{"id":49627,"date":"2001-07-17T00:00:00","date_gmt":"2001-07-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/breach-candy-hospital-and-vs-babulal-b-pardeshi-and-anr-on-17-july-2001"},"modified":"2016-10-21T04:19:51","modified_gmt":"2016-10-20T22:49:51","slug":"breach-candy-hospital-and-vs-babulal-b-pardeshi-and-anr-on-17-july-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/breach-candy-hospital-and-vs-babulal-b-pardeshi-and-anr-on-17-july-2001","title":{"rendered":"Breach Candy Hospital And … vs Babulal B. Pardeshi And Anr. on 17 July, 2001"},"content":{"rendered":"
Bombay High Court<\/div>\n
Breach Candy Hospital And … vs Babulal B. Pardeshi And Anr. on 17 July, 2001<\/div>\n
Equivalent citations: 2001 (91) FLR 1185, 2002 (2) MhLj 227<\/div>\n
Author: D Chandrachud<\/div>\n
Bench: D Chandrachud<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
D.Y. Chandrachud, J.<\/p>\n
1.  The workman in the present case, who is the First Respondent in Writ Petition No. 2021 of 1997 filed by the employer and the petitioner in companion Writ Petition No. 111 of 2000 instituted by him, was employed as a general helper in (lie Engineering Department of the Breach Candy Hospital and Research Centre on 1st January, 1975. On 13th January, 1988 a chargesheet was issued to the workman in which it was alleged that on 11th January, 1988, he was on duty between 8 a.m. and 4.30 p.m. At 12.30 p.m. a notice had been put up on the Notice Board outside the Personnel Office and after reading the said notice, the workman along with another workman U. S. Naik, who was an Air-conditioning Plant Attendant rushed towards the complainant Shri Bhaskaran, who was a General Supervisor. Shri Bhaskaran was, at the relevant time, sitting at the table provided for a General Supervisor at the Hospital. The allegation was that Shri U. S. Naik “collared” the complainant and caught hold of his neck in a “hard grip” while the workman in these proceedings twisted the arm of the complainant without any provocation by the complainant. It was further alleged that the workman threatened the complainant by stating that the complainant had incited certain persons whose signatures he had obtained and that the complainant would not be left alive. It was stated in the chargesheet that as a result of the outrageous behaviour, the complainant felt strangulated and had to be hospitalised. In these circumstances, the workman was charged with an act of misconduct falling within Clauses 24(k) and 24(1) of the Certified Standing Orders which read as under :\n<\/p>\n
  “24(k) Riotous, disorderly or indecent behaviour on the premises of the Establishment, and\/or 24(1) Commission of any act subversive of discipline or good behaviour on the premises of the Establishment.”\n<\/p>\n
2. An enquiry was then conducted, during the course of which, the employer examined the complainant Bhaskaran, who was the General Supervisor, alleged to have been assaulted by the workman and Shri U. S. Naik, a co-worker. Besides the evidence of the complainant, the deposition of a Ward Boy, Shri Shankar Konkar was recorded in the course of the disciplinary enquiry. The workman in the present case stepped into the witness box in defence to the charges against him. Another witness Shri K. G. Mule, who was a Plant Attendant in the Air-conditioning Unit was also examined. The Enquiry Officer by his report dated 17th April, 1989 came to the conclusion that the charge of misconduct was established save and except for a part of the threat which was alleged to have been administered by the workman to the complainant. The Enquiry Officer concluded that besides the oral evidence of the complainant, which was corroborated by the evidence of the Ward Boy, the written complaint lodged by the complainant with the Management (Exh. 14), the Police complaint (Exh. 16) and the clinical report in regard to the hospitalisation of the complaint (Exhs. 15 and 17) established the charge of misconduct. The Enquiry Officer was of the view that the charge of misconduct was serious since it involved an assault on a co-workman within the Hospital premises. The Enquiry Officer held that Union rivalry between two rival Unions was the main cause and while the workman was entitled to pursue Union activities that could not be utilised for a breach of discipline in the premises of the Hospital. Following the enquiry report, the workman in the present case came to be dismissed from service on 23rd August, 1989.\n<\/p>\n
