Maintenance of Discipline at Workplace

Maintaining discipline in the workplace is the duty and right of the employer. He draws up the rules on the workplace conduct and makes sure that discipline is maintained.

An employee who deliberately breaches a rule of workplace discipline is guilty of misconduct. If this is serious enough, it may lead the employer to terminate the employment relationship between the parties; the employer dismisses the employee.

At common law, the reason for the dismissal was totally irrelevant: the common law merely required compliance with the contract provisions-for example, provisions about the length of the notice period on termination of employment.

Using the concept of an unfair labour practice, however, the industrial court has set its own requirements, different from those of the common law.

Discipline at the work place in an organization, is the sine qua non for the efficient working of the organization. When an employee breaches such discipline and the employer terminates his services, it is not open to a Labour Court or an Industrial Tribunal to take the view that the punishment awarded is shockingly disproportionate to the charge proved. To quote Jack Chan, “discipline is a form of civilly responsible behavior which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large.” Obviously this idea is more relevant in considering the working of an organization like the employer or an industrial undertaking. Obedience to authority in a workplace is not slavery. It is not violative of one’s natural rights. It is essential for the prosperity of the organization as well as that of its employees. When in such a situation, a punishment of termination is awarded for hitting and injuring a superior officer supervising the work of the employee, with no extenuating circumstance established, it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate.

These questions recently came up for consideration in Hombe Gowda Edn. Trust and Anr. v. State of Karnataka and Ors. 2005 (10) SCALE 307, upon considering a large number of cases, this Court held:

Indiscipline in an educational institution should not be tolerated. Only because the Principal of the Institution had not been proceeded against, the same by itself cannot be a ground for not exercising the discretionary jurisdiction by us. It may or may not be that the Management was selectively vindictive but no Management can ignore a serious lapse on the part of a teacher whose conduct should be an example to the pupils.

This Court has come a long way from its earlier view points. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach of the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed that how discipline at the workplaces/industrial undertaking received a set back. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution of India, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor. The Tribunal being inferior to that of this Court was bound to follow the decisions of this Court which are applicable to the fact of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same.

the expression ‘misconduct’ has not been defined in the industrial Dispute Act, 1947 or in the Industrial Employment (Standing Orders) Act, 1946. In State of Punjab v. Ram Singh [1] , after noticing the etymological definition of the expression ‘misconduct’ , K Ramaswamy J observed:

“Though this expression is not capable of precise definition, its reflection receives its cannotation from the context, the delinquency in its performance and its effect on the discipline and the nature of duty. It may involve moral turpitude, it must be improper and wrong behavior; unlawful behavior, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgement, carelessness or negligence in performance of duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve.”

Generally speaking, misconduct is a transgression of some established and definite rule of action where no discretion is left except what necessity may demand; it is violation of definite law, a forbidden act. [2]

In workmen of Shalimar Rope Works Ltd. v. Shalimar Rope Works Ltd. the labour appellate tribunal laid down the following criterion for determining as to whether the act would be an act of misconduct, viz, the act

Is inconsistent with the fulfillment of the express or implied conditions of service or ,

Is directly linked with the general relationship of employer and employee or,

Has a material bearing on the smooth and efficient working of the concern. If the answer of these criterion is in affirmative, the act in question would amount to an act of misconduct.

Under the Industrial Employment (Standing Orders) Central Rules, 1946 framed under the Industrial Employment (Standing Orders) Act, 1946, the central government has prescribed the model standing orders in schedule 1, Clause 14(3) of which provides that the following acts and omissions shall be treated as misconduct.

14(3) The Following acts and omissions shall be treated as misconduct:

Willful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior.

Theft, fraud or dishonesty in connection with the employer’s business or property;

Willful damage to or loss of employer’s goods or property;

Taking or giving bribes or any illegal gratification;

Habitual absence without leave, or absence without leave for more than 10 days;

Habitual late attendance;

Habitual breach of any law applicable to the establishment;

Riotous or disorderly behavior during working hours at the establishment or any act subversive of discipline;

Habitual negligence or neglect of work;

Frequent repetition or any act or omission for which a fine may be imposed to a maximum of two percent of the wages in a month; or

Striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law.

From the language of the Model Standing Order it is clear that it neither defines misconduct nor illustrate it exhaustively. These are only illustrative and there can be many more acts which can constitute misconduct. [3]

Some illustrations of What Constitutes Breach of Discipline:

Misconduct Relating to Duty

Non observance of Duty

Non performance of Work

Negligence of Duty

Engaging in work similar to that of Employer

Absence without leave

Late attendance

Strikes

Go-Slow

Gherao

Misconduct Relating to Discipline

Acts of substantive Discipline

Insubordination or Disobedience

Riotous and disorderly behavior

Damage to property and reputation

Misconduct relating to Morality

Theft,

Dishonesty and Fraud

Disloyalty

Corruption

Moral Turpitude

Inflicting of a grave injury on a superior officer

(Madhya Pradesh Electricity Board Vs. Jagdish Chandra Sharma, AIR 2005 SC 1924)

