JUDGMENT
M.Y. Eqbal, J.
1. Petitioner workmen of Hindustan Malleables and Forging Ltd. Dhanbad have challenged the order dated 5-9-1991 and the award dated 24-8-1992 passed by Presiding Officer. Labour Court, Bokaro Steel Bokaro in Reference Case No. 12 of 1983, whereby it has been held that the action of the Management in dismissing the workmen namely, Shri Safal Mian and others is justified and they are not entitled to any relief.
2. It appears that the Government of Bihar by Notification dated 26-4-1983 referred the following dispute to the Labour Court for adjudication :
“Whether the dismissal of Sarbsri Safal Mian, Devkishun Yadav, Dwarika Rajak, Sibu Roy, Shanti Ram Mahto, Mohammad Ali, Mohammad Ismail Ansari, Nizamuddin Ansari-1, Nizamuddin Ansari-2, Maksud Mianh, Shital Prsad Chaudhary, Mohd. Zamil Khan, Nageshwar Singh, Mantu Mahto, Mahadeo Rawani, Kanhai Lal Mahto, Nanu Ram Mahto and Damu Roy-workmen of M/s. Hindustan Malleables and Forgins Ltd., Bhuli, Dhanabad is proper and justified? If not, whether they are entitled to reinstatement and/or any other relief?”
3. The concerned workmen were charge-sheeted in the month of April, 1983 for committing serious misconduct of slowing down of work, wilful insubordination, habitual indiscipline and instigating others to indulge in slowing down of works. The workmen submitted their replies but that were not found satisfactory and consequently an inquiry committee was constituted by the Management to enquire into the charges leveled against them. One Mr. R.R. Bhattacharya Advocate Dhanabad was appointed as enquiry officer for conducting domestic enquiry. The enquiry committee conducted the enquiry and submitted its report holding that delinquent workmen were guilty of the charges drawn up against each of them on the basis of proved misconduct. On the basis of the report the concerned workmen were dismissed from the service by the management after taking approval from the Managing Director.
4. The case of the Management is that out of 18 concerned workmen, one workman named Damu Rai already died and a reference on behalf of a dead person cannot subsist. Similarly, workman Shri Shanti Ram Mahto settled the dispute with the management and sworn affidavit to the effect that he has no dispute with the management over his dismissal from service and as such reference is invalid against that persons. On the other hand, the case of the workmen is that they were the permanent workers of M/s. Hindustan Malleables and Forgings Ltd. since long with unblemished record of service. The management is treating them as bounded labour and paying them wages much below the rates of Engineering Wage Board for which they started Bihar Engineering Kamgar. Union which enraged the management and they were issued false, frivolous, fictious and motivated charge-sheets and suspended them without conducting any preliminary enquiry, The Union served a strike notice challenging the illegal suspension order and in pursuance thereof conciliation proceeding was initiated and during the pendency of conciliation proceeding the management dismissed all the concerned workmen without taking prior permission of the conciliation officer for which a case was filed by the Assistant Labour Commissioner and the same is pending before the Patna High Court, Ranchi Bench. The concerned workmen further assailed the inquiry report submitted by the inquiry committee as being perverse and perfunctory and the findings are wholly illegal, arbitrary and unjustified.
5. It appears that on the prayer of the management the fairness, propriety and justification of the domestic enquiry conducted against the workmen was taken up as a preliminary issue and decided in favour of the management in terms of order dated 5-9-1991 holding that a proper enquiry was conducted by the employer and a correct finding has been arrived at regarding misconduct. The Labour Court, therefore, proceeded to decide the question whether punishment of dismissal from service was disproportionate to the charges leveled against the workmen and the same will amount to victimization. The Labour Court is of the view that slow down tactics by the workmen has caused serious loss to the company and production record during the years ended 31st December, 1972 was hardly 40% of the normal and it became half during the year 1973. The Labour Court therefore, held that the concerned workmen have been found guilty of serious misconduct and the management dismissed them on the proved charges of misconduct after holding fair and proper enquiry against them.
