DAVALSAB HUSAINSAB MULLAversusNORTH WEST KARNATAKA ROAD TRANSPORT CORPORATION

                        [2013] 9 S.C.R. 826


A                DAVALSAB HUSAINSAB MULLA
                                  v.
        NORTH WEST KARNATAKA ROAD TRANSPORT
                       CORPORATION            .
              (Civil Appeal No. 8487 of 2013)
B
                       SEPTEMBER 24, 2013
             [T.S. THAKUR AND FAKKIR MOHAMED
                    IBRAHIM KALIFULLA, JJ.)

C       Labour Law:

       Dismissal of workman - Misconduct - Workman
  travelling in Corporation Bus without ticket - On being caught,
  misbehaving with the checking squad and threatening the
0 Checking Inspector of his life - In disciplinary inquiry charges
  found proved - Past conduct also considered - Order of
  dismissal - Labour Court held the order fully justified - Held:
  Having regard to the gravity of the misconduct found proved
  against the appellant in an enquiry held for that purpose by
E way of disciplinary procedure prescribed in the relevant rules,
  the conclusion of Labour Court on this aspect cannot be
  assailed.

        Industrial Disputes Act, 1947:

F      s. 11-A - Power of Labour Court to give appropriate relief
  in case of discharge of dismissal of workman - Exercise of
  discretion - Explained - Held: In the instant case, Labour
  Court examined the scope of exercising its discretion u/s. 11 A
  in order to interfere with punishment imposed on appellant -
G Having regard to the factors, referred by Labour Court, it rightly
  declined to exercise its discretionary jurisdiction uls. 11 A to
  interfere with the punishment of dismissal - However, it is
  open to appellant or his dependants to approach the
  authorities concerned for settlement of any benefits payable
H                                 826
  DAVALSAB HUSAINSAB MULLA v. NORTH WEST KARNATAKA        827
                  ROAD TRANS. CORP.

under the provisions of the Act as well as under Employees'      A
Pension Scheme, 1995 - Employees' Provident Fund and
Miscellaneous Provisions Act, 1952 - s. 6A.

     The appellant, while working as a driver in the
employment of the respondent Corporation, was found
                                                                 8
to have been travelling in the Corporation bus without
ticket. The checking squad imposed the usual penalty on
him, whereupon he abused the Checking Inspector and
also threatened to do away with his life. He misbehaved
with other officials also. On the following day, he entered      C
the checking section and threatened the Checking
Inspector to burn him in the presence of the staff. A joint
report was submitted by the employees leading to
disciplinary proceedings which culminated in the order
of his dismissal from service. The appellant raised an
industrial dispute and the Labour Court passed the award         D
holding the dismissal as fully justified. In the writ petition
filed by the appellant, the single Judge of the High Court
modified the award of dismissal and ordered withholding
of two increments with cumulative effect with continuity
of service but without back wages. The Division Bench,           E
however, set aside the order of single Judge and restored
the award of dismissal as was passed by the Labour
Court.

    Dismissing the appeal, the Court                             F
     HELD: 1.1. The Labour Court, while considering the
issues raised before it as regards the validity of the
enquiry, examined the procedure followed in the
domestic enquiry and found no flaw in the same. There
is also no flaw in the conclusion of the Labour Court, and       G
the enquiry held against the appellant was fair and
proper. [Para 5] [832-E-G]

    1.2. As regards as the misconduct alleged against the
appellant, apart from his admission that he travelled on         H
   828     SUPREME COURT REPORTS             [2013] 9 S.C.R.

A 30.11.1995 without a valid ticket, his conduct of
  misbehaviour towards his superiors and other
  employees on 30.11.1995 as well as on 01.12.1995 was
  fully established by the evidence placed before the
  enquiry officer and the Labour Court. He also threatened
s the Checking Inspector of his life. The Labour Court
  found that the evidence conclusively proved the
  misconduct alleged against the appellant. The Labour
  Court also made a specific reference to the past conduct
  of the appellant wherein he was involved in 27 other
c default cases, and on a number of earlier occasions also
  he misbehaved with superior officers and refused to
  perform his duties, apart from disobeying the orders of
  his superiors, and his involvement in a case of assault
  on other employees. The cumulative effect of the said
  facts resulted in the Corporation passing the order of
0
  dismissal against the appellant. Having regard to the
  gravity of the misconduct found proved against the
  appellant in an enquiry held for that purpose by way of
  disciplinary procedure prescribed in the relevant rules,
  the conclusion of the Labour Court on this aspect cannot ·
E be assailed. [para 5-7] [832-G; 833-A-B, C-D; 834-A-B, G]

