M/S. L&T KOMATSU LID.versusN. UDAYAKUMAR

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A                      MIS. L&T KOMATSU LID.
                                     V.
                           N. UDAYAK.UMAR

                          DECEMBER 3, 2007
B
         [DR.ARIJITPASAYAT ANDP.SATHASIVAM,JJ.)


       Industrial Disputes Act, 1947-ss.10 (4A) as introduced by State
  of Karnataka) and 11 A-Dismissal from service-By management
C Pursuant to disciplinary proceedings-On the charge ofabsence from
  duty-Industrial dispute-Courts below upholding the charge, but
  reducing the punishment-On appeal, held: In view of the fact that
  workman was habitual absentee from duty, punishment of dismissal
  justified-Interference by courts below with the quantum of
D punishment not correct.
       Respondent-workman was dismissed from service by appellant-
  Management, pursuant to disciplinary proceedings on the charge
  of unauthorized absence from duty. Industrial dispute was raised.
  Labour Court though concurred with the finding of unauthorized
E absence ofworkman, but found the punishment disproportionate to
  the gravity of the charge. It directed his reinstatement with continuity
  of service, but without back wages. It awarded punishment of
  stoppage of four increments with cumulative effect. In Writ Petition,
  Single Judge of High Court modified the award, directing
F reinstatement without continuity of service. Management as well as
  workman filed writ appeals. Division Bench of High Court dismissed
  the appeal of management It allowed that of the workman upholding
  the order of Labour Court.
G         In appeal, to this Court management contended that habitual
    absentism was gross violation of discipline; and that the punishment
    was reduced without keeping in view the parameters for the exercise
    of jurisdiction u/s. llA oflndustrial Disputes Act, 1947.
         Allowing the appeal, the Court
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  L&TKOMATSULTD.v.N.UDAYAKUMAR[PASAYAT,J.] 821

      HELD: In the factual background, and in the light of principles A
that habitual absentism means the gross violation of discipline and
that discretion to interference with quantum of punishment awarded
by management is available only on the existence of certain factors
like punishment being disproportionate to the gravity of misconduct
so as to disturb the conscience of the court, or the existence of any B
mitigating circumstances which require the reduction of the sentence,
or the past conduct of the workman which may persuade the Labour
Court to reduce the punishment, (ii) the inevitable conclusion is that
the Labour Court and the High Court were not justified in directing
the reinstatement by interference with the order of termination. The C
Order of termination as passed by the concerned authority stands
restored. [Paras 7, 9and11] [823-G; 825-G; 826-A, B; 829-B-C)
     Mis. Burn and Co. Ltd. v. Their Workmen and Ors., AIR (1959)
SC 529; Life Insurance Corporation ofIndia v. R. Dhandapani, AIR
(2006) SC 615; Mahindra and Mahindra Ltd. v. NB. Narawade, [2005] D
3 SCC 134 and MP. Electricity Boardv. Jagdish Chandra Sharma,
[2005] 3 sec 401, relied on.
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3852 of
2006.
                                                                            E
    From the final Judgmnet and Order dated 10.8.2005 of the High
Court ofKamataka at Bangalore in W.A. Nos. 2449 and 2722/2005
(L-TER).

     Sudhir Chandra, Bharat Sangal, R.R. Kumar, S. Chatterjee, P. Das       F
and Bhagabati Prasad for the Appellant.
    S. Nanda Kumar, Satish Kumar, G. Ananda Selvam and V.N.
Raghupathy for the Respondent.
     The Judgment of the Court was delivered by                             G
      DR ARIJIT PASAYAT, J. I.Challenge in this appeal is to the
judgment rendered by a Division Bench of the Kamataka High Court
allowing the writ appeal filed by the respondent (hereinafter referred to
as the 'workman')while dismissing the writ appeal filed by the appellant.
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    822           SUPREME COURT REPORTS                    [2007] 12 S.C.R.


