Holding

The Supreme Court held that the dismissal was not wholly disproportionate and, in the absence of a plea and proof of victimisation, the Division Bench erred in invoking clause (a); the appeal was allowed.

Summary

Uttam Manohar Nakate, a helper employed by Bharat Forge Co. Ltd., was found sleeping on duty and admitted the misconduct. A domestic enquiry under Standing Order 24(1) of the Industrial Employment (Standing Orders) Act, 1946 found him guilty and dismissed him, noting three prior misconducts with minor punishments. Nakate claimed unfair labour practice under items (a), (b), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971; the Labour Court held the enquiry proper but the dismissal harsh, ordering reinstatement with 50% back wages. The Industrial Tribunal reversed, upholding dismissal; the High Court Division Bench later held the punishment shockingly disproportionate, deeming it legal victimisation under clause (a) and ordered a monetary award. The Supreme Court held that the dismissal was not wholly disproportionate, that Nakate had not pleaded or proved victimisation, and that the Division Bench erred in invoking clause (a); consequently the appeal was allowed and the lower court order set aside.

Issues considered

Whether dismissal for proven misconduct of sleeping on duty is shockingly disproportionate and thus constitutes legal victimisation under clause (a) of Item I of Schedule IV of the Maharashtra Trade Union Act, 1971.
Whether the employee pleaded and proved factual or legal victimisation as required under the Act.
Whether a labour court or industrial tribunal may interfere with the quantum of punishment where misconduct is proved.

Legislation cited

Industrial Employment (Standing Orders) Act, 1946s. Standing Order 24(1)
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971s. Schedule IV (items a, b, d, f, g), s. Section 26, s. Section 27, s. Section 28

Subjects

unfair labour practicevictimisationdisproportionate punishmentdismissaldomestic enquirylabour court jurisdictionindustrial relations

Judgment

BHARAT FORGE CO. LTD. A
v.
UTTAM MANOHAR NAKATE

JANUARY 18, 2005

[N. SANTOSH HEGDE AND S.B. SINHA, JJ.] B

Labour Laws:

Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971-Schedu/e IV Item l(a),(b),(d), (j) and (g)- C
Misconduct of sleeping during duty hours-Domestic enquiry-Misconduct
admitted by employee and proved-On previous occasions also found guilty
of misconduct-Punishment of dismissal-Labour Court held the punishment
disproportionate and directed reinstatement with back wages-Dismissal order
approved by Industrial Tribunal and Single Judge of High Court-Division D
Bench of High Court held the punishment disproportionate and as such
amounted to legal victimization and unfair labour practice under clause (a)
of Item I-Factual foundation for legal victimization not laid by emp/oyee-
On appeal, held: In the facts of the case, punishment was not disproportionate
or arbitrary-Jn absence of any plea of victimization and in absence of
foundational fact in arriving at conclusion of legal victimization invoking of E
clause (a) by High Court was erroneous-Model Standing Order framed under
the Industrial Employment (Standing Orders) Act, 1946-Standing Order 24(1).

Industrial Courts-Jurisdiction-Scope of-Industrial Courts would not
sit in appeal over the decision of the employer unless there exists statutory F
provision in that behalf
+
Respondent was employed with appellant-Company. Disciplinary
proceeding was initiated against him under Standing Order 24(1) of Model
Standing Order framed under the Industrial Employment (Standing
Orders) Act, 1946, as he was found asleep during duty hours. The act of G
misconduct was admitted by him. Domestic enquiry was held. He was
found guilty and was dismissed. On earlier three occasions also he was
>..( found guilty of misconduct wherein only minor punishment was imposed.
He filed complaint under item l(a), (b), (d), (f) and (g)of Schedule IV of
Maharashtra Recognition of Trade Unions and Prevention of Unfair
545 H
546 SUPREME COURT REPORTS [2005] I S.C.R.