3. On a reference to adjudication, the Labour Court in its Part-I Award dated 6th March, 1997 came to the conclusion that the enquiry which had been held by the management against the workman in the present case was in accordance with the principles of natural justice and was therefore, fair and proper. Thereafter, the evidence of the workman was recorded by the Labour Court. On 1st October, 1997, the Labour Court delivered its Part-II Award by which the Court came to the conclusion that the findings of the enquiry officer were not perverse. However, the Court held that the punishment of dismissal from service which had been awarded by the employer was shockingly disproportionate. The Labour Court consequently directed that the workman should be reinstated with 70% back wages. In arriving at this conclusion that the punishment was shockingly disproportionate, the Labour Court had regard to the following circumstances viz., (i) that there was no evidence of a bad past record and on the contrary, the performance of the workman had been good immediately prior to the dismissal; (ii) the age of the workman was 48 years and the age of retirement was 60; (iii) considering the nature of the alleged incident and the length of service, the imposition of the punishment of dismissal would be shockingly disproportionate.\n<\/p>\n
4. Two Writ Petitions have been filed which form the subject matter of these proceedings. The first of them is the Petition which has been instituted by the employer. The second is the Petition by the workman, insofar as the denial of 30% backwages by the Part-II Award is concerned. The learned Counsel appearing on behalf of the employer urged in support of the challenge to the Part-II Award that the three considerations which have weighed with the Labour Court relate to the past record, the age of the workman and that the fact that he had put in 14 years of service. The learned Counsel submitted that the nature of the incident and the nature of misconduct which has been established have not been considered by the Labour Court. The fact that the misconduct took place within the premises of a Hospital was in the submission of the learned Counsel, a relevant circumstance which should have been taken into consideration by the Labour Court. Therefore, the submission was that the settled principles which underlie the exercise of jurisdiction under Section 11-A of the Industrial Disputes Act, 1947 have not been taken into consideration by the Labour Court. The Labour Court in the exercise of its jurisdiction under Section 11-A to interfere with the punishment which had been awarded by the employer, it was submitted, had exceeded the ambit of the jurisdiction under Section 11-A of the Act. The learned Counsel appearing for the workman has sought to impugn the finding of the Labour Court to the effect that the conclusions of the Enquiry Officer did not suffer from perversity. The leamed Counsel submitted that in any event, the finding that the penalty of dismissal is disproportionate is proper and full relief ought to have been granted.\n<\/p>\n
5. The Labour Couit has, in the present case, come to the conclusion that the enquiry which was held into the charge of misconduct was fair and proper. The Labour Court has also come to the conclusion that the findings which have been arrived at by the Enquiry Officer are not perverse. This is not a case where mala fides or victimization have been established in the proceedings before the Labour Court. The charge against the workman in the present case, is serious, in that it took place within the premises of the Hospital and in the course of the incident a co-worker came to be assaulted. Before the Enquiry Officer evidence was adduced of the complainant who was a General Supervisor employed in the Breach Candy Hospital. The complainant who was assaulted, deposed to the involvement of both the workman in the present case and the co-worker, Shri U. S. Naik. The complainant has lodged a police complaint on 11th January, 1988 as well as a complaint before the Management on 12th January, 1988. The learned Counsel appearing on behalf of the workman sought lo submit that in the complaint lodged before the Police, there was no reference to the nature of the assault by the workman involved in the present case though there was a reference to the fact that the co-workman, Shri U. S. Naik had held him by the neck and threatened the complainant. Similarly, it was sought to be submitted that in the Police,complaint there was no reference to any threat having been administered by the workman in the present case though in the complaint which was lodged the next day before the Management, there was a reference to the fact that the workman in the present case had participated in the assault and had administered threats to the complainant. This submission cannot be countenanced in the present case for more than one reason. For one thing, it must be noticed that neither the Enquiry Officer, nor for that matter the Labour Court were dealing with a criminal trial. The distinction between the requirement for establishing a charge of misconduct in a