A         2. Undisputed background facts are as follows:
        Respondent had been working as an employee with Mis. L&T
  Komatsu Ltd., Bangalore. He remained absent unauthorisedly for 105
  days between 1.8.2000 and 30.4.200 I. Disciplinary proceedings were
B initiated against him and a regular departmental enquiry was held. It is
  common case of the parties that the charge of unauthorized absence was
  proved in the said enquiry which has been found to be fair and proper
  and in accordance with the principles of natural justice. The enquiry report
  was accepted by the management and the respondent was dismissed from
C service. This dismissal gave rise to an industrial dispute and the workman
  filed an application under Sub-section (4A) of Section 10 of the Industrial
  Disputes Act, 1947 (as introduced in the State of Karnataka) (for short
  the 'Act'). On a consideration of oral and documentary evidence led by
  the parties and having regard to the fact that the workman had been            t
D remaining absent on several occasions, the Labour Court found that though
  the workman was remaining absent unauthorisedly, the extreme punishment
  of dismissal from service was too harsh and disproportionate to the gravity
  of the charge and that lesser punishment would meet the ends ofjustice.
  Accordingly, the order of dismissal was set aside and the management
E was directed to reinstate the workman with continuity of service but
  without back wages. The Labour Court awarded the punishment of
  stoppage of four increments with cumulative effect. This award came to
  be challenged by the management in the writ petition. On a consideration
  of the contentions advanced before him the Learned Single Judge modified
F the award and deprived the workman from continuity of service. In other
  words, management was directed to reinstate the workman without
  continuity of service while maintaining the remaining part of the award. It
  is against this order that both the management and the workman filed writ
  appeals before the Division Bench.
G        3. Learned Single Judge noted that there were proved cases of
    misconduct of unauthorized absentism for 15 times but the workman had
    not improved his conduct. Notwirhstanding this finding, learned Single
    Judge held that at the relevant point of time the workman was not well
    and was taking treatment at St. Martha Hospital. Accordingly it was held
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       L&TKOMATSULTD.v.N.UDAYAKUMAR[PASAYAT,J.] 823

       that the order of tennination is harsh under the facts and circumstances A
       of the case but looking into the past history directed reinstatement without
       continuity of service and without back wages. By the impugned order
       the Division Bench allowed the appeal filed l:>y the respondent while
       dismissing the appeal filed by the present appellant.
                                                                                    B
             4. In support of the appeal learned counsel for the appellant
       submitted that it was not for the first time that the respondent was guilty
       of absentism; on the contrary there were 15 such earlier instances without
      any justifiable reason. The Labour Court directed reinstatement with
      continuity of service but not back wages. Learned Single Judge, on the
      other hand, instead ofholding that the interference of the Labour Court
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      with the quantum of punishment was not justified, directed reinstatement
      without continuity of service and back wages. The Division Bench with
      noticing the relevant factors has directed reinstatement without back wages
--1   but with continuity of service.
                                                                                    D
             5. It is submitted that habitual absentism is gross violation of
      discipline. It is also submitted that the parameters for the exercise of
      Section l IA of the Act have riot been kept in view by the labour Court
      and the High Court.
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             6. In response, learned counsel for the respondent submitted that
      because of personal problems there was unintentional absence and that
      should not have been seriously viewed. The reply to the second show
      cause notice on which the emph~is is laid by the appellant to contend
      that respondent had admitted his guilt was taken under coercion. It is F
      also submitted that the discretion for exercise ofjurisdiction under Section
      l IA has been rightly exercised.
            7. So far as the question whether habitual absentism means the gross
      violation of discipline, it is relevant to take note of what was stated by
      this Court in Mis. Burn & Co. Ltd. v. Their Workmen and Ors., AIR G
-l
      (1959) SC 529.
             "There should have been an application for leave but Roy thought
             that he could claim as matter of right leave of absence though that
             might be without pennission and though there might not be any H
    824           SUPREME COURT REPORTS                   [2007] 12 S.C.R.


A         application for the same. This was gross violation of discipline.
          Accordingly, if the company had placed him under suspension that
          was in order. On these findings, it seems to us that the Tribunal
          erred in holding that it could not endorse the Company's decision
          to dispense with the services altogether. In our opinion, when the
B         Tribunal upheld the order of suspension it erred in directing that
          Roy must be taken back in his previous post of employment on
          the pay last drawn by him before the order of suspension".

       8. In Life Insurance Corporation ofIndia v. R. Dhandapani, AIR
C (2006) SC 615, it was held follows:
          "It is not necessary to go into in detail regarding the power
          exercisable under Section l lA oftheAct. The power under said
          Section 1lA has to be exercised judiciously and the Industrial
          Tribunal or the Labour Court, as the case may be, is expected to
D         interfere with the decision of a management under Section 11 A of
          the Act only when it is satisfied that punishment imposed by the
          management is wholly and shockingly disproportionate to the
          degree of guilt of the workman concerned. To support its
          conclusion the Industrial Tribunal or the Labour Court, as the case
E         may be, has to give reasons in support of its decision. The power
          has to be exercised judiciously and mere use of the words
          'disproportionate' or 'grossly disproportionate' by itself will not
          be sufficient.
F         9. In recent times, there is an increasing evidence of this, perhaps
          well-meant but wholly unsustainable, tendency towards a
          denudation of the legitimacy ofjudicial reasoning and process. The
          reliefs granted by the Courts must be seen to be logical and tenable
          within the framework of the law and should not incur and justify
G         the criticism that the jurisdiction of the Courts tends to degenerate
          into misplaced sympathy, generosity and private benevolence. It
          is essential to maintain the integrity of legal reasoning and the
          legitimacy of the conclusions. They must emanate logically from
          the legal findings and the judicial results must be seen to be
H         principled and supportable on those findings. Expansive judicial
L&TKOMATSULTD.v.N.UDAYAKUMAR[PASAYAT,J.] 825