A Labour Practices Act, 1971. Labour Court held that domestic enquiry
against the respondent was fair and proper and the finding recorded by
the Enquiry Officer was not perverse. However, it held that the
punishment was harsh and disproportionate and directed reinstatement
with 50% back wages. Respondent as well as appellant filed revision
B application. Industrial Tribunal while allowing the application of appellant
and dismissing that of the respondent held that in case of proved
misconduct, question of victimization does not arise. Writ Petition of
respondent was dismissed by Single Judge of High Collrt. His Letters
Patent Appeal was allowed by the Division Bench holding that though .,.
respondent was guilty of major misconduct, his punishment was
C disproportionate and as s11ch the same amounted to legal victimization and
employer was guilty of having engaged in an unfair labour practice under
clause (a) of Item I of Schedule IV. However, it directed payment of a
sum instead of reinstatement.

In appeal to this Court, appellant contended that in case of proved
D misconduct, question of victimization did not arise; that respondent had
prevaricated his stand from Court to Court inasmuch as in Industrial
Court he invoked clause (g) of Item (l) of Schedule IV, before Single Judge
invoked clause (b) thereof but Division Bench, passed judgment invoking
clause (a) although no foundational fact was pleaded in support thereof.

E Allowing th!) appeal, the Court

HELD: l.l. In the facts and circumstances of the case and having
regard to the past conduct of the Respondent as also his conduct during
the domestic enquiry proceedings, it cannot be said that the quantum of
F punishment imposed upon the Respondent was wholly disproportionate
to his act of misconduct or otherwise arbitrary. (558-G-Hf +
1.2. All the courts have answered the question as regards commission
of misconduct by the Respondent in one voice. The Labour Court evidently
had taken recourse to Clause (g) of Item I of Schedule IV of Maharashtra
G Recognition of Trade Unions and Prevention of Unfair Labour Practices
Act, 1971 which ex facie was inapplicable. The said provision clearly
postulates two situations, namely, (i) the misconduct should be of minor
or technical character, and (ii) the punishment is shockingly
disproportionate without having any regard to the nature of the particular
misconduct or the past record of service of the employee. The past record
H of service, therefore, is a relevant factor for considering as to whether the
BHARAT FORGE CO. LTD. v. U.M. NAKATE 547
punishment imposed upon the delinquent employee is shockingly A
disproportionate or not. Before the Single Judge an attempt on the part
of the Respondent to take recourse to Clause (b) of Item (I) of Schedule
IV failed. It was obligatory on the part of the respondent to plead and
prove the acts of victimization. He failed to do so. In absence of any plea
of factual victimization and furthermore in absence of any foundational B
fact having been laid down for arriving at a conclusion of legal
victimization the Division Bench committed a manifest error in invoking
Clause (a) thereof. 1557-D-F]

Messrs Bharat Iron Works v. Bhagubhai Balubhai Patel and Ors., [19761
l sec 518, relied on. c
2. If the punishment is harsh, albeit a lesser punishment may be
imposed, but such an order cannot be passed on an irrational or
extraneous factor and certainly not on a compassionate ground. [558-E]

Regional Manager, Rajasthan State Road Transport Corporation v. D
Sohan Lal, [2004] 8 SCC 218, referred to.

3. The Labour Court or the Industrial Tribunal, as the case may be,
in terms of tbe provisions of the Act, must act within the four-corners
thereof. The Industrial Courts would not sit in appeal over the decision
of the employer unless there exists a statutory provision in this behalf. E
Although its jurisdiction is wide but the same must be applied in terms of
the provisions of the statute and no other. ]558-D]

4. A decision is an authority of what it decides and not what can
logically be deduced therefrom. (557-G]
F
Cement Corporation ofIndia Ltd. v. Purya and Ors., (2004] 8 SCC 270,
+
referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4399 of2002.

From the Judgment and Order dated 21.12.2001 of the Bombay High G
Court in LP.A. No. 150/95 in W.P. No. 6425 of 1987.