departmental enquiry as distinguished from the proof of the commission of an offence in the course of a criminal trial is well established. The charge of misconduct in a disciplinary enquiry has to be established on a preponderance of probabilities and does not admit of the high standard of proof, a proof beyond reasonable doubt as would be required in the course of a criminal trial. A disciplinary enquiry is not subject to the observance of the strict rules of evidence which are required in the case of a criminal trial. The Enquiry Officer has relied upon the evidence of the complainant which was duly corroborated by the evidence of the Ward Boy and the written complaint (Exh. 14) which had been lodged by the complainant before the management. The Labour Court after reviewing the records before the Enquiry Officer has concluded that the enquiry did not suffer from a breach of the principles of natural justice and the findings of the Enquiry Officer from any perversity. The findings which have been recorded by the Enquiry Officer have been held to be suslainable with reference to the evidence which was on record. Having considered the entire record in the present case, I do not find any reason to interfere with this part of the finding which has been arrived at by the Labour Court.\n<\/p>\n
6. The next issue to be considered is as to whether the Labour Court was justified in interfering with the penalty of dismissal. There are two important circumstances which in my view, weigh in the decision on the issue. The first circumstance relates to the nature of the misconduct. The misconduct which has been proved in the facts and circumstances of the present case involved an assault on the complainant who was a General Supervisor in the Personnel Department of the Hospital. There was a dispute in the present case between the Mumbai Mazdoor Sabha and the Maharashtra Shramik Sena, the latter Union having staked a claim in 1988 to represent the workmen. A notice was displayed outside the Personnel Department on 11th April, 1988 and the workman involved in the present case, after reading the notice accosted the complainant and assaulted him without any reason or provocation. The co-worker Shri U.S. Naik caught the complainant by the neck and attempted to strangulate him while the workman involved in the present case also participated in the assault on the complainant. While doing so, the complainant was threatened of dire consequences. The present case, therefore, involves a serious charge of misconduct involving an assault on a co-workman. But, what is equally significant is that the assault in the present case took place in the premises of the employer which manages and conducts a Hospital. It does not require much elaboration to state that Hospitals are amongst those areas of human endeavour where there is a pressing need for the maintenance of discipline by the collective body of employees upon whose behaviour and conduct, the safety, health and welfare of the patients must depend. Hospitals are institutions to which persons in distress are required to visit often at the cost of grave hardship, cost and inconvenience. The patients and their relatives come from far and away and the minimum expectation which those who seek the services of the hospital can expect is that the course of medical treatment should not be disrupted by labour indiscipline and behaviour which is subversive of discipline. Unfortunately, employees of Hospitals are often liable to lose sight of the basic object and purpose which Hospitals are expected to subserve and the social endeavour in which they are engaged. Consequently, acts of misconduct invoking Institutions such as Hospitals can legitimately be looked upon with a sense of strictness and disfavour. A case of assault or behaviour that is subversive of discipline in a Hospital does not stand on the same footing as an occasional or isolated instance of a breach of discipline on the shop floor of a factory.\n<\/p>\n
7. Before the Labour Court, in the present case, these aspects of the matter were sought to be highlighted on behalf of the employer. Evidently, the Labour Court has not taken them into consideration at all, The Labour Court has relied upon the fact that the workman had put in 14 years of service, the past record which was blameworthy and his age on the date of the passing of the order of the Court. Undoubtedly, the past record of the workman is one of those circumstances which has to be taken into consideration by the Labour Court when it exercises jurisdiction under Section 11-A of the Industrial Disputes Act, 1947. That can, however, not be construed to mean that in cases such as the present, where the misconduct which has been established, is a serious one involving an assault on a co-workman within the precincts of a Hospital, that the nature of the misconduct and the impact on the institution of the Hospital should be ignored. The error of the Labour Court in the present case lies in the fact that it has placed virtually no emphasis at all upon the nature of the guilt which was established upon the finding of misconduct.\n<\/p>\n
