer are apparently perverse. The Industrial Tribunal has tailed to exercise its power and while considering the mitigating circumstances, it ought to have considered the nature of evidence, nature of misconduct alleged against the workman and evidence in support of it Without considering the same, the Industrial Tribunal though reduced the punishment but has awarded withholding of 3 annual increments with cumulative effect, which is a harsh punishment on the workman.
11. In support of the charge, MW-1 was examined in this case. MW-1 in the examination-in-chief has stated that, he had gone to the Bank on 7.11.2001 at about 5 p.m. and he was talking to the Assistant Manager in connection with some loan transaction. At that time, the workman used abusive language and hurt his feelings. When he went out and sitting in shop outside the bank, the workman came with metal plate saying that he would loll him. In this regard, he brought the said incident to the notice of the Bank official by giving in writing. However, he states that no complaint was given, as he was under the impression that, the workman will improve himself and regret for the incident, when he did not do so, he filed a complaint. But later on, the workman realized his mistake and stated that a lenient view may be taken against the workman. He admits in the cross-examination that, workman had told him not to disturb him in the Bank. However, he further states that the workman shouted at him and asked him to get out MW-2 is the Assistant Manager, has stated that, the workman misbehaved in the Bank and he supported the version of MW-1. However, he also admits that, it was at non-public business hours, the customer had come i.e., between 4.30 p.m. to 5 p.m. It has also come in the evidence of MW-2 that, when the customer was asking the telephone number from him, the workman got irritated. But this type of version is not forthcoming in the evidence of MW-1.
12. Insofar as the allegation that the workman took the name plate and went outside to the shop where the customer was sitting and threatened him is concerned, MW-1 states that, he had not given complaint though such incident had happened, thinking that the workman would improve himself whereas, MW-2 – Assistant Manager states that, the workman chased the customer outside the Bank with the number plate. Though these are not the discrepancies, which are very material for the purpose of domestic enquiry. It has also come on record that MW-1 though makes serious allegation of threatening to kill, admittedly, no complaint was filed for 13 days. Even the complaint filed was withdrawn on the same day. This is not disputed. Further, the incident alleged to have happened outside the Bank is not proved by evidence. MW-1 though stated in the examination-in-chief, but he also states that the complaint was filed after some days. But the complaint admittedly having been withdrawn, it appears that the alleged incident was not seriously taken by the customer himself. Except the customer, there is no other witness, who states about the incident outside the Bank. As far as MW-2 is concerned, he only speaks what had transpired in the Bank and his evidence is not much material for the proof of the alleged second incident The evidence of MW-1 and MW-2 supports to some extent only in respect of use of abusive language, however, there is no evidence for the allegation as to what transpired outside the Bank, in such circumstances, the Disciplinary Authority has passed the order of punishment based on both the allegations, as such, the order of punishment amounts to harsh punishment If the part of the charge is not supported by cogent evidence, the findings of the Enquiry Officer to that extent appears to be not supported by the same.
13. The Industrial Tribunal, no doubt, has held that the incident of using abusive language is fully proved and is supported by the evidence of MW-1 and MW-2 and it is also clear from the suggestion made by the workman to MW-1 that said abusive language was used because the customer had disturbed the workman. If the abusive language is used to the customer, no doubt, it is also indisciplined behaviour on the part of the workman. The workman not only is required to behave properly, but he is also required to maintain discipline in the Bank. The indisciplined behaviour, if it is misconduct, in my opinion, the Industrial Tribunal was justified in holding that the workman had committed misconduct of that nature.
14. Insofar as quantum of punishment is concerned, Section 11-A of the Act confers power on the Industrial Tribunal to consider the mitigating circumstances to find out as to whether the punishment is grossly disproportionate to the charge alleged against the workman or the official. In this regard, learned Counsel for the Management had relied on two decisions referred to above. The Apex Court in the matter of Mahindra & Mahindra Ltd. (supra) has considered the aspect of exercise of power under Section 11-A of the Act at para-20 and observed thus:
20. …The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which requires the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment In the absence of any such factor existing, the Labour Court cannot by way of sympathy atone exercise the power under Section 11-A of the Act and reduce the punishment….
From the observation made by the Apex Court, it is clear that, in order to invoke the provisions of Section 11-A, the mitigating circumstances are: necessary and finding as to the proportionality of the punishment as against the gravity of the misconduct As observed above, the punishment imposed by the Disciplinary Authority is based on two allegations, one is the incident inside the Bank and another incident is outside the Bank. The Disciplinary Authority has imposed the punishment of compulsory retirement. The Industrial Tribunal had considered the perversity of the findings by holding that the second part of the charge is not proved, and in the absence of any material to prove the second part of the charge or second charge, the punishment of compulsory retirement is harsh and is shockingly disproportionate to the gravity of misconduct Using of abusive language by itself does not attract the major punishment, In this regard, the Tribunal at para 12 has considered the circumstances, and found that the second allegation in the charge is not proved. These circumstances, in my opinion, arc the mitigating circumstances to invoke the provisions of Section 11-A of the Act. The Industrial Tribunal has judiciously scrutinized the circumstances and has found that the punishment is shockingly disproportionate to the gravity of misconduct. The Apex Court in similar circumstances has considered the mitigating circumstances in various cases and if the punishment appears to be shockingly disproportionate to the charge alleged against the workman, no fault could be found in exercise of power under Section 11-A of the Act This Court in a judgment in the matter of The Management of L & T Komatsu Limited v. Larsen & Toubro Employees Association, considering the scope of Section 11-A and has referred to the decision of the Apex Court at para-62 in the matter of Mahendra Nissan Allwyns Ltd. v. M.P. Siddappa and Anr. reported in 2000(1) LLJ 424 and has observed at para-69 as under
69. It is a fundamental principle of justice that the punishment should be commensurate with the guilt. Judex acquitatem semper spectare debot A Judge ought always to have equity before his eyes. It is a well recognised principle of jurisprudence which permits penalty to be imposed for misconduct, that the penalty must be commensurate with the gravity of the offence charged. Before promulgation of Section 11A urns considered the prerogative of the employer to inflict the punishment on the delinquent workman which was beyond the jurisdiction of the industrial adjudication to interfere. However, the Supreme Court made inroads into this prerogative of the employer to inflict where punishment was shockingly disproportionate to the proved act of misconduct.
15. It is well-settled law that, before Section 11-A was inserted in the Industrial Disputes Act, there was no provision to consider the mitigating circumstances to reduce the punishment and it was the prerogative of the employer to impose punishment and there was no industrial adjudication on the said aspect, Now in view of Section 11-A of the Act, looking into the circumstances and the punishment imposed by the Management, I feel that the punishment is disproportionate to the gravity of misconduct. In this case, having found that the allegation in the second part of charge is not proved and only first part is proved and the second part lacks the evidence, the Industrial Tribunal considering all these circumstances has judiciously passed a well-reasoned award holding that the punishment of compulsory retirement is harsh and in the place of compulsory retirement, the punishment of withholding of three increments without any backwages and also without continuity of service would be sufficient punishment Since once the Labour Court exercises discretionary power judiciously under Section 11-A, the scope of interference with the said finding under Article 226 is also limited. Nevertheless, considering the overall evidence and also the material, I find that the Industrial Tribunal has passed a just and appropriate award, which does not call either at the instance of the Bank or at the instance of the workman. Hence, I fully concur with the findings of the Industrial Tribunal, and I find no reason to interfere with the findings.
Accordingly, both the writ petitions fail and are dismissed.