TaxTMI 
TaxTMI 
2005 (1) TMI 701
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....int of unfair labour practice as specified under Item 1(a), (b), (d), (f) 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) 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 terms of its order dated 31.7.1985, the Labour 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. Aggrieved by and dissatisfied therewith both the parties herein p....
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....sion 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. vs. A.L. Alaspurkar and Others [(1998) 3 SCC 192], Mr. Adkar would urge, was misplaced as the said decision was rendered in the peculiar factual matrix obtaining therein. The learned counsel placing reliance on Messrs Bharat Iron Works vs. Bhagubhai Balubhai Patel and Others [(1976) 1 SCC 518] would submit that in 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 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 ma....
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....rest and accordingly I slept on the iron plate. At about 11:40 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 therefore, I was to work in the lunch interval therefore, I took rest beforehand. Only because I suffered ache I took rest. Please forgive for one time. 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 : "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 attending the enquiry. The certificate was in his vehicle and he had come only for asking the adjournment. Mr. Sagad....
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..... Sagade to adduce the evidence on behalf of the company." 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 point of time he indulged in gross misconduct which affected adversely 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 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. I think, therefore, by imposing lesser punishment it would be better if on....
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.... as against quantity." The Division Bench of the High Court also found commission of major misconduct on the part of the Respondent but proceeded 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 an unfair labour practice being an instance of legal victimization under clause (1) of Item 1 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 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 (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 sl....
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....e 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 was no escape from the conclusion that the punishment of dismissal imposed on them for such misconduct was grossly and shockingly disproportionate. Cholour-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 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 taken in the complaint petition. A bench of this Court in U.P. State Road Transport Corporation vs. Mohan Lal Gupta and Others [(2000) 9 SCC 521], opined : "The learned advocate appearing in support of the appeal mainly c....
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....miscarriage of justice." 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 1 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 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) of Item (1) of Schedule IV failed. In absence of any plea of factual victimization and furthermore in absence of any foundational fact having been laid down for arriving at a conclusion of the legal victimization, in our op....