       2.1. As far as the discretionary power of the Labour
  Court u/s. 11 A of the Industrial Disputes Act, 1947 is
  concerned, the exercise of such power will always have
F to be made judicially and judiciously. Under the said
  provision, wide powers have been vested with the Labour
  Court to set aside the punishment of discharge or
  dismissal and in its place award any lesser punishment.
  Therefore, high amount of care and caution should be
G exercised by the Labour Court while invoking the said
  discretionary jurisdiction for replacing the punishment of
  discharge or dismissal. Before exercising the said
  discretion, the Labour Court has to necessarily reach a
  finding that the order of discharge or dismissal was not
H justified. The satisfaction to be arrived at by the Labour
  DAVALSAB HUSAINSAB MULLA v. NORTH WEST KARNATAKA       829
                  ROAD TRANS. CORP.

Court while exercising its discretionary jurisdiction uls.      A
11A of the Act must be based on sound reasoning and
cannot be arrived at in a casual fashion. In this context, it
will be appropriate for the Labour Court to assess the
gravity and magnitude of the misconduct found proved
against the employee concerned, the past conduct of the         B
employee, the repercussion it will have in the event of
interference with the order of discharge or dismissal in
the day to day functioning of the establishment which will
have far reaching effects on the other workmen etc. It
should always be remembered that any misplaced                  c
sympathy would cause more harm to the establishment,
which provides source of livelihood for a large number of
employees, than any good for the employee concerned.
[Para 8-9] [834-H; 835-A-E; 836-A-C]
    Royal Printing Works v. Industrial Tribunal and Another     D   ·
1959 (2) LLJ 619 - relied on.
    2.2. In the instant case, Labour Court examined the
scope of exercising its discretion uls. 11A of the Act in
order to interfere with the punishment imposed on the           E
appellant. Having regard to the factors referred by the
Labour Court, it rightly declined to exercise its
discretionary jurisdiction u/s. 11A of the Act. The single
Judge of the High Court by merely stating that the Labour
Court had only considered the interest of the Corporation       F
and not the interest of the employee, set aside the said
award which was correctly rectified by the Division
Bench. The Division Bench was, therefore, well in order
in having set aside the order of the Single Judge and
restored the order of dismissal passed against the              G
appellant. It leaves no scope to interfere with the order
impugned in the appeal. [Para 5,7 and 10] [833-B-C; 834-
G-H; 837-F-G]

    3. Having regard to the gravity of the misconduct
found proved against the appellant and his past record          H
        830       SUPREME COURT REPORTS               [2013] 9 S.C.R.


    A of service, he deserves no sympathy. However, in the
      light of the provisions prevailing under Employees'
      Pension Scheme, 1995, formulated u/s. 6A of the
      Employees' Provident Fund and Miscellaneous
      Provisions Act, 1952, it is open to the appellant or his
    B dependants to approach the authorities concerned for
      settlement of any benefits payable under the provisions
      of the said Act as well as under the Employees' Pension
      Scheme, 1995. [Para 11 and 13] [838-B; 839-B-C]
                              Case Law Reference:
    c
              1959 (2) LLJ 619         Relied on           Para 9
            CIVIL APPELLATE JURISDICTION : Civil Appeal No.
        8487 of 2013.

    D       From the Judgment & Order dated 13.08.2009 of the High
        Court of Karnataka Circuit Bench at Dharwad in Writ Appeal
        No. 2499 of 2007 (LK).

              Shankar Divate for the Appellant.
    E         V.N. Raghupathy for the Respondent.

              The Judgment of the Court was delivered by

          FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
    F granted.

