1. What the enlightened Legislature gave in its wisdom in the context of the felt needs of the time (the power u/s. 11A of the Industrial Disputes Act to reduce the punishment of dismissal or removal from service imposed on an industrial worker by an employer in a departmental proceeding) has been taken away by the Labour Court. Taken away inter alia on the ground that the power can be exercised only provided the worker, (1) does not contest the proceedings, (2) pleads guilty and, (3) seeks mercy. And that provides the necessity for spelling out the principles for the exercise of these vital powers in the true spirit of the legislation.
2. The question has arisen in the context of dismissal of an employee of the Gujarat Electricity Board working as a Helper for more than ten years at its Narol Sub-Station, by an order passed by the Executive Engineer, Narol, as per Annexure 'C' dated January 31, 1975. The order of dismissal was passed in the context of two charges, namely, (1) absence from duty for about two days without obtaining prior permission, and (2) theft of scrap material. Such as nuts, bolts, screws, etc. valued at less than Rs. 50. A reference was made to the Labour Court at Ahmedabad u/s. 10(1)(c) of the I.D. Act of 1947 by the competent authority by his order dated August 1, 1975 for adjudication of the industrial dispute raised by the employee questioning the legality and validity of the order of dismissal passed against him. The Labour Court at Ahmedabad disposed of the Said reference by an award dated January 20, 1981 whereby it came to the conclusion that there was no infirmity in the order of dismissal and that it was not a case where lesser punishment deserved to be awarded in exercise of powers u/s. 11A of the Act. Thereupon the employee concerned has approached this Court by way of a petition under Art. 227 of the Constitution of India and has challenged the legality an validity of the impugned award rendered by the Labour Court on the premise that the award discloses errors apparent on the face of the record. The impugned award requires to be quashed and set aside and the matter requires to be remitted to the Labour Court for a fresh decision in accordance with law in circumstances which will become evident in a short while in the course of this discussion.
3. The first reason why this course is required to be adopted is that the Labour Court has taken into account irrelevant factors in dealing with the plea for imposition of lesser punishment even if the employee failed in regard to the rest of the contentions. This plea was urged in order to invoke powers of the Labour Court u/s. 11A of the I.D. Act. No doubt, the statute does not prescribe guidelines for the exercise of these powers. All the same, the Labour Court is required to decide the question on principle and on germane considerations without being influenced by irrelevant factors.
4. An irrelevant factor which unduly weighed with the presiding officer of the labour Court was that the employee had contested the petition. Says the learned Judge :
'If, he wanted the benefit of S. 11A of the Act, he could have 'admitted' the charges before the Court and 'prayed for mercy straightway', rather than preferring false allegations and commenting on each and every word of the statements of the witnesses which were recorded at the inquiry and on the findings given by the inquiry officer.'
An employee facing a proceeding which could result in his economic death has a right to contest and resist it. He is not bound to admit the charges, or to plead guilty in order to enable him to invoke the jurisdiction of the Court u/s. 11A to reduce the penalty. No such condition was engrafted by the Legislature and the Labour Court could not amend the statute by introducing such a rider. That he is ultimately found guilty at the departmental proceeding does not necessarily mean that he was in fact guilty. But even if he is in fact guilty. But even if he is in fact guilty of the charge levelled against him, he has the right to invoke the powers of the Labour Court us. 11A for reduction of the penalty. The provision itself postulates a finding of guilt warranting a punishment recorded after a contest and empowers the Labour Court to reduce the punishment all the same. Since the power can be exercised even after he is found guilty at the conclusion of the inquiry, where is the compulsion to plead guilty To say that the power can be exercised only provided an employee pleads guilty and throws himself at the mercy of the Labour court is to rewrite (in fact virtually to repeal) the provision. Claiming reduction of penalty is his right and not something for which the employee has to beg of the Labour Court on bended knees, and folded hands. Insisting on this as a pre-condition for exercise of power u/s. 11A, the Labour Court has abdicated its jurisdiction altogether and scuttled the purpose and policy of the Legislature. Thus, there is no effective exercise of power u/s. 11A. This is one reason why the matter requires to be remanded for a fresh decision in accordance with law uninfluenced by the circumstances that he did not plead guilty.