6. Mrs. M.M. Pal, learned Counsel appearing for the appellants assailed the impugned order and award passed by the Labour Court as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that the domestic enquiry conducted by the Enquiry Officer is absolutely erroneous in law and in violation of the standing order inasmuch as enquiry was to be conducted by an officer or officers of the Management and not by an Advocate who is outsider of the Company. Learned Counsel then submitted that the enquiry was conducted in violation of the principles of natural justice and the management was actually based and prejudiced against the workmen for their trade union activities and therefore, affiliation to the Bihar Engineering Kamgar Union. Learned Counsel relied upon the decisions of the Supreme Court in the case of “Dunlop Rubber Co. (India) Ltd. v. Their Workmen, (AIR 1965 SC 1392, in the case of “The Workmen of Firestone Tyre & Rubber Co. of India Pvt. Ltd. v. The Management and Ors.“, (AIR) 1973 SC 1227, in the case of “Workmen of Bharat Fritz Warner (P) Ltd. v. Bharat Fritz Werner (P) Ltd.“, (AIR) 1990 SC 1054 and in the case of “B.C. Chaturvedi v. Union of India and Ors.“, (AIR 1996 SC 484.
7. On the other hand, Mr. A. Sen learned Counsel for the Management submitted that the concerned workmen participated in the domestic enquiry and the charges have been proved against them. The Labour Court also decided the fairness and propriety of the domestic enquiry as preliminary issue and it was held that the charges have been proved and the enquiry was fair and proper. Learned Counsel for the petitioner submitted that non of the charge-sheeted witness took pain to appear in the witness box and the Labour Court, therefore, rightly decided the issue against the concerned workmen.
8. I shall first deal with the main issue raised by Mrs. Pal as to whether domestic enquiry and the enquiry report is vitiated in law for the reason that in violation of the standing order an Advocate was appointed as an enquiry officer who conducted enquiry and submitted ex parte report. In order to appreciate the submission of the learned Counsel for the petitioner, it would be useful to quote Clause 20 of the Standing Order, which reads as under:
“Procedure for dealing with cases of misconduct:
(a) If misconduct is alleged against a workman the management before taking action against the workman will hold an enquiry by an officer or officers appointed for the purpose. The worker charged with misconduct will be afforded a reasonable opportunity of explaining and defending his actions. Any such enquiry may relate to alleged acts of misconduct of several workmen wherein the opinion of the Management, it is convenient to hold such an enquiry for several workmen together.
(b) A workmen charged with misconduct may be suspended forthwith from duty for the alleged misconduct provided that the period of suspension shall not exceed 14 days.
(c) The order of suspension shall be in writing and will set out in general terms, as far as possible, the misconduct alleged against the employee and shall take effect immediately on communication thereof to the workman. The suspended workman shall not during the period of suspension enter the factory except will the special permission of the management.”
9. From perusal of the aforesaid provisions, it appears that before taking any action on the alleged misconduct of the workman, the management is obliged to hold an enquiry by an officer or officers appointed for the purpose. The Labour Court is of the view that there is no embargo in the said provision against the management to appoint any outsider for conducting enquiry. Anybody who is appointed for conducting enquiry becomes the enquiry officer. The Labour Court observed :
The learned Counsel then took another point and argued that the domestic enquiry is vitiated in view of the Clause 20 of the Standing Orders (Ext. M-5) which says that the enquiry officer must be an officer of the company and the enquiry officer Sri R.R. Bhattacharya being an Advocate and an outsider had no authority to conduct an enquiry. In my opinion this argument of the learned Counsel for the workmen is flimsy and less mehited. Clause 20 (a) of the Standing Orders says inter alia, that if misconduct is alleged against a workman the management before taking action against the workman hold an enquiry by an officer or officers appointed for the purpose. There is no embargo against the management to appoint any outsider for conducting enquiry. Anybody who is appointed for conducting enquiry becomes enquiry officer. M.W. 2 R.R. Bhattacharya has stated that he was appointed by the management for conducting enquiry against the charge-sheeted workmen. In the present case around 20 workmen of management were directly concerned with the alleged misconduct, therefore, the management in order to uphold their position thought it just and proper to appoint an independent person to be an enquiry officer. In that view of the matter there is no illegality in the appointment of Sri R.R. Bhattacharya Advocate as an enquiry officer by the management.”