           2. This appeal is directed against the judgment of the
      Division Bench of Karnataka High Court dated 13.08.2009
      passed in Writ Appeal No.5040 of 2008 and Writ Appeal No.
      2499 of 2007. By the common judgment, the Division Bench,
    G while setting aside the order of the Learned Single Judge
      reducing the quantum of punishment imposed on the appellant,
      upheld the order of dismissal passed by the respondent-
      Corporation. In this appeal the challenge is to the order passed
      in Writ Appeal No.2499 of 2007.
I   H
  DAVALSAB HUSAINSAB MULLA v. NORTH WEST KARNATAKA 831
ROAD TRANS. CORP [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

       3. Shorn of unnecessary details, the case of the appellant   A
was that he was working as a driver in the respondent
Corporation and that on 30.11.1995, he was travelling in the
Corporation bus without ticket which was detected by the
checking squad. The checking squad imposed the usual
penalty on the appellant. It is stated that enraged by the action   B
of the checking squad, the appellant abused the Checking
Inspector by using filthy language and also threatened to do
away with his life. The appellant also stated to have attempted
to assault the Checking Inspector. Subsequently, he is stated
to have approached the coordinator in the Divisional Office         c
Belgaum and behaved in an arrogant manner with the said
officer. Apart from abusing the officials of the checking squad
in filthy language in the presence of other employees, he is also
stated to have thrown a challenge that he would close the gate
of the office and indulge in Satyagraha. Again on the next day
                                                                    0
i.e. on 01.12.1995, he is sated to have entered the Divisional
Line checking section and threatened the Checking Inspector
by stating that he would burn him in the presence of other
officials and the employees. A joint report was submitted by
those employees based on which a charge sheet was issued
to the appellant calling for his explanation. The appellant while
                                                                    E
denying the charges replied that penalty was collected from him
by Checking Inspector and that he went to the office of the
coordinator only to report about what had happened when the
checking squad intercepted him when he was travelling in the
bus.                                                                F

     4. The disciplinary authority ordered for an enquiry to be
held by appointing an enquiry officer. The appellant fully
participated in the enquiry and the enquiry officer recorded a
finding that the charges levelled against the appellant were        G
proved. After issuing a second show cause notice along with
a copy of the findings, the order of dismissal came to be issued
against the appellant. The appellant raised an industrial dispute
which was adjudicated by the Labour Court wherein an award
came to be passed holding that the order of dismissal was fully     H
    832     SUPREME COURT REPORTS                   [2013] 9 S.C.R.

A justified and there was no scope to invoke Section 11A of the
  Industrial Disputes Act (hereinafter called 'the Act') to interfere
  with thes punishment imposed on the appellant. When the
  appellant preferred a writ petition challenging the said award
  of the Labour Court, Hubli on 20.12.2005 in KID 20/2003, the
B Learned Single Judge allowed the Writ Petition, set aside the
  award of the Labour Court, modified the order of dismissal by
  ordering withholding of two increments with cumulative effect
  without consequential benefits and without back wages but with
  continuity of service. There was a further direction to the
c  respondent Corporation to reinstate the appellant within four
  weeks from the date of the order of the Learned Single Judge.
  The Division Bench, however, set aside the order of the
   Learned Single Judge and upheld the order of dismissal.

       5. We heard Mr. Shankar Divate, learned counsel
D appearing for the appellant and Mr. B. Subramanya Prasad,
  learned counsel appearing for the respondent-Corporation. We
  have also perused the orders of the Labour Court, the Learned
  Single Judge as well as that of the Division Bench of the High
  Court. Having bestowed our serious consideration, we find that
E the act of the appellant in having travelled in the Corporation
  bus on 30.11.1995 without valid ticket was not in dispute. The
  Labour Court, while considering the issue raised before it as
  regards the validity of the enquiry, examined the procedure
  followed in the domestic enquiry and found that there was no
F flaw in the manner in which the enquiry was held against the
  appellant. We also do not find any flaw in the said conclusion
  of the Labour Court and that the enquiry held against the
  appellant was fair and proper. As regards the misconduct
  alleged against the appellant, apart from his conduct of
G travelling in the bus without a valid ticket, the further allegation
  was that on that day, namely, 30.11.1995 as well as on the
  subsequent date i.e. 01.12.1995, he threw a challenge towards
  the checking squad, and in particular, the concerned Inspector
  who demanded the ticket from him, namely, one Shri D.R.
H Hiremath, and also behaved in a rude manner towards other
  DAVALSAB HUSAINSAB MULLA v. NORTH WEST KARNATAKA 833
ROAD TRANS. CORP. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