      mood of mistaken and misplaced compassion at the expense of A
      the legitimacy of the process will eventually lead to mutually
      irreconcilable situations and denude the judicial process of its
      dignity, authority, predictability and respectability. [See: Kera/a
      Solvent Extractions Ltd. v. A. Unnikrishnan and Anr., (1994)
      1SCALE631].                                                         B
         Though under Section 1lA, the Tribunal has the power to
      reduce the quantum of punishment it has to be done within the
      parameters of law. Possession of power is itself not sufficient; it
      has to be exercised in accordance with law.
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          The High Court found that the Industrial Tribunal had not
      indicated any reason to justify variations of the penalty imposed.
      Though learned Counsel for the respondent tried to justify the
      Award of the Tribunal and submitted that the Tribunal and the
      learned Single Judge have considered the case in its proper D
      perspective, we do not find any substances in the plea Industrial
      Tribunals and Labour Courts are not forums whose task is to dole
      out private benevolence to workmen found by Labour Court/
      Tribunal to be guilty of misconduct. The Tribunal and the High
      Court, in this case, have found a pattern of defiance and proved E
      misconduct on not one but on several occasions. The compassion
      which was shown by the Tribunal and unfortunately endorsed by
      learned single Judge was fully misplaced."

    9. In Mahindra and Mahindra Ltd. v. NB. Narawade, [2005] 3 F
sec 134, is was noted as follows:
      "It is no doubt true that after introduction of Section 11-A in the
      Industrial Disputes Act, certain amount of discretion is vested with
      the Labour Court/Industrial Tribunal iri interfering with the quantum
      of punishment awarded by the management where the workman G
      concerned is found guilty of misconduct The said area of discretion
      has been very well defined by the various judgments of this Court
      referred to hereinabove and it is certainly not unlimited as has been
      observed by the Division Bench of the High Court. The discretion
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    826           SUPREME COURT REPORTS                   [2007] 12 S.C.R.


A         which can be exercised under Section 11-A is available only on
          the existence of certain factors like punishment being
          disproportionate to the gravity of misconduct so as to disturb the
          conscience of the court, or the existence of any mitigating
          circumstances which require the reduction of the sentence, or the
B         past conduct of the workman which may persuade the Labour
          Court to reduce the punishment. In the absence of any such factor
          existing, the Labour Court cannot by way of sympathy alone
          exercise the power under Section 11-A of the Act and reduce the
          punishment. As noticed hereinabove at least in tow of the cases
C         cited before us i.e. Orissa Cement Ltd and New Shorrock Mills
          this Court held: "Punishment of dismissal for using of abusive
          language cannot be held to be disproportionate ." In this case all
          the forums below have held that the language used by the workman
          was filthy. We too are of the opinion that the language used the
D         the workman is such that is cannot be tolerated by any civilized
          society. Use of such abusive language against a superior officer, .
          that too not once but twice, in the presence of his subordinates
          cannot be termed to be an indiscipline calling for lesser punishment
          in the absence of any extenuating factor referred to hereinabove".
E
         10. Again in MP. Electricity Board v. Jagdish Chandra Sharma,
    [2005] 3 SCC 401, this Court dealt with the matter as follows:
           "The question then is, whether the interference with the punishment
          by the Labour Court was justified? In other words, the question
F         is whether the punishment imposed was so harsh or so
          disproportionate to the chargeproved, that it warranted or justified
           interference by the Labour Court? Here, it had been clearly found
          that the employee during work, had hit his superior officer with a
          tension screw on his back and on his nose leaving him with a
G         bledding and broken nose. It has also been found that this incident
          was followed by the unauthorized absence of the employee. It is
          in the context of these charges found established that the
          punishment of termination was imposed on the employee. The
          jurisdiction under Section l 07-A of the Act to interfere with
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         L& T K0 MATSU LTD. v. N. UDAYAKUMAR[PASAYAT,J.] 827