Makarand D. Adkar, S.D. Singh, Vijay Kumar, Raj iv Joshi and Anurag
Kishore for the Appellant.

The Judgment of the Court was delivered by H
+
548 SUPREME COURT REPORTS [2005] I S.C.R.

A S.B. SINHA, J. The Respondent herein at all material times was working
as a helper in the services of the Appellant. At or about 11.40 a.m., on
26.8.1983 while working in the first shift, he was found lying fast asleep on
an iron plate at his working place, whereupon a disciplinary proceeding was
initiated against him in terms of Standing Order 24( 1) of the Model Standing
B Order framed under the Industrial Employment (Standing Orders) Act, 1946.
In the said domestic enquiry he was found guilty whereupon by order dated
17 .1.1984 he was dismissed from his services. It is not in dispute that on
three earlier occasions also, the Respondent was found guilty of misconduct;
but only some minor punishments had been imposed. Questioning the said
order of dismissal dated 17.1.1984, the Respondent herein filed a complaint
C of unfair labour practice as specified under Item l(a), (b), (d), (t) and (g) of
Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention
of Unfair Labour Practices Act, 1971 (for short 'the Act) against the Appellant
herein before the Labour Court, Pune.

In the said proceeding, two preliminary issues were framed, namely, (i)
D whether the enquiry was proper; and (ii) is the finding recorded by the enquiry
officer perverse. The Labour Court by its order dated 21.5.1985 held that the
domestic enquiry against the Respondent was fair and proper and the finding
recorded by the enquiry officer was not perverse. He thereafter proceeded
with the case on merits and in tenns of its order dated 31.7.1985, the Labour
E Court held that the punishment of dismissal imposed upon the employee was
harsh and disproportionate and no reasonable employer could impose such
punishment for the proved misconduct. Consequently, the Appellant herein
was directed to reinstate the Respondent on his original post with continuity
of service with 50% of the back-wages for the period from 23.12.1983 till his
reinstatement.
F
Aggrieved by and dissatisfied therewith both the parties herein preferred
separate Revision Applications before the Industrial Tribunal. By a common
judgment dated 12.6.1987, the Revision Application filed by the Appellant
was allowed and that of the Respondent was dismissed. The Respondent
thereupon filed a Writ Petition before the Bombay High Court and by reason
G of a judgment and order dated 9.2.1995, the said Writ Petition was dismissed
by a learned Single Judge. A Letters Patent Appeal there-against was filed by
the Respondent herein which by reason of the impugned judgment was allowed
,.,..
directing :

"(i) the judgment of the learned Single Judge dated 9th February
H
BHARAT FORGE CO. LTD. v. U.M. NAKATE [SINHA, .I.) 549
1995 and the order of the Industrial Court dated 12th June 1987 A
are quashed and set aside.
(ii) The order passed by the second labour court dated 31st July
1985 is modified by directing the employer to pay a sum of
Rs.2,50,000/- to the employee within one month from today. In
the event of failure to pay the said amount to the employee B
within one month from today, the employer shall be liable to pay
interest at the rate of 9 per cent per annum from today till such
payment is made."

... The Appellant is in Appeal before us questioning the aforementioned
judgment. C
Despite service of notice, nobody has appeared on behalf of the
Respondent.

Mr. M.D. Adkar, learned counsel appearing on behalfof the Appellant,
assailing the judgment of the Division Bench of the High Court, brought to D
our notice that in the domestic enquiry the Respondent herein took several
adjournments and on the sixth day of hearing he went out of the room stating
that he would come back for filing a medical certificate in support of his plea
of adjourning the matter but did not come back; whereupon the domestic
enquiry was held ex parte. The learned counsel would contend that the E
Respondent has accepted his misconduct and furthermore materials have been
brought on records to prove that he had committed misconduct earlier also
and in that view of the matter, the Division Bench of the High Court went
wrong in passing the impugned judgment. It was pointed out that as regard
purported commission of unfair labour practice, the concerned workman
prevaricated his stand from court to court inasmuch as whereas before the F
Industrial Court he invoked clause (g) of Item (I) of Schedule IV of the Act;
before the learned Single Judge, he invoked clause (b) of Item ( 1) thereof but
the Division Bench of the High Court proceeded to pass the impugned
judgment by invoking clause (a), although no foundational fact was pleaded
in support thereof. Reliance placed by the High Court on Colour-Chem Ltd.
v. A.l. Alaspurkar and Ors., [1998] 3 SCC 192, Mr. Adkar would urge, was G
misplaced as the said decision was rendered in the peculiar factual matrix
obtaining therein.