10. Now I shall discuss the decision relied upon by Mrs. Pal, learned Counsel for the petitioner. In the case of “The Dunlop Rubber Co. (India) Ltd. v. Their Workmen” (AIR 1965) SC 1382, the fact of the case was that in the domestic enquiry held by Management the workmen were insisting for the assistance of a representative of their own unrecognized Union whereas the Standing Orders of the Company clearly provides that at such domestic enquiries only a representative of a Union which is registered under the Indian Trade Union Act and is recognized by the company can assist. It was held that there can be no denial of natural justice if the request of the workmen who insist to be assisted by a representative of their own unrecognized Union with the object of indirectly obtaining recognition to their union is refused.
11. In the case of “Firestone Tyre & Rubber Co. Ltd v. The Management and Ors., (supra) the Supreme Court was considering the scope of Section 11A of the Industrial Disputes Act. It was held by their Lordships that even where dismissal of a workman by an employer on the ground of misconduct is preceded by proper and valid domestic enquiry, Section 11A empowers the labour Court or the tribunal to reapprdise the evidence and examine the correctness of the finding. It was further held that mere fact that no enquiry or defective enquiry has been held by the employer does not render the dismissal of workman illegal. The right of employer to adduced evidence justifying his action for the first time in such a case is not taken away by the proviso to Section 11A of the said Act.
12. In the case of “Workmen of Bharat Fritz Werner (P) Ltd. v. Bharat Fritz Werner(P) Ltd., (supra) the Supreme Court was considering the question of validity of the order of dismissal on account of misconduct involving acts of threatening of highest executive with dire consequences, wrongfully confining him in his room and compelling him to withdraw certain notice. Their Lordship held :
“It is obvious that no hard and fast rule can be laid down in dealing with this
problem. Each case must be considered on its own merits, and in reaching final
decision an attempt must be made to reconcile the conflicting claims made by
the employee and the employer. The employee is entitled to security of service
and should be protected against wrongful dismissals, and so the normal rule
would be reinstatement in such cases. Nevertheless in unusual or exceptional
cases the tribunal may have to consider whether, in the interest of the industry
itself, it would be desirable or expedient not to direct reinstatement. As in many
other matters arising before the Industrial Courts for their decision this question
also has to be decided after balancing the relevant factors and without adopting
any legalistic or doctrinaire approach.”
13. In the case of “B.C. Chaturvedi v. Union of India and Ors.“, (supra), the Supreme Court was considering a case where a public servant in possession of assets disproportionate to his known sources of income was charge-sheeted and was imposed punishment by way of dismissal from service. Their Lordships observed:
“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 maintain 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 impose 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.”
14. In the case of “Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union and Ors.“, (1999) 1 SCC 626, their Lordships held that an employee has no right to representation in the departmental proceeding by another person or a lawyer unless the service Rules specifically provides for the same. Provision in Draft Standing Orders permitting the delinquent to the represented in domestic enquiry by a fellow workman of the same establishment is neither unreasonable nor unfair.
15. As noticed above, it is not the case of the concerned workman that they were not allowed to be represented through their recognized Union. The contention of the petitioner is that domestic enquiry could not have been conducted by a Advocate. From bare reading of the Standing Order, it is clear that no embargo or restriction has been imposed for conducting domestic enquiry by an advocate so appointed by the Management. If the management appoints its own Advocate for conducting domestic enquiry, that cannot be held to be illegal and on that ground, enquiry cannot be vitiated. The Labour Court, therefore, rightly held that there is nothing illegal in the appointment of R.R. Bhattacharya, Advocate as an enquiry officer by the management.