8. The provisions of Section 11-A of the Industrial Disputes Act, 1947, empower the Labour Court to interfere with the order of discharge or dismissal if it is satisfied that the order was not justified. The Labour Court is similarly empowered to direct reinstatement of the workman on such terms and conditions as it may think fit or to give such other relief to the workman including a lesser punishment in lieu of dismissal as the nature of the case may require. The provisions of Section 11-A were brought on the statute book to give two additional powers to the Industrial Adjudicator. The Supreme Court had an occasion to consider this provision in Workmen of Fire stone Tyre and Rubber Co. v. Management, 1973 I LLJ 278. The first power which the Industrial Adjudicator has been conferred with is to investigate the question as to whether the finding of fact which has been recorded by the Enquiry Officer is correct and is supportable with reference to the evidence on record. The second is a power of the industrial adjudicator to reappraise the punishment which has been awarded by the employer. A learned Single Judge of this Court Justice B. N. Srikrishna made the following observations in this context while construing the provisions of Section 11-A of the Act in General Employees Union v.  Ambassador Sky Chef & Ors., 1995 II CLR 427.\n<\/p>\n
  “It is now settled by the judgment of the Supreme Court in Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management,<\/a> 1973(1) LLJ 278 that Section 11-A was brought on the statute book specifically to give two additional powers to the Industrial Adjudicator. First is virtually a power of appeal against findings of facts made by the Enquiry Officer in his report with regard to the adequacy of the evidence and the conclusion on facts. The second, and the far more important, is the power of reappraisal of the quantum of punishment.”\n<\/p>\n
9. The provisions of Section 11-A came up for consideration before the Supreme Court in Christian Medical College Hospital Employees’ Union v. Christian Medical College Vellore Association,<\/a> 1988(1) LLJ 263. Mr. Justice E. S. Venkataramiah (as the learned Chief Justice then was) speaking for the Court referred to the earlier judgment of the Supreme Court in Indian Iron & Steel Co. Ltd. v. Their Workmen,<\/a> 1958 (I) LLJ 260, where the Court had observed that the power of the Industrial Court to interfere with cases of dismissal of workmen by the management are not unlimited and the Tribunal does not act as a Court of Appeal to substitute its own judgment with that of the management. The Supreme Court held that the tribunal would interfere where (a) there is want of good faith; (b) there is victimisation or unfair labour practice; (c) when the management has been guilty of a basic error or violation of the principles of natural justice; and (d) when on the material before the Court the finding is completely baseless or perverse. In this context, the Supreme Court in the Christian Medical College case (supra) held thus with regard to the power of the Court under Section 11-A of the Industrial Disputes Act, 1947:\n<\/p>\n
  “The power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision.”\n<\/p>\n
Thus, to adopt the test which has been laid down by the Supreme Court, the Industrial Tribunal while determining as to whether its interference with the penalty imposed by the employer is called for has to have regard to the question as to whether the punishment which has been imposed is “highly disproportionate to the degree of guilt of the workman concerned.” This view has been reiterated in several decisions of the High Courts to which my attention was drawn during the course of the hearing. A Division Bench of the Madras High Court presided over by Dr. Justice A. S. Anand (as the learned Chief Justice then was) in Engine Valves Ltd. v. Labour Court, 7997(7) LLN 268, referred to earlier judgments of the High Court and reiterated the principle of law in the following words:\n<\/p>\n
