Bombay Hospital Trust Vs Chandrika Prasad and Anr.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.342 OF 2004

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Bombay Hospital Trust.. Petitioner

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versus

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Shri Chandrika Prasad & anr.. Respondents

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Mr.C.U.Singh with Mr Mahesh Londhe i/b Sanjay
& Co for Petr.

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 Udeshi

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Mr S.S.Chaubal for Respt no.1 (absent when called)

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CORAM : D.G. KARNIK, J

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DATED : 10th August 2005.

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P.C.

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1. Heard learned counsel for the petitioner.

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2. This writ petition is directed against the
judgment and award dated 7th November, 2003 passed
by the Labour Court, Mumbai answering the reference
under section 10 of the Industrial Disputes Act

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(for short the I.D.Act) in favour of the
respondents and ordering his reinstatement with

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continuity of service and 50 % of the back wages.

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3. The petitioner is a charitable trust which runs
a well known hospital known as ’Bombay Hospital’ in
Mumbai. The respondent no.1 was employed by the
petitioner as a workman for cleaning and polishing
of tiles in the hospital. A counselling letter was
issued to the respondent no.1 on 3rd January 1991
for breaking the tiles while polishing. The angry
respondent no. 1 went to the lady house keeping
manager on the first floor on 4th July 1991 and
accused her of instigating complaints against him.
In the presence of supervisor Mr.Jaswant Singh and
typist Miss Sangita he threatened her that he would
prevent her walking on the roads. A charge sheet
was issued to the respondent no. 1 on 9th July
1991 for the alleged misconduct of threatening the
lady house keeping manager in the manner mentioned
above. After holding a regular inquiry in which
the respondent no.1 was found to be guilty an order
of discharge was issued to the respondent no. 1 by
way of punishment. Being aggrieved by the
punishment imposed the respondent no. 1 approached
the Labour Commissioner who made a reference under
section 10 of the Act for adjudication by the

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Labour Court. By an order dated 7th November 2003
the Labour Court ordered reinstatement of the
respondent no.1 with continuuity of service and 50
% of the wages. That order is impugned in this
petition.

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4. The Labour Court firstly considered whether the
inquiry held against the respondent no. 1 was fair
and proper and by an award, part I, dated 14th
March 1997 held that the inquiry conducted against
the respondent no. 1 was fair and proper. Both
the parties were thereafter were directed to lead
their evidence if any, on other issues. After
scanning and evaluating the evidence adduced before
the enquiry officer the Labour court came to the
conclusion that though the inquiry was fair and
proper the findings of guilt recorded by the
enquiry officer were not just and proper. In view
of this an opportunity was given to the petitioner
to justify the order of discharge for adducing the
evidence before the Labour Court. The petitioner
thereafter examined two more witnesses namely Mr
Jaswant Singh in whose presence threats were given
and Commodore R.P.Rai. The respondent no. 1 also
examined himself. After considering the evidence

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adduced by the parties the Labour Court came to the
conclusion that charges against the respondent no.1
were proved. In para 15 of the order the labour
court has stated :

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" In my view both charges are proved.
Evidence of a single witness Jaswant Singh
is sufficient to hold all charges of
misconduct are proved. "

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However, after holding that all the charges were
proved the Labour Court held that the punishment of
discharge from service was disproportionate to the
misconduct and therefore ordered reinstatement with
continuity of service and 50 % back wages. That
order is impugned in this petition.

