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Gem Cinema and anr. Vs. B.C. Ojha and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Writ Petition No. 1231 of 1969
Judge
Reported in1971WLN461
AppellantGem Cinema and anr.
RespondentB.C. Ojha and ors.
DispositionPetition allowed
Cases ReferredIndian Iron & Steel Co. Ltd. and Anr. v. Their Workmen A.I.R.
Excerpt:
.....conduct and the past record or is such, as no reasonable employer would ever impose, in like circumstances, the tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice. 11. the principle that has been laid down by the supreme court in that case is that if the punishment is shockingly disproportionate and no reasonable employer is likely to impose such a punishment in like circumstances, then the tribunal may derive an inference of victimisation against the employer. in these circumstances their lordships of the supreme court inferred that a reasonable employer would not like to inflict such a severe punishment on his employees. in such circumstances a reasonable employer if he is keen to run his business concern efficiently..........established and chhitarmal was rightly held guilty of malingering. as regards the adequacy of punishment the labour court observed that it could not be the case of victimization because the employee was found guilty of gross misconduct, and such a conduct merits dismissal by itself but at the end of its order the court was swayed away by a consideration of the young age of the workman and said 'it is clear that the workman made this mistake being a young blood for the union's cause.' it was in this background that learned judge presiding over the labour court set aside the punishment of dismissal treating it as drastic and severe, and directed for his re-employment, but specifically ordered that for the period the workman remained absent from his duty he will not be entitled to.....
Judgment:

V.P. Tyagi, J.

1. This writ petition filed by Gem Cinema raises an important question about the scope of the jurisdiction of the Labour Court and it arises out of the following circumstances.

2. Respondent Chhitarmal was an employee of the petitioner's firm. He applied on 27th August, 1969, for two days leave to attend his party convention at Delhi on 1st and 2nd September, 1966. This application of the respondent was rejected by the management on the ground that there was shortage of gate-keepers and, therefore, Chhitarmal could not be spared. Chitarmal again sent an application for leave on 29th August, on the ground of illness. This application was accompanied by a medical certificate. The management suspected a foul play in this matter and, therefore, sent a letter to Chhitarmal asking him to produce a certificate of a Government authorised medical practitioner. When the messenger of the petitioner's firm went to deliver the said letter he discovered that Chhitrmal had already left for Delhi. The management thereupon initiated a disciplinary action against Chhitarmal and after domestic inquiry it was held that Chhitarmal was guilty of gross misconduct in submitting a false medical certificate with a view to obtain leave and absented himself from duty without leave. A serious view of this conduct of an employee was taken by the management and the punishment of dismissal was awarded to him. An industrial dispute was thereafter raised by Chhitarmal. The Conciliation Officer submitted his failure report. The matter was then referred to the State Government, but the Government vide its order dated 17th June, 1967, refused to refer the matter to the Labour Court. Later on, it is contended by the petitioner that as a result of certain political pressure the Government was persuaded to refer the following dispute to the Labour Court,-

Whether the quantum of punishment awarded by the Gem Cinema, Jaipur in terminating the services of Shri Chhatarmal, show attendant, for an act of disobedience is on the higher side? And to what relief, if any, Shri Chhatarmal is entitled?.

3. The Labour Court of Rajasthan, after inquiry, recorded its finding that the domestic inquiry held by one Shri N.C. Sharma cannot be said to be unfair as Chhitarmal was given full opportunity to associate himself with the inquiry; and that the charge of misconduct levelled against Chhitarmal was fully established and Chhitarmal was rightly held guilty of malingering. As regards the adequacy of punishment the Labour Court observed that it could not be the case of victimization because the employee was found guilty of gross misconduct, and such a conduct merits dismissal by itself But at the end of its order the Court was swayed away by a consideration of the young age of the workman and said 'it is clear that the workman made this mistake being a young blood for the Union's cause.' It was in this background that learned Judge presiding over the Labour Court set aside the punishment of dismissal treating it as drastic and severe, and directed for his re-employment, but specifically ordered that for the period the workman remained absent from his duty he will not be entitled to receive back wages. This punishment was considered by the court quite sufficient to meet the ends of justice.

4. This award given by the learned Judge of the Labour Court dated 9-1-66 has been challenged by the petitioner-firm inter alia on the ground that it was not within the competence of the Labour Court to interfere with the quantum of punishment inflicted by the management especially when the court itself held that the domestic enquiry was quite fair and it could not be said that it was a case of victimisation.

5. The petitioner has also challenged in this petition the order of reference passed by the State Government, but at the time of the argument the learned Counsel for the petitioner did not press this part of his case.

6. The only question which new remains to be decided is whether it was within the competence of the Labour Court to set aside the order of dismissal specially when the court itself came to the conclusion that the inquiry held by the management was a fair and that the circumstances do not bring the case of respondent Chhitarmal under what is known as victimization.

7. The facts as pleaded by the petitioner are not in dispute. It is evident that after Chhitarrnal's application for leave was rejected by the management he sent a false medical certificate in order to obtain leave for attending a function of his party at Delhi, and that he left for Delhi without waiting for the sanction pf the leave by the management. The Tribunal has recorded a clear finding that Chhkarmal was guilty malingering, i.e., feigning sickness in order to avoid his duty. This act of Chhitarmal, in my opinion, amounts to gross violation of discipline. The Supreme Court in Burn & Co. Limited v. Their workmen and Ors. A.I.R. 1958 S.C. 130, has held that the act of absenting one-self from duty without leave falls within what is known as gross violation of discipline.