  “Having regard to the principles referred to above, we are of the view that the power and discretion conferred under Section 11-A of the Act have to be exercised judicially and judiciously and that there should be sufficient indication in the order itself of the fact that the Court exercising powers under Section 11-A of the Act was aware of and alive to the norms and requirements of Section 11-A of the Act. The Court exercising powers under Section 11-A of the Act after finding the misconduct to have been proved is first obliged to advert itself to the question of necessity or desirability lo interfere with the punishment imposed by the management and, if the management could not justify the punishment imposed thereafter it must consider the decision as to the relief that is to be granted to the employee. In so considering the relief to be granted, the Court has an obligation to consider whether the punishment imposed is disproportionate or shockingly severe to the charges held proved and if so whether a reinstatement has to be ordered or whether any other lesser punishment has lo be imposed. A specific finding must be recorded whether it was expedient and proper to reinstate the employee or whether award of compensation in lieu of reinstatement will meet the requirements and ends of justice of the case concerned. Absence of reasons to invoke the power and interfere under the provisions of Section 11-A in a particular case would render the very exercise of powers arbitrary and perverse and (he order consequently would stand vitiated.”\n<\/p>\n
The same view has been taken by another decision of the Madras High Court in D. D. C. Sugar Mills v. The P. O., Labour Court, 1997 (II) LLJ 833 :\n<\/p>\n
  “Where the charges are grave in nature, can the Labour Court exercising power under Section 11-A of the Act impose on a management a workman whose presence is likely to affect the morale and discipline of the entire factory? Should the management be embarrassed by the reinstatement of such a workman by denying the managerial function to which a management is entitled to, having regard to the facts and circumstances of the case? In our opinion, the acceptance of such a proposition would only lead to interfering with the managerial functions to the extent of destroying the discipline and conduct in the entire factory. We are clearly of the opinion that Section 11-A of the Act is not intended to embarrass the management to such extent. Section 11-A of the Act is introduced to obviate the difficulty felt by the Labour Courts, Tribunals etc., in modifying the Judgments of discharge or dismissal on flimsy grounds solely with a view to render justice to the parties. The Labour Court and Tribunals cannot mechanically use the words “the punishment being disproportionate” to the charges. As observed by the Supreme Court of India unless the Labour Court finds the punishment to be highly disproportionate to the charges, the Labour Court should not interfere.”\n<\/p>\n
A learned Single Judge of this Court Mr. Justice R. M. Lodlia has formulated the underlying principles thus in USV Ltd. v. Maharashtra General Kamgar Union, 1997(3) Mh.LJ. 743 = 1997 II CLR 312 :\n<\/p>\n
  “However, the power given to the Labour Court or Industrial Tribunal or National Tribunal in Section 11-A is not in the nature of unruly horse and cannot be exercised as an appellate forum over the findings given by the disciplinary authority. The power exercisable by the Labour Court or the Industrial Tribunal or the National Tribunal under Section 11-A cannot be exercised in an arbitrary manner or in a fanciful way or in a colour of capriciousness. If the disciplinary authority has awarded the punishment of dismissal or discharge commensurate with the gravity of the offence which has been duly proved in the enquiry and neither the enquiry proceedings are vitiated by any error or law nor findings of the gravity of the charge suffer from any error and the award of punishment is commensurate with the gravity of charge, I am afraid the Labour Court or the Industrial Tribunal in exercise of its power under Section 11-A cannot substitute such just punishment by observing that it is unjustified. The exercise of the powers by the Labour Court or the Industrial Tribunal under Section 11-A has to be in the nature of the power that may be exercised by any supervisory authority but not as an Appellate Authority. The exercise of the power under Section 11-A therefore has to be within its framework and should not exceed its power by passing arbitrary or fanciful orders, Jurisdiction of the Labour Court or of the Industrial Tribunal under Section 11-A though very wide yet not as wide as the appellate forum, is always circumscribed by the power that may be exercised by supervisory authority.”\n<\/p>\n
10. In a recent judgment, a learned Single Judge, Mr. Justice B.H. Marlapalle has held in Bajaj Auto Ltd. v. Kalidas Devram Patil, 1999(3) Mh.LJ. 857 = 2000 (S4) FLR 157 that incidents of assault, either inside or outside the factory premises, akin to the instant case, are required to be dealt with strictly and any attempt to mould the punishment in purported exercise of power under Section 11-A will amount to showing misplaced sympathy which is likely to cause not only a miscarriage of justice but also a social injury. I am in respectful agreement with the view which has been expressed in these cases.\n<\/p>\n
