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Punishment of dismissal from service is harsh and disproportionate and the same has to be set aside.= CIVIL APPEAL NO. 10125 OF 2014 (Arising out of SLP (Civil) 37619/2012) COLLECTOR SINGH …Appellant Versus L.M.L. LTD., KANPUR ..Respondent

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10125 OF 2014
(Arising out of SLP (Civil) 37619/2012)
COLLECTOR SINGH …Appellant

Versus

L.M.L. LTD., KANPUR ..Respondent

J U D G M E N T

R. BANUMATHI, J.

Leave granted.
2. Whether the punishment of dismissal from service of the
appellant is disproportionate to the act of misconduct proved against the
appellant and whether the concurrent findings of the Courts below need to
be interfered with are the points falling for consideration in this appeal.
3. Brief facts which led to the filing of this appeal are as
follows:- The appellant was working as a semi-skilled workman since
15.8.1986 in the respondent-company, namely, M/s. L.M.L. Limited (Scooter
Unit), Kanpur. The appellant was served with a charge-sheet on 18.4.1992
stating that on that date, he threw jute/cotton waste balls hitting the
face of Laxman Sharma, Foreman in the said company and on objecting to the
same, the appellant is alleged to have further abused him with filthy
language and also threatened him with dire consequences outside the
premises of their factory. On 25.4.1992, the appellant submitted an
apology letter stating that he had thrown piece of jute which fell on
Foreman Laxman Sharma by mistake and seeking pardon for the same. A
departmental inquiry was conducted on 25.5.1992 and the appellant was given
adequate opportunity to cross-examine the witnesses as well as for putting
forth his defence. The Enquiry Officer submitted his report finding that
the appellant was guilty of misconduct and on the basis of the enquiry
report, the appellant was dismissed from the services of the company by an
order dated 24.6.1992.
4. Aggrieved by the order of dismissal, the appellant raised an
industrial dispute which was registered as Adjudication No.178/1994 before
the Labour Court, Kanpur. The Labour Court relied upon the letter of
apology dated 25.4.1992 and by its award dated 17.9.1996, held that the
termination of services of the appellant was justified. Aggrieved by the
said order, appellant filed a writ petition before the High Court and vide
its order dated 24.9.2012, High Court dismissed the writ petition upholding
the award passed by the Labour Court. Aggrieved by the said order, the
appellant has filed this appeal by way of special leave. This Court has
issued notice limited to the question of quantum of punishment.
5. Learned counsel for the appellant submitted that charges
against the appellant are minor charges of alleged throwing of jute/cotton
waste balls and even assuming that the charges had been proved, dismissal
from service for such a minor act of misdemeanor is harsh and
disproportionate and prayed for reinstatement with consequential benefits.