In Muriadih Colliery v. Bihar Colliery Kamgar Union MANU/SC/0131/2005 : (2005) 3 SCC 331, this Court, inter alia, following Mahindra and Mahindra (supra) held:

It is well-established principle in law that in a given circumstance it is open to the Industrial Tribunal acting under Section 11A of the Industrial Disputes Act, 1947 has the jurisdiction to interfere with the punishment awarded in the domestic inquiry for good and valid reasons. If the Tribunal decides to interfere with such punishment it should bear in mind the principle of proportionality between the gravity of the offence and the stringency of the punishment. In the instant case it is the finding of the Tribunal which is not disturbed by the writ courts that the two workmen involved in this appeal along with the others formed themselves into an unlawful assembly, armed with deadly weapons, went to the office of the General Manager and assaulted him and his colleagues causing them injuries. The injuries suffered by the General Manager were caused by lathi on the head. The fact that the victim did not die is not a mitigating circumstance to reduce the sentence of dismissal.

Use of Abusive language

It may also be noticed that in Orissa Cement Ltd. v. V. Adikanda Sahu 1960 (1) LLJ 518 SC and in New Shorrock Mills v. Maheshbhai T. Rao MANU/SC/0069/1997 : (1997)ILLJ1212SC, this Court held that use of abusive language against a superior, justified punishment of dismissal. This Court stated “punishment of dismissal for using abusive language cannot be held to be disproportionate”.

New Shorrock Mills Vs. Maheshbhai T. Rao [4]

The respondent was engaged as a Badli workman. He entered the office of the Deputy Manager and started abusing him and threatened that the mill officers will not be safe outside the mill and that he did not care if he had to go to jail for murder of four to five officers.

In view of the aforesaid abusive behavior of the respondent a show cause notice under Clause 22 [1] of the Standing Orders was served on him.

Thereafter, a domestic inquiry was held, witnesses were examined and full opportunity was given to the respondent to defend himself. After the inquiry proceedings concluded the respondent was served with a notice by the Inquiry Officer to show cause why he should not be discharged from the service of the mill. The Inquiry Officer, after considering the entire material on record and also after taking into account the explanation offered by the workman, came to the conclusion that the respondent was in fact guilty of misconduct. By order the respondent was discharged from the service as Badli worker with immediate effect.

The respondent then moved the Labour Court under Section 79 of the Bombay Industrial Relations Act, 1946, which held that:

“Looking to the facts of this case and the facts of the evidence of the witnesses produced in this case, on the basis of the departmental inquiry against the applicant, the allegations leveled against the applicant are proved. But as discussed hereinabove having regard to the decisions, the punishment of discharging the applicant from the service imposed by the opponent mills company is excessive and harsh and it leads the applicant to economic destruction. On account of this the family members of the applicant may also have to suffer. The punishment of discharging from service may only be imposed when there is no alternative except to discharge the applicant. The hon’ble High Court and the Hon’ble Supreme Court have in many cases adopted the course that in cases of such a nature, harsh punishment of dismissal of the applicant should not be imposed. The applicant of this matter also on the basis of the decisions stated hereinabove, the applicant is entitled to be reinstated in the opponent mill company in his original post with continuity of service.”

The Gujarat High Court upheld the judgement of the Labour Court dismissing the appeal in limine by observing that the impugned judgment was just and proper and did not require to be interfered with under Articles 226 and 227 of the Constitution.

But on further appeal the Supreme Court held:

“The Labour Court, in the present case, having come to the conclusion that the finding of the departmental inquiry was legal and proper, respondent’s order of discharge was not by way of victimisation and that the respondent workman had seriously misbehaved and was thus guilty of misconduct, ought not to have interfered with the punishment which was awarded, in the manner it did. This is not a case where the court could come to the conclusion that the punishment which was awarded was shockingly disproportionate to the employee’s conduct and his past record. The Labour Court completely overlooked the fact that ever prior to the incident in question the respondent had misconducted himself on several occasions and had been punished. According to the appellant there were atleast three other instances where the respondent had misconducted himself and that he had failed to improve his conduct despite his assurances from time to time. Another aspect which was overlooked by the Labour Court was that on the finding of the Inquiry Officer that the respondent had misbehaved with his superior officer and was guilty of misconduct, the appellant could have dismissed the respondent from service. The appellant chose not to do so. Instead it passed an order of discharging the respondent from service. Lesser punishment having been given by the management itself there was, in our opinion, no justifiable reason for the Labour Court to have set aside the punishment so awarded. We are unable to accept that the punishment imposed by the management was in any way disproportionate to warrant interference by the Labour Court. The direction of the Labour Court ordering reinstatement of the respondent with forty per cent back wages was clearly unwarranted.”

And thus it set aside the order of reinstatement.