The learned counsel placing reliance on Messrs Bharat Iron Works v.
Bhagubhai Balubhai Patel and Ors., [1976] 1 SCC 518 would submit that in H
'
I

550 SUPREME COURT REPORTS (2005] I S.C.R. •
A a case of proved misconduct, the question of victimization does not arise. ,,•
The said Act was enacted to provide for the recognition of trade
unions for facilitating collective bargaining for certain undertakings; to
state their rights and obligations; to confer certain powers on unrecognized
unions; to provide for declaring certain strikes and lock-outs as illegal
B strikes and lock-outs; to define and provide for the prevention of certain
unfair labour practices; to constitute courts (as independent machinery)
for carrying out the purposes of according recognition to trade unions and
for enforcing the provisions relating to unfair practices; and to provide
for matters connected with the purposes aforesaid. Section 26 of the Act
C defines 'unfair labour practices' to mean any of the practices listed in
Schedules II, III and IV appended thereto. Schedule IV of the Act specifies
general unfair labour practices on the part of the employers, the relevant
clauses whereof are as under :

"!. To discharge or dismiss employee
D (a) by way of victimization;
(b) not in good faith, but in colourable exercise of employer's
right;
(g) for misconduct of a minor or technical character, without
E having any regard to the nature of the particular misconduct or
the past record of service of the employee, so as to amount to a
shockingly disproportionate punishment;"

Section 27 of the Act provides that, inter alia, no employer shall engage
in any unfair labour practice. Section 28 provides for dealing with complaints
F relating to unfair labour practices. The court upon receipt of a complaint is
invested wiih power to cause an investigation to be made and on submissions
of report by the Investigation Officer and in the event no settlement is arrived
at during investigation, the court may proceed to consider the complaint and
give its decision. Section 59 of the Act bars proceedings under the Bombay
or Central Act.
G
The jurisdiction of a Labour Court was, therefore, confined to make an
enquiry and pass an order thereupon as to whether the Appellant herein had
committed an act of unfair labour practice within the meaning of Section 26
read with the relevant provisions of Item I of Schedule IV of the Act.

H Before we proceed to determine the merit of the decision rendered by
BHARAT FORGE CO. LTD. v. \J.M. NAKATE [SINHA, J.) 551
the Division Bench, it is useful to notice that the act of misconduct committed A
by the Respondent was admitted by him in terms of his letter dated 26.8.1983
stating :

"I, Uttam Manohar Nakate, No.3638, age 37, being present give
statement such as :-
B
I have been working with Bharat Forge Company for 14 years.
Earlier I used to work in Cranckshop for last 6 years. I have been
working in Production Development Department.

..... From 28.8.1983 I have been working first shift and I have been
regular in first shift. Today on 26.8.1983 I came to work at 7:00 and C
as usual I was working. At about 11: 15 to 11 :30 I suffered stomach
ache while pushing trolly. I told my partner Mr. A.G. Mistry that I
would take some rest and accordingly I slept on the iron plate. At
about I I :40 security officer Shri Dashputre and Shri Kelkar woke me
up. Our supervisor Mr. Narkar was there. I did not ask permission
from Mr. Narkar. Secondly our lunch interval was about to start and D
therefore, I was to work in the lunch interval therefore, I took rest
before hand.