6. The first limb of contention advanced at the hands of the
learned counsel for the respondent was that the discretionary power
exercised by the Labour Court under Section 11A of the Industrial Disputes
Act to set aside the punishment of discharge or dismissal has to be
exercised judiciously with care and caution and before exercising the said
discretion, the finding that order of discharge or dismissal was not
justified is necessary. In support of his contention, learned counsel
placed reliance upon the judgment of this Court in Davalsab Husainsab Mulla
vs. North West Karnataka Road Transport Corporation, (2013) 10 SCC 185.
Learned counsel for the respondent then contended that the appellant is a
habitual offender and on a previous occasion, on 18.7.1988 the appellant
had misbehaved with a co-worker whereby a warning notice had been issued to
the appellant and the appellant assured never to repeat such an act. It
was submitted that inspite of such warning the appellant was again defiant
and having regard to the gravity of charges, the Management imposed
punishment of dismissal from service and Labour Court rightly held that
such punishment was justified.
7. Yet another argument advanced on behalf of the respondent was
that use of abusive language against the Foreman is a serious misconduct
and punishment of dismissal from service cannot be said to be harsh or
disproportionate. It was submitted that any leniency towards such
misconduct would have serious impact on the discipline amongst the workmen
in the factory and keeping in view the gravity of the charges proved, the
courts below have rightly declined to interfere with the quantum of
punishment. To substantiate his contention, learned counsel placed
reliance upon a number of judgments.
8. We have given our thoughtful consideration to the rival
contentions of both parties and perused the impugned order and the
materials on record.
9. Insofar as the first limb of contention as to the satisfaction
of Labour Court in interfering with the discretion of the authority,
considering the findings of the courts below in our considered view, the
Labour Court and the High Court did not properly appreciate tenor of the
apology letter. Courts below appear to have proceeded on the premise
that in his apology letter, the appellant has admitted the said incident on
18.4.1992. Courts below held that the charges proved against the workman
are not only throwing jute/cotton waste balls on his superior officer/the
Foreman, but for alleged misbehaviour using filthy language and in such
circumstance, punishment of dismissal imposed by the Management is
justified. By perusal of the contents of the said apology letter, it is
discerned that the appellant has made admission only with respect to
throwing of the jute/cotton waste balls by mistake and further stating that
such a mistake would not be repeated in future and that he be pardoned for
the same. The letter nowhere states that the appellant was involved in the
incident of hurling abuses and using filthy language against his superior
officer. In essence, even the incident of throwing of jute/cotton waste
balls at the Foreman has been stated as a mistake. As we have already
observed use of abusive language is not established by the apology letter.
Therefore, mere act of throwing of jute/cotton waste balls weighing 5 to 10
gms may not by itself lead to imposing punishment of dismissal from
service. In such a situation, we find it difficult to fathom a reason for
placing such excessive reliance on the apology letter by the enquiry
officer appointed for the departmental enquiry as well as the courts below
for justifying the punishment of dismissal from service.
10. Jurisdiction under Article 136 of the Constitution is
extraordinary and interference with the concurrent findings of fact
recorded by the courts below is permissible only in exceptional cases and
not as a matter of course. Where the appreciation of evidence is found to
be wholly unsatisfactory or the conclusion drawn from the same is perverse
in nature, in exercise of the jurisdiction under Article 136 of the
Constitution, this Court may interfere with the concurrent findings for
doing complete justice in the case. In the facts and circumstances of the
case, in our view, it is a fit case to exercise the jurisdiction under
Article 136 of the Constitution to interfere with the conclusion of the
Labour Court upholding the punishment of dismissal as affirmed by the High
Court.
11. Insofar as the next limb of contention at the hands of the
learned counsel for the respondent as to the quantum of punishment, it is
not necessary for us to refer to the plethora of judgments relied upon by
the respondent. In those decisions, the termination of services was held
to be justified on the basis of abusive and filthy language in the light of
the facts and circumstances of those cases. It is well settled that the
court or the tribunal will not normally interfere with the discretion of
the disciplinary authority in imposing of penalty and substitute its own
conclusion or penalty. But the punishment should be commensurate with the
proved misconduct. However, if the penalty imposed is disproportionate with
the misconduct committed and proved, then the Court would appropriately
mould the relief either by directing the disciplinary/appropriate authority
to reconsider the penalty imposed or to shorten the litigation, it may in
exceptional cases even impose appropriate punishment with cogent reasons in
support thereof. This principle was reiterated in various decisions of this
Court in Dev Singh vs. Punjab Tourism Development Corporation. Ltd. & Anr.,
(2003) 8 SCC 9, Om Kumar & Ors. vs. Union of India, (2001) 2 SCC 386,
Union of India & Anr. vs. G. Ganayutham, (1997) 7 SCC 463 and Ex-Naik
Sardar Singh vs. Union of India and Ors., (1991) 3 SCC 213.
12. Considering the scope of judicial review on the quantum of
punishment and referring to various cases in Jai Bhagwan vs. Commissioner
of Police & Ors. (2013) 11 SCC 187, in which one of us (Justice T.S.
Thakur) was a member, this Court held as under:-
“What is the appropriate quantum of punishment to be awarded to a
delinquent is a matter that primarily rests in the discretion of the
disciplinary authority. An authority sitting in appeal over any such order
of punishment is by all means entitled to examine the issue regarding the
quantum of punishment as much as it is entitled to examine whether the
charges have [pic]been satisfactorily proved. But when any such order is
challenged before a Service Tribunal or the High Court the exercise of
discretion by the competent authority in determining and awarding
punishment is generally respected except where the same is found to be so
outrageously disproportionate to the gravity of the misconduct that the
Court considers it be arbitrary in that it is wholly unreasonable. The
superior courts and the Tribunal invoke the doctrine of proportionality
which has been gradually accepted as one of the facets of judicial review.
A punishment that is so excessive or disproportionate to the offence as to
shock the conscience of the Court is seen as unacceptable even when courts
are slow and generally reluctant to interfere with the quantum of
punishment. The law on the subject is well settled by a series of
decisions rendered by this Court…..”
13. Coming to the case at hand, we are of the view that the
punishment of dismissal from service for the misconduct proved against the
appellant is disproportionate to the charges. In Ram Kishan vs. Union of
India & Ors., reported in (1995) 6 SCC 157, the delinquent employee was
dismissed from service for using abusive language against superior officer.
On the facts and circumstances of the case, this Court held that the
punishment was harsh and disproportionate to the gravity of the charge
imputed to the delinquent and modified the penalty to stoppage of two
increments with cumulative effect. The Court held as under:-
“It is next to be seen whether imposition of the punishment of dismissal
from service is proportionate to the gravity of the imputation. When
abusive language is used by anybody against a superior, it must be
understood in the environment in which that person is situated and the
circumstances surrounding the event that led to the use of abusive
language. No strait-jacket formula could be evolved in adjudging whether
the abusive language in the given circumstances would warrant dismissal
from service. Each case has to be considered on its own facts. What was the
nature of the abusive language used by the appellant was not stated.