16. Normally, lawyer must be presumed to be a man who can Act with sense of attachment and without bias or prejudice as he is trained in law and an enquiry therefore, cannot be said to be vitiated by mere fact that the enquiry was conducted by lawyer of the employer. In the case of “Saran Motors (P) Ltd. New Delhi v. Vishwanath and Anr., (1964) LLJ 139 (SC), the Supreme Court held that domestic enquiry conducted by the lawyer of the employer cannot be held that the enquiry officer is biased in favour of the employer. Their lordships observed :
“In our opinion, this view is completely erroneous and cannot be sustained. We have repeatedly pointed out that domestic enquiries in industrial relations must be fairly conducted and whenever we are satisfied that any enquiry was not fairly conducted or its conclusions were not supported by evidence, we have unhesitatingly ignored the findings recorded at such an enquiry and held that the tribunals must deal with the merits of the dispute for themselves; but it is impossible to accept the argument that because a person is sometimes employed by the employer as a lawyer, he becomes incompetent to hold a domestic enquiry, it is well-known that enquiries of this type are generally conducted by the officers of the employer and in the absence of any special individual bias attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer. If that be so, it is obviously unsound to take the view that a lawyer, who is not a paid officer of the employer, is incompetent to hold the enquiry, because he is the employer’s lawyer and is paid remuneration for holding the enquiry. Therefore, the first reason given by the tribunal for ignoring the findings of the domestic enquiry must be reversed.”
17. Similarly, in the case of “Dalmia Dadri Cement Ltd. v. Sri Murari Lal Bikaneriea“, 1970 (2) LLJ 416 their lordships of the Supreme Court following the judgment in Saran Motors (P) Ltd.’s case (supra) held as under:
“We find ourselves unable to accept the conclusions arrived at the Tribunal. The Tribunal seems to have been greatly impressed by the fact that instead of appointing someone in the appellant’s factory, itself as the enquiry officer the work’s manager had brought in an outsider who was no other than a junior Advocate occasionally assisting Ananda Prakash, their Counsel, in some matters. The Tribunal’s view that this was wholly unwarranted and done with the purpose of loading the dice against the workmen appears to be unreasonable. Merely because the enquiry officer was a junior Advocate and that he had on occasions been engaged by the appellant, it is not possible to take the view that he would necessarily be biased against the workmen. Evidently some of the workmen had behaved rudely to some members in the managerial cadre and it would not have been at all difficult for the works manager to appoint as enquiry officer some person of the factory itself over whom he was likely to have greater influence than on an outsider. As he himself was going to be a witness in the enquiry he entrusted the appointment of the enquiry officer to the Director of the company. We find nothing unfair in this and are unable to take any exception to the course adopted.”
18. As noticed above, it is not the case of the petitioner that enquiry Officer, being a lawyer was biased or was prejudiced or conducted the enquiry in the manner not provided in law. I am therefore, of the view that disciplinary enquiry cannot be vitiated merely because of the fact that enquiry officer so appointed by the Management was a lawyer.
19. Next question that arises for consideration is whether domestic enquiry was fair and proper. The Labour Court decided the said issue as a preliminary issue and held that domestic enquiry was fair and proper and full opportunity of hearing was given to the concerned workmen. It has not been disputed by the petitioner that none of the workmen have taken pain to pass through the witness box. The Labour Court drawn an adverse inference against the workmen for their non-examination although the concerned workmen participated in the domestic enquiry, Some of the workmen in their reply accepted charges leveled against them and prayed for clemency of the management. The Labour Court recorded a finding that full opportunity of hearing was given to the concerned workmen in the domestic enquiry and the report submitted by the enquiry officer holding that the charges have been proved. In that view of the matter, I do not find any strong reason to differ with the finding recorded by the enquiry officer.