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5. Learned counsel for the petitioner submits that
the Labour Court erred in interferring with the
quantum of the punishment without recording
adequate and sufficient reasons. He submits that
if any subordinate workmen threatens a supervisory
staff and that too a threat of preventing the
supervisory staff from walking on the roads
(implying that physical harm would be caused to the
supervisory staff outside the place of employment)
then no leniency can be shown for such acts of
misconduct. Such acts are not only acts of

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insubordination but would threaten the smooth
administration of the hospital which is essential
for the well being of the patients. Any leniency
would set up a bad precedent and a ward boy may
tomorrow threaten the nurses and even doctors on
duty. The discretion which was exercised by the
management in imposing punishment of discharge was
proper and the Labour Court ought not to have
interfered in the quantum of punishment without
their being any valid reason. Counsel further
submits that no evidence of extenuating
circumstances was ever adduced and that was not the
ground on which the Labour Court reduced the
punishment. In particular he invited my attention
to the reasons given by the labour court for
reducing the punishment which in verbatim are
extracted below :

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" To my mind, the second party might have
used threatening language. But, the second
party has not committed act of dire
consequences. No person of ordinary
prudence will come to the conclusion that
punishment of discharge is justifiable on
the part of the first party. The first
party could have inflicted punishment of
four days suspension as per model standing
orders on the second party. "

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6. The substance of the reasoning of the Labour
Court appears to be that the lady house keeping

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manager was only threatened and not actually
assaulted. In my view, to insist for the
commission of assault for inflicting of the
punishment would be improper. If a serious threat
of physical harm is issued by a workman to a member
of supervisory staff in presence of other
subordinates the very morale of the supervisory
staff is likely to be adversely affected. The
supervisory staff may thereafter shun taking action
against the erring workman. Therefore the fact
that there were only threats of assault and assault
was not committed is no ground for interfering with
the punishment imposed by the management.

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7. No doubt it is true that after introduction of
section 11-A in the I.D.Act certain amount of
discretion is vested with the Labour
Court/Industrial Tribunal for interfering with the
quantum of punishment awarded by the management
where a workman is found guilty of a misconduct.
The area of discretion is well defined in the
judgment of the Supreme Court rendered in Mahindra
and Mahindra Ltd vs N.B.Narawade reported in 2005
(1) CLR 803. In that case the workman was
dismissed for abusing the supervisory staff in

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filthy language without any provocation. The
labour court came to the conclusion that the
punishment imposed was harsh and improper and held
that denying of 1/3rd of back wages would be
sufficient punishment. The labour court
accordingly ordered reinstatement with 2/3rd back
wages. A single Judge of the High Court dismissed
the writ petition holding that denial of 1/3rd back
wages was good punishment as it would act as
deterrent and reformative. The Division Bench
confirmed the order with a modification that 60% of
the back wages should be denied by way of
punishment. Reversing the judgment of the Division
Bench the Supreme Court held that the discretion
under section 11-A of the Act cannot be used to
reduce the punishment by way of sympathy. As
regards the use of discretion under section 11-A
the Supreme Court, observed :

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" The discretion 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 requires the
reduction of the sentence or the 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

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of the Act and reduce the punishment. "

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8. The case at hand is clearly covered by these
observations. In the present case, it was proved
that the respondent no.1 had threatened the lady
house keeping manager in the presence of Jaswant
Singh, another subordinate staff. The threat was
that he would see how she walks on the roads
thereby indicating that physical harm would be done
to her while she was without the management’s
protection outside the place of employment and on
the streets. This was the case of not only abusive
language but threats of physical harm. In Mahendra
and Mahendra Ltd the Supreme Court found that
discretion to set aside dismissal on the ground of
use of abusive language against the supervisory
staff without any provocation could not be
exercised under section 11-A. If so discharge on
the ground of threats issued to the managerial
persons the punishment cannot be reduced in
exercise of the discretion under section 11-A of
the Act in the absence of any extenuating
circumstances. The Labour Court should not have
reduced the quantum of punishnment.

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9. For these reasons, the petition succeeds. The

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impugned judgment is set aside. The reference is
answered in the negative. Rule is made absolute to
the extent mentioned above.

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D.G.KARNIK, J

Bombay Hospital Trust v. Chandrika Prasad and Anr.

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Bombay Hospital Trust v. Chandrika Prasad and Anr.

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