5. Another reason why a remand is called for is that though a contention was in terms urged that the impugned order of dismissal was vitiated by reason of the fact that it was passed by an authority who had no legal competence to do so, the Labour Court has not examined this question and has got rid of the plea by saying that it was not established that the order was by an authority who was not competent to pass the order. This contention virtually remains undisposed of. The impugned order of dismissal has been passed by the Executive Engineer whereas the petitioner was appointed by the General Superintendent, Theremal Power Station, Gujarat Electricity Board, Dhuvaran, as per Annexure 'A' dated August 9, 1965. These facts are not in dispute. What is in dispute is whether the General Superintendent of the Thermal Power Station was an officer superior in rank to the Executive Engineer or not. If the appointing authority was superior in rank than the dismissing authority, the impugned order would become vulnerable in view of the rules framed by the G.E.B. itself. The relevant rule, R. 11(b), is to be found at page 162 of the Gujarat Electricity Board Rules. The said rule provides :
'Without prejudice to the competence of the appointing authority or to the inherent powers of any authority higher than the appointing authority to deal with minor lapses, delinquencies or acts of misconduct, the officers mentioned in Schedule 'D' are appointed to be the competent authorities to deal with facts of misconduct of different classes of employees and to inflict any punishment (except the punishment of termination of service, discharge or removal or dismissal) as if they are the competent authorities under sub-clause (a).
Notwithstanding the above provisions, the authority competent to inflict the punishment of termination of service, discharge, removal or dismissal shall not be subordinate to the appointing authority.'
The G.E.B. must, therefore, satisfy the Court that the impugned order was passes by an officer who was not subordinate to the appointing authority. The petitioner has made an averment to the effect that the Executive Engineer is an authority subordinate to the appointing authority. This averment has not in terms been denied in the course of the affidavit-in-reply which was filed at the stage of notice pending admission, before the Rule was issued. It may be mentioned that though Rule was made returnable, no affidavit-in-reply has been filed subsequent to the service of the Rule. Be that as it may, the aforesaid contention requires to be dealt with on the basis of such material as may be produced before the labour Court. It will be open to the G.E.B. to show by producing relevant material that the impugned order of termination was passed by an authority who was not subordinate to the appointing authority. Since the Labour Court has not decided this question and evidence will have to be recorded, the matter requires to be remanded.
6. Whilst we are on the subject, we may as well advert to certain relevant factors which require to be borne in mind in exercising powers u/s. 11A. Be it realised that S. 11A was brought on th Statute Book by S. 3 of the Industrial Dispute (Amendment) Act, 1971. It was brought on Statute Book on account of the felt needs of the time as is evident from cls. 2 and 3 of the Statement of Object and Reasons (see Gazette of India - Extraordinary. Part II S. 2 page 564) reading as under :
'2. The international Labour Organisation, in its recommendation (No. 119) concerning 'termination of employment at the initiative of the employer' adopted in June, 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination, amongst others, to a neutral body such as an arbitrator, a court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and the other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organisation has further recommended that he neutral body should be empowered (if it finds that the termination of employment was unjustified to order that the worker concerned, unless reinstated with unpaid wages, should be paid adequate compensation or afforded some other relief.
3. In accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceedings relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power, in cases wherever necessary, to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it think fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. For this purposes, a new section 11A is proposed to be inserted in the Industrial Disputes Act, 1947.'
The matter regarding imposition of penalty on employees (it was so realized by International Labour Organisation, an international body) could not be left solely to the discretion of the management even if the employee concerned is found to be guilty of the charge levelled against him, presumably because of the conditioned approach of the disciplinary authority with this inbuilt and inherent pro-employer-anti-employee bias. That is why in obeisance to the felt needs of the time it was considered necessary to entrust this most vital function to a neutral body. With the end in view that he employees were not treated more harshly than they deserved in the context of facts and circumstances of the case, and that the employee could get the protection of the Labour Court which could be trusted to make a just and fair approach, the provision was introduced by way of an amendment. It is a benevolent power conferred on the Labour Court and has to be exercised in the spirit in which the provision has been enacted in order to further the intendment and purpose of the legislation, Keeping aglow before the mental eye some very important dimensions of the matter, viz. :
(1) There is widespread unemployment in our country and it is difficult to secure a job to earn enough to keep body and soul together unlike in developed countries.
(2) The State does not provide social benefits like unemployment allowance to enable a discharged employee to sustain himself and his family to some extent, as is being done in the developed countries.
(3) In imposing punishment on an erring employee an enlightened approach informed with the demands of the situation and the philosophy and spirit of the times requires to be made. It cannot be a matter of the ipse dixit of the disciplinary authority depending on his whim or caprice.
(4) Be it administration of criminal law or the exercise of disciplinary jurisdiction in departmental proceedings, punishment is not and cannot be the 'end' in itself. Punishment for the sake of punishment cannot be the motto. Whilst deliberating upon the jurisprudential dimension the following factors must be considered -
(1) In a disciplinary proceeding for an alleged fault of an employee punishment is imposed not in order to seek retribution or to give vent to feeling of wrath.