20. The next and last question that falls for consideration is whether punishment imposed upon the workmen is disproportionate to the charges leveled against them. The Labour Court or reappraisal of the evidence came to the conclusion that concerned workmen have been found guilty of serious misconduct and the management have dismissed them upon the proved charges of misconduct after holding fair and proper enquiry against them and regard being had to the gravity of the misconduct the action of the management in dismissing them is perfectly justified. The labour Court further held that the workmen have not been victimized and the management is not guilty of unfair labour practice and they are not entitled to any relief.
21. The charges leveled against the concerned workmen inter alia are slowing down of work, wilful subordination or disobedience, habitual indiscipline and instigating other to indulge in slowing down of works. As noticed above, these charges have been proved against the concerned workmen and the labour Court also held that domestic enquiry was fair and proper.
22. It is well-settled that the Court in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent finding on the evidence. The Court can interfere only where the authority has held the proceeding against the delinquent officer in a manner inconsistent with the rules of natural justice. However, if the punishment imposed by the disciplinary authority shocks the conscience of the Court, it would appropriately mould the relief either directing the disciplinary authority to reconsider the penalty imposed or in exceptional cases imposed appropriate punishment with cogent reason in support thereof.
23. In the case of B.C. Chaturvedi v. Union of India and Ors., reported in 1996 (1) U.J. (SC) 80, their Lordships held :
“Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/ Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are compiled with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/ Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against he delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the made of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and would the relief so as to make it appropriate to the facts of each case.
Their Lordships further observed as under:
“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 maintain 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.”
24. In the case of Union of India and Ors. v. Narain Singh, reported in 2002 AIR SCW 2172, the Supreme Court held that normally the Court does not interfere with the quantum of punishment in cases where misconduct has been proved. Their lordships observed:
“As seen above, the Division Bench notes that the charges against the Respondent are proved and that the charges are of serious nature. Once the Court came to the conclusion that the charges were proved and that the charges were of serious nature, it was not the function of the Court to interfere with the quantum of punishment. The Division Bench was wrong in holding that factors viz., (a) the person is coming from which place, (b) his family background and (c) his service record etc. were to be kept in mind. In our view the Division Bench was also wrong in holding that if a poor person pleads guilty to the misconduct, then extreme penalty of dismissal is uncalled for. In our view a Court must not lightly interfere with sentences passed after a properly conducted enquiry where the guilt is proved. Reduction of sentence, particularly in military, para-military or police services can have a demoralizing effect and would be a retrograde step so far as discipline of these services is concerned. In this case the charges being of a serious nature the penalty was commensurate with the charges.
Further the Division Bench has itself noted that this was the third time the Respondent was punished.”
25. Similarly in the case of Chairman and Managing Director, United Commercial Bank and Ors. v. P. C. Kakkar, reported in 2003 AIR SCW 944, their Lordships as under:
“The common thread running through in all these decisions is that the Court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury’s case (supra), that the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
To put difference unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to certain litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.”
26. Last but not the least in the case of The Dunlop Rubber Co. (India) Ltd. v. Their Workmen, reported in AIR 1965 SC 1392 the Supreme Court was considering a similar question in a case where order of dismissal was passed in a domestic inquiry on the ground of the charge of misconduct i.e. slowing down of work and engaging or inciting others to arrange unjustified or illegal strike. Their Lordships firstly held that the charge of slowing down the work is a grave charge and the order of dismissal on the basis of the said charge is proper. Their Lordships further observed that against the said order of dismissal, the Industrial Tribunal cannot act as any Court of appeal and cannot substitute its own judgment unless the action of the inquiry officer is liking in bona fide or is manifestly perverse of unfair.
27. Taking into consideration all the facts and circumstances of the case and the law discussed hereinabove I am of the opinion, that the order and the award passed by the presiding officer labour Court needs no interference at all by this Court in exercise of power under Article 226 of the Constitution of India,
28. For the aforesaid reasons, there is no merit in this writ application, which is accordingly dismissed.