Only because I suffered ache I took rest. Please forgive for one
time.
E
I read my statement and I state that it is correct."

It is also pertinent to note that the Enquiry Officer in his report
categorically stated as to how the Respondent had been conducting himself
during the domestic enquiry proceeding observing :
F
"On 24.9.1983 Mr. Nakate sent an application along with Private
Doctor's certificate submitting that he was sick as well as he was
mentally disturbed. On this application I wrote the next date of enquiry
as 25.9.1983. On 25.9.1983, Mr. Nakate was present and submitted
that he was not feeling well therefore he was unable to attend the
enquiry. When I asked him he told me that he had not come for G
attending the enquiry. The certificate was in his vehicle and he had
come only for asking the adjournment. Mr. Sagade submitted that
though Mr. Nakate is covered under ESI Scheme I have accepted the
Private Doctor's certificate at Ex. 7. Mr. Nakate should have brought
ESI Doctor's certificate for his sickness. The company does not accept H
552 SUPREME COURT REPORTS [2005] I S.C.R.

A the Private Doctor's certificate. Considering the sequence of the
incidence Mr. Sagade further stated that Mr. Nakate was deliberately
advancing some or the other reasons to dodge the enquiry. He further
stated that if Mr. Nakate was not feeling well he could have sent ES!
certificate for his sickness on 24.9.1983 onwards. However he has
done so. I directed Mr. Nakate to go and get the certificate which
B according to him was in his vehicle. Accordingly Mr. Nakate went
out of cabin. After about 10-15 minutes he came back and submitted
an application at Ex. 8 stating that as he was mentally disturbed and
he was not feeling well the enquiry be adjourned for 8 days. I again
and again questioned him about the certificate for which he had gone. .,..
c Mr. Nakate did not give me any reply regarding the certificate. He
was again and again saying only one thing that he should be given
time. Because of this I came to the conclusion that no certificate was
kept in the vehicle of Mr. Nakate and the reason mental disturbance
advanced by Mr. Nakate was only to avoid the enquiry. Therefore, I
rejected the application for the adjournment . Therefore, I asked Mr.
D Nakate about his representative. Mr. Nakate submitted that his
representative was waiting at the Gate No. I of the Company. I directed
Mr. Sagade to send for Mr. Salvi who was standing at the Gate No. I.
Mr. Nakate in the meantime told me that the enquiry papers are with
Mr. Salvi. Mr. Kelkar the Security Officer submitted his report at
E Ex.9 that there is no person by name Mr. Datta Salvi at gate No. I.
I once again asked Mr. Nakate about his representative and instead
of reply he started saying that he had severe stomach-ache and stated
that he was not willing to say anything and asked for adjournment.
I rejected this request also as since beginning of enquiry on 25.9 .1983
Mr. Nakate was deliberately advancing one after another false reasons
F to get the adjournment. I specifically told Mr. Nakate that the enquiry
would be conducted ex parte if he does not participate. Mr. Nakate
left the place of enquiry without saying anything. I therefore decided
to conduct the enquiry ex parte and directed Mr. Sagade to adduce
the evidence on behalf of the company."
G The Labour Court, as noticed hereinbefore, in its order dated 21.5.1985
held that the enquiry was proper and the finding of the Enquiry Officer was
not perverse. The learned Labour Court, however, in its order dated 31. 7.1985
passed an order of reinstatement with 50% back-wages holding :

" ... Obviously, this lapse on his part does not show that at any
H
BHARAT FORGE CO. LTD. v. U.M. NAKATE [SINHA. J.] 553
point of time he indulged in gross misconduct which affected adversely A
to the interest of the respondent company. In the case at hand, the
charges regarding sleeping during duty hours, no doubt, appear to be
grave and serious nature and such sort of tendencies cannot be
appreciated and they deserve to be curbed with heavy hands. If such
misconducts are viewed with leniency, it will have adverse effect on B
the peace and tranquility of the peaceful functioning of the company,
but, in the instant case, we cannot adopt this harsh view. It is because
the length of service of the complainant is of longer period of 10
years and for one lapse of this nature it is not proper to sack him from
.....
the services. 1 think, therefore, by imposing lesser punishment it would
be better if one more chance is given to him to serve the respondent C
company. Viewed from this angle, I think, the punishment of removal
imposed upon him by the respondent is absolutely harsh and
disproportionate and no any reasonable employer would impose such
punishment in such circumstances."