officers in the Divisional Office. The rude behaviour of the         A
appellant was explained by those employees in the enquiry and
the Labour Court found that there was no defect in the enquiry
apart from the fact that the evidence placed before the enquiry
officer conclusively established the misconduct alleged against
the appellant as found proved by the enquiry officer. The Labour     B
Court also examined the scope of exercising its discretion
under Section 11A of the Act in order to interfere with the
punishment imposed on the appellant and stated in detail as
to how and why it was not in a position to exercise its discretion
in his favour.                                                       c
     6. In the light of the gravity of the misconduct found proved
against him as well as the past conduct wherein he was
involved in 27 other default cases, where on number of earlier
occasions also he misbehaved against superior officers and
refused to perform his duties, apart from disobeying the orders      D
of his superior, his involvement in a case of assault against
other employees, the Labour Court by making specific
reference to Exhibit M14 which contained the past record of
the appellant stated that he was involved in nefarious activities
and was highly indisciplined. When the said award of the             E
Labour Court was subject matter of challenge, the same came
to be interfered with by the Learned Single Judge by stating
that the Labour Court was not justified in not invoking its
discretionary power under Section 11A of the Act on the ground
of interest of Corporation and without considering the interest      F
of the appellant. Without assigning any reason, the Learned
Single Judge held that the punishment was disproportionate
and while setting aside the award of the Labour Court modified
the award by withholding of two increments with cumulative
effect and without back wages and consequential benefits. The        G
Division Bench, however, on finding no flaw in the order of the
Labour Court set aside the order of the Learned Single Judge
and restored the punishment of dismissal.

     7. Having considered the above factors, we are also
                                                                     H
    834      SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A   convinced that there were no good grounds to interfere with the
    impugned judgment of the Division Bench. Having regard to the
    act of misconduct found proved against the appellant in an
    enquiry held for that purpose by way of disciplinary procedure
    prescribed in the relevant rules, the conclusion of the Labour
B   Court on this aspect cannot be assailed. As far as the
    misconduct alleged against the appellant apart from his
    admission that he travelled on 30.11.1995 without a valid ticket,
    the evidence placed before the enquiry officer and the Labour.
    Court fully established his other conduct of misbehaviour
c   towards his superiors and other employees on 30.11.1995 as
    well as on 01.12.1995. Such misbehaviour was by way of
    abusing his superior officers for the simple reason that the
    checking squad questioned his conduct of travelling in the
    Corporation bus without a valid ticket. They were not mere
    abuses of simple nature. The exact wording used by the
0
    appellant which has been recorded by the trial Court in its
    award discloses that in the course of such abuse he also
    threatened Mr. Hiremath, the Checking Inspector by alleging
    that he will be done away with. Such a conduct of the appellant
    towards his superiors and other employees was rightly
E   condemned by the respondent-Corporation while proceeding
    against him by way of disciplinary action and by passing the
    order of dismissal. Apart from the conduct which took place on
    30.11.1995 and 01.12.1995 and for which he was proceeded
    against, the appellant's past record was also demonstrated to
F   be very bad. He was proceeded against on 27 occasions
    earlier also for his different acts of misconduct in which on one
    occasion he indulged in the conduct of threatening a co-
    employee. The cumulative effect of the above resulted in the
    Corporation passing the order of dismissal against the
G   appellant. Having regard to the above factors, the Labour Court
    rightly declined to exercise its discretionary jurisdiction under
    Section 11A of the Act to interfere with the punishment of
    dismissal imposed on the appellant.