11. The learned Counsel appearing on behalf of the workman sought to place reliance on the judgment of the Supreme Court in Ramakant Misra v. Stale of U. P., 1982 (45) Indian Factories and Labour Reports 432. The Supreme Court in that.case while reiterating the principle that the penalty must be commensurate with the gravity of the offence held that mere use of indiscreet or improper language disclosing a threatening posture were not sufficient to sustain the imposition of the extreme penalty of dismissal from service. The facts in-the-present case are clearly distinguishable. The present case involved a serious act of misconduct involving assault and not merely the use of the abusive language. Similarly, the judgment of the Supreme Court in Scooter India Ltd. v. Labour Court, Lucknow, AlR 1989 SC 649 would not be of any assistance to the workman. The judgment in para 3 refers to the fact that the Labour Court had come to the conclusion that essentially the charge against the workmen was that his conduct was “rough, bordering on rudeness and with highly exaggerated sense of his duties.” The Labour Court had granted reinstatement though with 75% back wages and the High Court had sustained the award of the Labour Court. The Supreme Court was of the view that the Labour Court had not acted in an arbitrary manner having regard to the facts and circumstances of the said case,<\/p>\n
12. Ultimately, the question as to whether the punishment which has been imposed is justified within the meaning of Section 11-A must depend upon the facts and circumstances of each case. In the present case, the award of the Labour Court is ex facie unsustainable. The Labour Court has failed to take cognizance of the nature of the misconduct which was held to be proved and the institution within the precincts of which the misconduct lias taken place. Having, therefore, regard to the totality of the circumstances of the present case, I am of the view that the employer is entitled to the relief as prayed for. Writ Petition No. 2021 of 1997 is accordingly made absolute in terms of prayer Clause (a). Writ Petition No. 111 of 2000 shall stand dismissed.\n<\/p>\n
13. The learned Counsel appearing on behalf of the workman submilted that this may be a fit and proper case for award of compensation in lieu of reinstatement and sought to place reliance on the judgment of the Supreme Court in Workmen of Bharat Fritz Werner (P) Lid. v. Bharat Fritz Werner (P) Ltd.,<\/a> . Having considered this submission, 1 am of the view that a case for the grant of compensation in lieu of reinstatement has not been made out. The nature of the misconduct is such as to dissuade the Court from accepting the argument that the workman should be granted compensation even despite the finding that has been arrived at by the Labour Court that the misconduct is established.\n<\/p>\n
14. Pursuant to the interim order dated 9th February, 1998, which has been passed in these proceedings, the employer has deposited half the wages which were awarded by the Labour Court and has furnished a Bank Guarantee for the remaining half, of a Nationalised Bank. The learned Counsel appearing on behalf of the workmen states that the amount which has been deposited in this court has not been withdrawn and has accordingly been invested. In view of the order which has been passed on the Writ Petition filed by the employer, the employer will be at liberty to withdraw the amount which has been deposited together with the accrued interest, if any, thereon. The Bank Guarantee which has been
\nfurnished by the employer shall stand discharged. On the request of the learned Counsel appearing on behalf of the workman, the direction in regard to the withdrawal of the amount and discharge of Bank Guarantee shall remain stayed for four weeks to enable the workman to pursue his remedy in appeal.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Breach Candy Hospital And … vs Babulal B. Pardeshi And Anr. on 17 July, 2001 Equivalent citations: 2001 (91) FLR 1185, 2002 (2) MhLj 227 Author: D Chandrachud Bench: D Chandrachud JUDGMENT D.Y. Chandrachud, J. 1. The workman in the present case, who is the First Respondent in Writ Petition No. 2021 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-49627","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nBreach Candy Hospital And ... vs Babulal B. Pardeshi And Anr. on 17 July, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/breach-candy-hospital-and-vs-babulal-b-pardeshi-and-anr-on-17-july-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Breach Candy Hospital And ... vs Babulal B. 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