No sufficient or cogent reason, in our opinion, was assigned by the D
learned Labour Court as to why a lenient view should be taken. The Revisional
Court while allowing the Revision Application of the Appellant and dismissing
the Revision Application of the Respondent came to the conclusion that as
the misconduct has been proved and relying on the decision of this Court in
Bhagubhai Ba/ubhai Patel (supra) where it was opined that a proved E
misconduct is anti thesis of victimization in the industrial relations; held :

"Therefore, in granting the relief of reduction of the nature of
punishment, the learned judge of the Labour Court exceeded his
jurisdiction and committed an error, apparent on the face of the record ..
In any event, since the learned Labour Judge has found that the F
misconduct of sleeping during duty hours, was grave and serious, and
such tendencies deserved to be curbed with heavy hands and since he
had accepted the position of the past record of the Respondent, the
length of ten years of his service, hardly constituted any mitigating
circumstances. In fact, the Respondent had been given sufficient G
opportunity to improve himself. In these circumstances, the le1rned
Labour Judge was wholly unjustified in interfering with the
punishment. It is material to note that he has no where found that the
punishment was shockingly disproportionate."

The said order of the Revisional Authority was upheld by the learned H
I
""!'"'

554 SUPREME COURT REPORTS (2005) I S.C.R.

A Single Judge of the High Court stating :
"That sleeping in duty is a serious misconduct, which ought not to be
overlooked and showing leniency in such a matter was likely to have
a deleterious effect on discipline in the factory, are findings which
the Labour Court has itself arrived at. As to quantum of punishment,
B the First Respondent-employer was required to consider the past record
and other attendant circumstances. The past record had two aspects,
its length of I 0 years and it is being dotted with previous actions for
misconduct. To over emphasis the length of the service to the detriment
of previous disciplinary action, is discounting quality as against
c quantity."

The Division Bench of the High Court also found commission of major
misconduct on the part of the Respondent but prqceeded to examine the
question as to whether despite such proved misconduct the punishment
awarded by the employer on him was grossly disproportionate and would be
D an unfair labour practice being an instance of legal victimization under clause
(I) of Item I of Schedule IV of the Act. Relying on or on the basis of
Colour-Chem Ltd (supra), the Division Bench held :

" .... The question that arises for our consideration is whether looking
to the nature of the proved charge that the employee was found
E sleeping during duty hours and was awakened by the security officer,
can it be said that the punishment of dismissal is shockingly or grossly
disproportionate. If the answer is in affirmative obviously, such
punishment could be treated as legal victimization and employer would
be guilty of having engaged in an unfair labour practice under clause
F (a) of Item 1 of Schedule IV"

Upon taking into consideration the gravity of past misconduct, it was
observed :

" ...... We find that looking to the nature of the charge, i.e. the employee
was found sleeping during duty hours, the employee could not have
G
been inflicted with the punishment of dismissal. The past record which
has been referred to hereinabove and the misconduct proved did not
justify the punishment of dismissal as no reasonable employer would
ever impose the punishment of dismissal in such circumstances"

H The Division Bench, however, in stead and place of passing an order
BHARAT FORGE CO. LTO. v. U.M. NAKATE [SINHA, .I.] 555

of reinstatement upon taking into consideration the fact that he was out of the A
job for about 15 years and hardly 5-6 years' job is left, directed payment of
a sum of Rs. 2,50,000 to the Respondent.