(2) The main purpose of a punishment is to correct the fault of the employee concerned by making him more alert in the future and to hold out a warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment. And the approach to be made is the approach parents make towards an erring or misguided child.
(3) It is not expedient in the interest of the administration to visit every employee against whom a fault is established with the penalty of dismissal and to get rid of them. It would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault.
(4) In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide.
(5) When different categories of penalties can be imposed in respect of the alleged fault one of which is dismissal from service, the disciplinary authority perforce is required to consult himself for selecting the most appropriate penalty from out of the range of penalties available that can be imposed, having regard to the nature, content and gravity of the default. Unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concerned it would be absolutely unsafe to retain him in service the maximum penalty of dismissal cannot be imposed. If a lesser penalty can be imposed without seriously jeopardising the interest of the employer the disciplinary authority cannot impose the maximum penalty of dismissal from service. He is bound to ask his inner voice and rational faculty why a lesser penalty cannot be imposed.
(6) It cannot be overlooked that by and large it is because the maximum penalty is imposed and total ruination stares one in the eyes that the employee concerned is obliged to approach the Court and avail of the costly and time-consuming machinery to challenge in desperation the order passed by the disciplinary authority. If a lesser penalty was imposed, he might not have been obliged to take recourse to costly legal proceedings which result in loss of public time and also result in considerable hardship and misery to the employee concerned.
(7) When the disciplinary proceedings end in favour of the employee the employer has often to pay back wages say for about 5 years without being able to take work from the employee concerned. On the other hand, the employee concerned would have had to suffer economic misery and mental torture for all these years. Even the misery of being obliged to remain idle without work would constitute an unbearable burden. And when the curtain drops everyone is left with a bitter taste in the mouth. All because extreme penalty of dismissal or removal is imposed instead of a lighter one.
(8) Every harsh order of removal from service creates bitterness and arouses a felling of antagonism in the collective mind of the workers and gives rise to a feeling of class conflict. It does more harm than good to the employer as also to the society.
(9) Taking of a petty article by a worker in a moment of weakness when he yields to a temptation does not call for an extreme penalty of dismissal from service. More particularly when he does not hold a sensitive post of trust (pilferage by a cashier or by a store-keeper from the stores in his charge, for instance, may be viewed with seriousness. A worker brought up and living in an atmosphere of poverty and want when faced with temptation, ought not to, but may, yield to it in a moment of weakness. It cannot be approved, but it can certainly be understood particularly in an age when even the rich commit economic offences to get richer and do so by and large with impunity. (And even tax evasion or possession of black money is not considered to be dishonourable by and large). A penalty of removal from service is therefore not called for when a poor worker yields to a momentary temptation and commits an offence which often passes under the honourable name of Kleptomania when committed by the rich.
The Labour Court in exercising its power to reduce the penalty has to inform itself of these considerations and play the role assigned to it by its creator loyally and faithfully and in harmony with the enlightened spirit which permeates the legislation.
7. The Labour Court will, therefore, after hearing the parties decide the question as regards exercise of power u/s. 11A in the light of the aforesaid observations, having regard to the facts and circumstances of the case. The Labour Court will, doubtless, take into account the circumstance that the alleged offence was in regard to scrap materials worth less than Rs. 50 and that the employee concerned is not holding any sensitive post where he has to deal with stores of the G.E.B. or cash belonging to the G.E.B. (he is a Class IV employee working as a Helper and has to do physical labour and is not in nay way concerned with the handling of cash or stores or other properties belonging to the Board).
8. It appears that the petitioner made a request for the assistance of a co-employee being afforded to him in order to defend him at the inquiry. This request was refused. The petitioner raised a plea before the Labour Court to the effect that the failure to make available assistance of a co-employee rendered the impugned order null and void in the context of the decision rendered by this Court in Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-operative Department Stores Ltd. [1979-I L.L.J. 60]. This contention has also not been dealt with by the Labour court. It will be open to the petitioner to urge this plea before the Labour Court when the matter goes back in pursuance to the order which is being passed and the Labour Court will decide the question in accordance with law.
9. The petition is, therefore, allowed. This impugned order as per Annexure 'D' dated January 20, 1981 is quashed an set aside. The matter is remitted to the Labour Court for a fresh decision in the light of the aforementioned directions in accordance with law. Rule is made absolute to the aforesaid extent. The matter will be placed for hearing before a learned Judge other than the learned Judge who rendered the impugned award as per Annexure 'D' dated 20th January, 1981. Having regard to the fact that the petitioner is out of job since January 31, 1975 and about seven years have elapsed, the Labour Court will accord priority to this matter and dispose it of with expedition, preferably within three months of the receipt of the record, in accordance with law.