)

             punishment when it is a discharge or dismissal can be exercised A
             by the Labour Court only when it is satisfied that the discharge or
             dismissal can be exercisedby the Labour Court only when it is
             satisfied that the discharge or dismissal is not justified. Similarly,
             the High Court gets jurisdiction to interferewith the punishment in
             exercise of its jurisdiction under Article 226 of the Constitution only B
             when it finds that the punishment imposed, is shockingly
             disproportionate to the charge proved. These aspects are well
             settled. In UP. SRTC v. Subhash Chandra Sharma this Court,
             after referring to the scope of interference with punishment under
             Section 11-A of the Industrial Disputes Act, held that the Labour C
             Court was not justified in interfering with the order of removal from
             service when the charge against the employee stood proved. It
             was also held that the jurisdiction vested with the Labour Court
             to inte1fere with punishment was not to be exercised capriciously
             and arbitrarily. It was necessary, in a case where the Labour Court D
             finds the charge proved, for a conclusion to be arrived at that the
             punishment was shockingly disproportionate to the nature of the
             charge found proved, before it could interfere to reduce the
             punishment. In Krishnakali Tea Estate v. Akhil Bharatiya Chah
             Mazdoor Sangh, this Court after referring to the decision in State E
             ofRajasthan v. B.K. Meena also pointed out the of misconduct.
            The said area of discretion has been very well defined by the
            various judgments of this Court referred to hereinabove and it is
            certainly not unlimited as has been observed by the Division Bench
            of the High Court. The discretion which can be exercised under F
            Section 11-A is available only on the existence of certain factors
            like punishment being disproportionate to the gravity of misconduct
            so as to disturb the conscience of the court, or the existence of
            any mitigating circumstances which require the reduction of the
            sentence, or the past conduct of the workman which may persuade G
            the Labour Court to reduce the punishment."
            It may also be noticed that in Orissa Cement Ltd. v.
            Adikanda Sahu and in New Shorrock Mills v. Maheshbhai T.
            Rao, this Court held that use of abusive language against a superior, H
    828           SUPREME COURT REPORTS                    (2007] 12 S.C.R.


A         justified punishment of dismissal. This Court stated "punishment
          of dismissal for using abusive language cannot be held to be
          disproportionate". If that be the position regarding verbal assault,
          we think that the position regarding dismissal for physical assault,

B
          must be found all the more justifiable. Recently, in Muriadih
          Colliery BCC Ltd. v. Bihar Colliery Kamagar Union this Court             t
                                                                                       -
          after referring to and quoting the relevant passages from
          Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor
          Sangh and Tournamulla Estate v. Workmen held: (SCC p. 336,
          para 17) difference between the approaches to be made in a
c         criminal proceeding and a disciplinary proceeding. This Court also
          pointed out that when chares proved were grave, vis-a-vis the
          establishment, interference with punishment of dismissal could not
           be justified. In Bharat Forge Co. Ltd v. Uttam Manohar
          Nakate this Court again reiterated that the jurisdiction to interfere
D          with the punishment should be exercised only when the punishment
           is shockingly disproportionate and that each case had to be decided
           on its facts. This Court also indicated that the Labour Court or
           the Industrial Tribunal, as the case may be, in terms of the
           provisions of the Act, had to act within the four corners thereof.
E          It could not sit in appeal over the decision of the employer unless
           there existed a statutory provision in that behalf. The Tribunal or
           the Lablur Court could not interfere with the quantum of punishment
           based on irrational or extraneous factors and certainly not on what
           it considers a compassionate ground. It is not necessary to multiply
F          authorities on this question, since the matter has been dealt with in
           detail in a recent decision of this Court in Mahindra and Mahindra
           Ltd v. N.B. Narawade. This Court summed up the position thus:
           (SCC p. 141, para 20)
               "20. It is no doubt true that after introduction of Section 11-
G
               A in the Industrial Disputes Act, certain amount of discretion
               is vested with the Labour Court/Industrial Tribunal interfering
               with the quantum of punishment awarded by the management
               where the workman concerned is found guilty. "The courts
               below by condoning an act of physical violence have
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          L&TKOMATSULTD.v.N.UDAYAKUMAR[PASAYAT,J.] 829


                    undermined the discipline in the organization, hence, in the A
                    above factual backdrop, it can never be said that the Industrial
                    Tribunal could have exercised its authority under Section 11-
                    A of the Act to interfere with the punishment of dismissal."
              11. When the factual background is considered in the light of B
         principles indicated above, the inevitable conclusion is that the Labour
         Court and the High Court were not justified in directing the reinstatement
         by interference with the order of termination. The orders are accordingly
         set aside. The Order of termination as passed by the concerned authority
         stands restored. The appeal is allowed with no orders as to costs.
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         K.K.T.                                                  Appeal allowed




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