Colour-Chem Ltd (supra) whereupon strong reliance has been placed
by the Division Bench of the High Court is an authority for the proposition
that Clause (g) of Item I of Schedule IV of the Act is relatable to a minor B
or technical misconduct which in a given set of cases may amount to resulting
in a shockingly disproportionate punishment if they are followed by discharge
or dismissal of the delinquent. This Court therein, however, referring to
.. dictionary meaning observed that the term "victimization" is of comprehensive
import. It may be victimization in fact or in law. As regard factual victimization C
it was observed that it may consist of diverse acts of employers who are out
to drive out and punish an employee for no real reason and for extraneous
reasons. It further proceeded to observe :

"There can be in addition legal victimization and it is this type of
victimization which is contemplated by the decision of this Court in D
Hind Construction [1965] 2 SCR 85. It must, therefore, be held that
if the punishment of dismissal or discharge is found shockingly
disproportionate by the Court regard being had to be the particular
major misconduct and the past service record of the delinquent or is
such as no reasonable employer could every impose in like
circumstances, it would be unfair labour practice by itself being an E
instance of victimization, in law or legal victimization independent of
factual victimization, if any. Such an unfair labour practice is covered
by the present Act by enactment of clause (a) of Item 1 of Schedule
IV of the Act as it would be an act of victimization in law as clearly
ruled by this Court in the aforesaid decision" F
In that case the Respondents therein were punished although ten other
mazdoors who were also found to be sleeping were let off. This Court noticed
that the Respondents therein were although assigned more responsible duties
as compared to the mazdoors but in the background of the surrounding
circumstances and especially in the light of their past service record there G
was no escape from the conclusion that the punishment of dismissal imposed
on them for such misconduct was grossly and shockingly disproportionate.

Cho/our-Chem Ltd. (supra) was, thus, rendered in the fact situation
obtaining therein. It is not an authority for the proposition that in a case
where an employee is found to be sleeping during working hours, imposition H
556 SUPREME COURT REPORTS (2005) 1 S.C.R.

A of punishment of dismissal, despite his past bad records must be held to be
disproportionate to the act of misconduct.

In the instant case although victimization has been taken to be a ground
of complaint, no factual foundation therefor was laid and it was confined to
quoting only the legal provisions. No plea of legal victimization was also
B taken in the complaint petition.

A bench of this Court in UP. State Road Transport Corporation v.
Mohan Lal Gupta and Ors., [2000] 9 SCC 521, opined :

"The learned advocate appearing in support of the appeal mainly
c contended on two counts. On the first, it has been very strenuously
contended as to whether the Labour Court can alter the punishment
awarded to Respondent I workman upon recording a finding that the
charges have duly been proved and secondly, it has been contended
as to whether the employee who has admittedly misappropriated the
property of the employer Corporation can be allowed to be retained
D
in service.

These two issues are undoubtedly of some importance. The
workman concerned during the course of inquiry in no uncertain
terms admitted his guilt though however he has stated that the same
amounted to mere negligence and not a deliberate act But the Labour
E
Court being the fact finding court came to the conclusion that the
charges stood proved and we are not in a position to reassess the
factual situation at this stage of the proceedings under Article 136 of
the Constitution. The finding as regards the proof of charges shall
have to be taken as accepted and we do not see any perversity therein
F having regard to the state of facts more so by reason of acceptance
of charge by the delinquent employee."

Yet again in UP. State Road Transport Corpn. v. Subhash Chandra
Sharma and Ors., (2000] 3 SCC 324, upon noticing Colour-Chem Ltd, (supra),
this Court observed :
G
"The charge against the respondent was that he, in a drunken
state, along with the conductor went to the Assistant Cashier in the
cash room of the appellant and demanded money from the Assistant
Cashier. When the Assistant Cashier refused, the respondent abused
him and threatened to assault him. It was certainly a serious charge
H
BHARAT FORGE CO. LTD. v. U.M. NAKATE (SINHA, J.] 557
of misconduct against the respondent. In such circumstances, the A
Labour Court was not justified in interfering with the order of removal
of the respondent from the service when the charge against him stood
proved. Rather we find that the discretion exercised by the Labour
Court in the circumstances of the present case was capricious and
arbitrary and certainly not justified. It could not be said that the B
punishment awarded to the respondent was in any way "shockingly
disproportionate" to the nature of the charge foQnd proved against
him. In our opinion, the High Court failed to exercise its jurisdiction
under Article 226 of the Constitution and did not correct the erroneous
order of the Labour Court which, if allowed to stand, would certainly
result in a miscarriage of justice." c
Each case, therefore, has to be decided on its own facts.