8. The Law on this question which has been raised before this court now stands settled by the pronouncements pf the Supreme Court. In Indian Iron & Steel Co. Ltd. v. Their Workmen A.I.R. 1958 S.C. 130 their Lordships of the Supreme Court have observed as follows-

Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere (i) when there is want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or perverse.

It may be noted here that the case of Chhitarmal does not fall in any of the aforesaid four categories to warrant the interference of the Labour Court in the matter of awarding punishment of dismissal. On tin contrary the Labour Court in this case had recorded that it was difficult for it to hold that it was a case of victimisation. The domestic inquiry held by the management has also been accepted by the Court as a fair inquiry. In such circumstances there was no occasion for the Tribunal to exercise a jurisdiction which it would invoke only when this severe punishment was given as a result of the policy of the management to victimise the employee or the inquiry held by the management suffered from an error when may be termed as 'basic error'. The court feels one with the findings recorded by the enquiry officer appointed by the management. The only reason given by the Tribunal to interfere with the order of dismissal is that the workman had committed this mistake because of the young blood running in his veins and his devotion to the cause of the Union. In my opinion young blood has no right to violate the discipline of an organisation which is served by him The act of such indiscipline on the part of the employee is a serious matter and the management is free to take a grim view of such acts lest leniency in these matters may distort that degree of efficiency which is essential to run the concern. In the present case Chhitarmal not only did not attend his duty, but he purposely violated the instructions of his employer by absenting himself and that too on a false pretext which was not available to him if he cared to act honestly.

9. Learned Counsel appearing on behalf of Chhitarmal placed reliance on a Supreme Court Judgment in Indian Iron & Steel Co. Ltd. and Anr. v. Their workmen A.I.R. 1958 S.C. 130 and urged that Supreme Court itself interfered with the question of punishment awarded by the management. On that analogy it is argued that the Labour Court was justified in setting aside a severe punishment inflicted by the management.

10 I have carefully gone through the entire judgment in Hind Construction and Engineering Co. Ltd. v. Their workmen : (1965)ILLJ462SC . The facts and circumstances of that case are entirely different from those pf the present case. In that case eight permanent employees were dismissed by the management, because they absented themselves on 2nd January, which, according to the long standing practice in that concern, should have been declared as a holiday. In that connection their lordships observed as follows-

In respect of punishment it has been ruled that the award pf punishment for misconduct under the Standing Orders, if any, is a matter for the management to decide and if there is any justification for the punishment imposed the Tribunal should not interfere. The Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose, in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice.

11. The principle that has been laid down by the Supreme Court in that case is that if the punishment is shockingly disproportionate and no reasonable employer is likely to impose such a punishment in like circumstances, then the Tribunal may derive an inference of victimisation against the employer. This feet also weighed with the learned Judges of the Supreme Court that eight permanent employees were dismissed enblock because they remained absent on a day which according to the practice available in the concern should have been observed as a holiday. In these circumstances their Lordships of the Supreme Court inferred that a reasonable employer would not like to inflict such a severe punishment on his employees. The circumstances in the present case are entirely different. Here the employee deliberately disobeyed the orders of the employer and that too by adopting a very unfair practice. The act of Chhitarmal falls within the ambit of what we call act amounting to gross misconduct. In such circumstances a reasonable employer if he is keen to run his business concern efficiently would not show tolerance for such conduct. In such circumstances if an employer dismisses his employee then it can not justifiably be said that it is a case of unfair practice or victimisation.

12. It is true that the Tribunal, in order to maintain the industrial peace, should always be zealous to safeguard the interest of the victims of unfair labour practice and specially when the victim belongs to the weaker section of the society, but at the same time they should not ignore this glaring fact that indiscipline is making serious inroads in the fabric of our society and unfortunately this malady is increasing every day. In this state of affairs if an employer seriously views the misconduct of his employee and awards the maximum punishment of dismissal the Tribunal, even if they have jurisdiction to interfere with the matter, should be slow to extend protection to such indisciplined employee otherwise it would become difficult for the society to eradicate this deep routed evil which is likely to erode our social structure. In my opinion 'young blood' hardly provides any ground to show leniency towards an indisciplined youth from whom society expects greater degree of discipline in his conduct. In the instant Case the Tribunal had no jurisdiction to interfere with the question relating to the quantum of punishment as is apparent from the various decisions of the Supreme Court relied upon by the petitioner which reiterate the same principle as is laid down by their lordships in Indian Iron & Steel Co. Ltd. and Anr. v. Their Workmen A.I.R. 1958 S.C. 130 I need not, therefore, refer all those citations here to give volume to this judgment as the Supreme Court has very categorically laid down that awarding of punishment entirely rests with the management and the Tribunals are not expected to interfere with the question of punishment unless the conditions as mentioned in Indian Iron & Steel Co. Ltd. and Anr. v. Their Workmen A.I.R. 1958 S.C. 130 exist.

13. For the reasons mentioned above the writ petition is allowed, the award of the Labour Court dated 9th January, 1960, is hereby set aside. No order as to costs.


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