H         8. As far as the discretionary power of the Labour Court
  DAVALSAB HUSAINSAB MULLA v. NORTH WEST KARNATAKA       835
ROAD TRANS. CORP. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

under Section 11 A of the Act is concerned, the exercise of such    A
power will always have to be made judicially and judiciously.
Under the said provision, wide powers have been vested with
the Labour Court to set aside the punishment of discharge or
dismissal and in its place award any lesser punishment.
Therefore, high amount of care and caution should be                B
exercised by the Labour Court while invoking the said
discretionary jurisdiction for replacing the punishment of
discharge or dismissal. Such exercise of discretion will have
to depend upon the facts and circumstances of each case.
Before exercising the said discretion, the Labour Court has to      c
necessarily reach a finding that the order of discharge or
dismissal was not justified. A reading of Section 11A of the Act
makes it clear that before reaching the said conclusion, the
Labour Court should express its satisfaction for holding so. It
has to be remembered that the question of exercise of the said      0
discretion will depend upon the conclusion as regards the proof
of misconduct as held proved by the management and only if
it finds that the discharge or dismissal was not justified.
Therefore, the satisfaction to be arrived at by the Labour Court
while exercising its discretionary jurisdiction under Section 11A
                                                                    E
of the Act must be based on sound reasoning and cannot be
arrived at in a casual fashion, inasmuch as, on the one hand
the interference with the capital punishment imposed on the
workman would deprive him and his family members of the
source of livelihood, while on the other hand the employer
having provided the opportunity of employment to the concerned      F
workman would be equally entitled to be ensured that the
employee concerned maintains utmost discipline in the
establishment and duly complies with the rules and regulations
applicable to the establishment. In that sense,tsince the
relationship as between both is reciprocal in equal proportion,     G
when the employer had chosen to exercise its power of
discharge and dismissal for stated reasons and proven
misconduct, the interference with such order of punishment
cannot be made in a casual manner or for any flimsy reasons.
                                                                    H
    836      SUPREME COURT REPORTS                   [2013] 9 S.C.R.

A      9. In this context, it will be appropriate for the Labour Court
  to assess the gravity and magnitude of the misconduct found
  proved against the employee concerned, the past conduct of
  the employee, the repercussion it will have in the event of
  interference with the order of discharge or dismissal in the day
B to day functioning of the establishment which will have far
  reaching effects on the other workmen and so on and so forth.
  It should always be remembered that any misplaced sympathy
  would cause more harm to the establishment which provides
  source of livelihood for many number of employees than any
c good for the employee concerned. It will be worthwhile to refer
  to the repercussions that would result in the event of any
  misplaced sympathy shown to an employee who indulges in
  certain acts of misconduct which has been lucidly explained in
  a decision of the Madras High Court reported as Royal Printing
  Works v. Industrial Tribunal and Another- 1959 (2) LLJ 619
0
  - wherein Hon. Balakrishna Ayyar, J. (as he then was) stated
  the position as under:

          "There are certain passages in the order of the tribunal
          which as I understand them suggest that carelessness on
E         the part of an employee in relation to his work would not
          justify serious punishment. With this view I definitely
          disagree. Carelessness can often be productive of more
          harm than deliberate wickedness or malevolence. I shall
          not refer to the classic example of the sentry who sleeps
F         at his post and allows the enemy to slip through. There are
          more familiar instances. A compositor who carelessly
          places a plus sign instead of a minus sign in a question
          paper may cause numerous examinees to fail. A
          compounder in a Hospital or chemists' shop who makes
G         up the mixtures or other medicines carelessly may cause
          quite a few deaths. The man at an airport who does not
          9C!refully filter the petrol poured into a plane may cause it
          to crash. The railway employee who does not set the point
          carefully may cause a head-on collision. Misplaced
H         sympathy can be of great evil. Carelessness and
  DAVALSAB HUSAINSAB MULLA v. NORTH WEST KARNATAKA       837
ROAD TRANS. CORP. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

    indifference to duty are not the high roads to individual.or   A
    national prosperity."