We have noticed hereinbefore that all the courts have answered the
. question as regard commission of misconduct by the Respondent in one
voice. The Labour Court evidently had taken recourse to Clause (g) of Item D
I of Schedule IV of the Act which ex facie was inapplicable. The said
provision clearly postulates two situations, namely, (i) the misconduct should
be of minor or technical character; and (ii) the punishment is a shockingly
disproportionate without having any regard to the nature of the particular
misconduct or the past record of service of the employee. The past record of
service, therefore, is a relevant factor for considering as to whether the E
punishment imposed upon the delinquent employee is shockingly
disproportionate or not. As has been noticed hereinbefore, before the learned
Single Judge an attempt on the part of the Respondent to take recourse to
Clause (b) ofltem (I) of Schedule IV failed. In absence of any plea of factual
victimization and furthermore in absence of any foundational fact having p
been laid down for arriving at a conclusion of the legal victimization, in our
opinion, the Division Bench committed a manifest error in invoking Clause
(a) thereof.

The Division Bench, thus, was not correct in relying on Colour-Chem
ltd (supra) and failed to notice the distinguishing features thereof. A decision, G
as is well-known, is an authority of what it decides and not what can logically
be deduced therefrom. [See Cement Corporation of India Ltd., v. Purya and
Ors., [2004] 8 SCC 270.

In Bhagubhai Balubhai Patel (supra), this Court observed :
H
558 SUPREME COURT REPORTS [2005] I S.C.R.

A "In such a case the employee, found guilty, cannot be equated with
a victim or a scapegoat and the plea of victimization as a defence will
fall flat. This is why once, in the opinion of the tribunal a gross
misconduct is established, as required, on legal evidence either in a
fairly conducted domestic enquiry or before the tribunal on merits,
the plea of victimization will not carry the case of the employee any
B further. A proved misconduct is antithesis of victimization as
understood in industrial relations. This is not to say that the tribunal
has no jurisdiction to interfere with an order of dismissal on proof of
victimization."
>
C It was, therefore, obligatory on the part of the Respondent to plead and
prove the acts of victimization. He failed to do so.

Furthermore, it is trite, the Labour Court or the Industrial Tribunal, as
the case may be, in terms of the provisions of the Act, must act within the
four-corner thereof. The Industrial Courts would not sit in appeal over the
D decision of the employer unless there exists a statutory provision in this
behalf. Although its jurisdiction is wide but the same must be applied in
ternlS of the provisions of the statute and no other.

If the punishment is harsh, albeit a lesser punishment may be imposed,
but such an order cannot be passed on an irrational or extraneous factor and
E certainly not on a compassionate ground.

In Regional Manager, Rajasthan State Road Transport Corporation v.
Sohan Lal, [2004] 8 SCC 218, it has been held that it is not the ncrmal
jurisdiction of the superior courts to interfere with the quantum of sentence
unless it is wholly disproportionate to the misconduct proved. Such is not the
F case herein. In the facts and circumstances of the case and having regard to
the past conduct of the Respondent as also his conduct during the domestic
enquiry proceeding, we cannot say that the quantum of punishment imposed
upon the Respondent was wholly disproportionate to his act of misconduct
or otherwise arbitrary.
G For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The Appeal is allowed. However,
there shall be no order as to costs.

K.K.T. Appeal allowed.