On the facts and circumstances of the case, we are of the considered view
that the imposition of punishment of dismissal from service is harsh and
disproportionate to the gravity of charge imputed to the delinquent
constable. Accordingly, we set aside the dismissal order…….”
Reference may also be made to the decisions of this Court in Rama Kant
Misra vs. State of Uttar Pradesh & Ors., (1982) 3 SCC 346 and Ved
Prakash Gupta vs. Delton Cable India(P) Ltd.; (1984) 2 SCC 569.
14. The High Court has relied on the judgment in Mahindra and
Mahindra Ltd. vs. N.B.Narawade, (2005) 3 SCC 134, wherein it
was held that the penalty of dismissal on the alleged use of filthy
language is not disproportionate to the charge as it disturbs the
discipline in the factory. We are of the view that in the facts and
circumstances of the present case, the above decision may not be
applicable. Considering the totality of the circumstances, in our view,
the punishment of dismissal from service is harsh and disproportionate and
the same has to be set aside.
15. Having said that the punishment of dismissal from service is
harsh and disproportionate, this Court in ordinary course would either
order reinstatement modifying the punishment or remit the matter back to
the disciplinary authority for passing fresh order of punishment. But we
are deliberately avoiding the ordinary course. We are doing so because
nearly two decades have passed since his termination and over these years
the appellant must have been gainfully employed elsewhere. Further, the
appellant was born in the year 1955 and has almost reached the age of
superannuation. In such circumstances, there cannot be any order of
reinstatement and award of lump sum compensation would meet the ends of
justice. Considering the length of service of the appellant in the
establishment and his deprivation of the job over the years and his gainful
employment over the years elsewhere, in our view, lump sum amount of
compensation of Rs.5,00,000/- would meet the ends of justice in lieu of
reinstatement, back wages, gratuity and in full quit of any other amount
payable to the appellant.
16. In the result, the impugned Order of the High Court dated
24.9.2012 passed in Civil Misc. Writ Petition No.12157/1997 confirming the
award of the Labour Court is set aside and the appeal is allowed. The
respondent-management is directed to pay the amount of compensation of
Rs.5,00,000/- to the appellant within a period of six weeks from the date
of receipt of copy of this order failing which, the said amount is payable
with interest at the rate of 9% per annum thereon.

……………………….J.
(T.S. Thakur)
……………………….J.
(R. Banumathi)
New Delhi;
November 11, 2014
———————–
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