                                          (emphasis supplied)

     10. We feel it appropriate to add one more instance such
as the present one where an employee by violating the rules B
of the Corporation travelled without a valid ticket had the
audacity to question the authority of the checking squad and
posed a serious threat of taking away the life of the concerned
Checking Inspector. Not stopping with that he went to the office
of the higher official and created a ruckus in the office by C
throwing a challenge that he would indulge in a Satyagraha
apart from abusing the concerned Checking Inspector in the
presence of all other employees once again threatening to take
away his life by burning him. Such an extreme misbehaviour
towards the higher officials and fellow employees cannot be D
dealt with lightly and any sympathy shown to a person of such
mindset while working in an establishment will definitely cause
more harm than good for the establishment and all others
working therein. Therefore, in the case on hand, the conduct of
the employee towards the establishment as well as its fellow E
employees and higher authorities was highly condemnable and,
therefore, there was absolutely no scope for exercising the
discretionary power vested in the Labour Court under Section
11A of the Act. The Labour Court, therefore, rightly declined to
exercise the said jurisdiction vested in it in his favour. F
Unfortunately, the learned Judge by merely stating that the
Labour Court had only considered the interest of the
Corporation and not the interest of the ernployee set aside the
said award which was correctly rectified by the Division Bench.
The Division Bench was, therefore, well in order in having set G
aside the order of the Learned Single Judge and restoring the
order of dismissal passed against the appellant. We too,
therefore, do not find any scope to interfere with the order
impugned in this appeal.

    11. Learned counsel for the appellant made a fervent           H
    838       SUPREME COURT REPORTS                [2013) 9 S.C.R.


A prayer that the appellant had rendered service of more than 23
  years and that such service should not go without any terminal
  benefits inasmuch as he has got a family to support and,
  therefore, a lenient view should be taken. Having regard to the
  gravity of the misconduct found proved against the appellant
s and his past record of service, we have no sympathy for the
  appellant. However, on instructions, the respondent has filed an
  affidavit sworn to by the Deputy Chief Law Officer of the
  respondent Corporation to a specific query posed to the
  Corporation as to whether the appellant would be entitled to
c claim pension on the basis of the prevalent Rules/ Scheme for
  payment of pension even if the dismissal of an employee from
  service is sustained. The said affidavit is dated 2nd May, 2013.
  The Deputy Chief Law Officer has referred to para 12(8) of the
  Employees' Pension Scheme, 1995 formulated under Section
D 6A of the Employees' Provident Fund and Miscellaneous
  Provisions Act, 1952 (Act 19 of 1952) which specifically states
  that if a member ceases to be in employment by way of
  RETIREMENT OR OTHERWISE earlier than the date of
  superannuation from which pension can be drawn, the member
E may on his option either be paid pension as admissible under
  that Scheme on attaining the age exceeding 50 years or he
  may be issued a Scheme certificate by the Commissioner
  indicating the pension of his service, the pensionable salary
  and the amount of pension due on the date of exit from the
  employment.
F
        12. Paragraph 4 of the said affidavit of the Deputy Chief
    Law Officer reads as under:

          "4. In view of Para 12(8) of the Scheme, if a member
          ceased to be in employment by way of retirement or
G
          otherwise, he is eligible for pension as admissible in law
          to the extent of contribution made by the employer. It is
          submitted that as the word used in Para 12(8) of the
          Scheme as regards eligibility is "by way of retirement or
          otherwise". As the word used under Para 12(8) of the
H
  DAVALSAB HUSAINSAB MULLA v. NORTH WEST KARNATAKA       839
ROAD TRANS. CORP. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

       Scheme is "otherwise" and as there is no specific             A
       provision under the Scheme as regards the employees
       who are dismissed from service, it can be included the
       dismissed employees also if he has put pensionable
       service. Hence this affidavit."
                                                                     B
     13. In the light of the provisions prevailing under
Employees' Pension Scheme, 1995 governed by the provisions
of Act, 19 of 1952, we only wish to state that it is open to the
appellant or his dependants (if any) to approach the concerned
authorities for settlement of any benefits payable under the         C
provisions of Act 19 of 1952, as well as under the Employees'
Pension Scheme, 1995. In the event any such application is
made by the appellant or by any of his dependants or nominee,
the authorities of the respondent Corporation, as well as the
authorities constituted under the provisions of Act 19 of 1952
shall consider the same in accordance with the provisions of         D
the said Act and the Scheme and pass appropriate orders
expeditiously, preferably within one month from the date of filing
of such application. The appeal, however, fails and the same
is dismissed.
                                                                     E
R.P.                                         Appeal dismissed.