In Mahindra and Mahindra Ltd. v. N.N. Narawade etc. MANU/SC/0138/2005 : JT 2005 (2) SC 583 : (2005) 3 SCC 134 is a case wherein the misconduct against the delinquent was ‘verbal abuse’. This Court held:

It is no doubt true that after introduction of Section 11A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman 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 which can be exercised under Section 11A 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 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 11Aof the Act and reduce the punishment. As noticed hereinabove at least in two of the cases 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 by the workman is such that it cannot be tolerated by any civilised 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.

Unauthorisedly absence

North Eastern Karnataka R.T. Corpn. Vs. Ashappa [5]

The Respondent was working as a conductor. He remained unauthorisedly absent for about two years. His leave records were seen and it was found that he had repeatedly remained unauthorisedly absent. On the aforementioned charges, a departmental proceeding was initiated against him. He was found guilty of commission of the said misconduct and was directed to be dismissed from service. He raised an industrial dispute in relation to the said order of dismissal from service culminating in a reference being made by the Government of Karnataka to Labour Court, Gulbarga for resolution of the said dispute. A preliminary issue was raised before the Labour Court and by a judgment and order dated 30.04.1996, it was found that the disciplinary proceedings held as against the Respondent was not fair and legal. The parties thereafter adduced their respective evidence before the Labour Court. By an award dated 28.06.1996, it was held that the Respondent remained absent from 27.11.1990 to 02.12.1993 and, thus, committed a misconduct. It was, however, opined:

“In a normal course the reasonable punishment would be to disallow the back wages and continuity of service from the date of dismissal to till the date of reinstatement. But in this case the D.E. has been set aside and the claimant has been granted interim relief. If the back wages and continuity of service are disallowed from the date of dismissal to the date of reinstatement the punishment would be somewhat unreasonable one. I am of the opinion that it is a fit case to disallow the back wages and continuity of service from the date of dismissal, i.e., 6-8-94 till the date of granting the interim relief, i.e., 29.1.95 as a lesser punishment.

4. It was, however, directed:

The Respondent is directed to reinstate the claimant I-Party to his original post. The claimant I-Party is entitled for back wages at the rate of 75% of the wages what he was getting at the time of dismissal or 75% of the wages in the current rate whichever is more from the date of granting the interim relief 30.1.95. The claimant is deemed to have been continued in service from the said date.

It is hereby ordered that the claimant I-Party is not entitled for back wages and continuity of service from the date of dismissal i.e., 6.8.94 to till the date of granting the interim relief i.e., 29.1.95 as a lesser punishment. I direct both the parties to bear their respective costs.

5. A writ petition was filed there against by the Appellant which was dismissed by a learned Single Judge of the High Court holding:

When a worker has remained unauthorisedly absent for such a long duration in the normal circumstances, Labour Court was not justified in interfering with the order of punishment imposed by the management but in the facts of the case, the workman was awarded some interim relief in the year 1995 and by an interim order of this Court in the year 1999 he has been reinstated and has been working.

Taking these factors into consideration and having regard to the long absence of the workman, it is a fit case that he should be denied the payment of backwages from the date of dismissal till the date of reinstatement.

As noticed hereinbefore, the writ appeal filed by the Appellant has been dismissed.

6. The learned Counsel appearing on behalf of the Appellant would submit that the Labour Court as also the High Court committed a serious error in arriving at a finding that absenting oneself from duty for such a long time can be treated to be a minor misconduct and remaining absent from duty for 129 days should not have been treated leniently and as such, the impugned judgment cannot be sustained. He also pointed out that the finding of the Labour Court in paragraph 19 of its award was that the absence was from 27.11.1990 to 2.12.1993, a period of three years and five days. The charges against the Respondent were proved. Even the Labour Court, before whom the parties adduced evidences, found that the Respondent was absent for over three years. The Labour Court, however, proceeded on the basis that over-staying on leave or absence from duty partook to the nature of a minor offence.

7. Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct. The Appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The Respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the Respondent herein has to be treated lightly.

In Delhi Transport Corporation v. Sardar Singh MANU/SC/0619/2004 : (2004)IIILLJ543SC , this Court opined:

Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorised. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of para 4 of the Standing Orders shows the seriousness attached to habitual absence. In Clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorised.

Yet recently in State of U.P. v. Sheo Shanker Lal Srivastava and Ors. MANU/SC/8066/2006 : (2006)IILLJ219SC , it was opined that the Industrial Courts or the High Courts would not normally interfere with the quantum of punishment imposed upon by the Respondent stating:

“It is now well-settled that principles of law that the High Court or the Tribunal in exercise of its power of judicial review would not normally interfere with the quantum of punishment. Doctrine of proportionality can be invoked only under certain situations. It is now well-settled that the High Court shall be very slow in interfering with the quantum of punishment, unless it is found to be shocking to one’s conscience.”

The said principle of law has been reiterated in A. Sudharkar v. Post Master General, Hyderabad and Anr. MANU/SC/1628/2006 stating:

“Contention of Dr. Pillai relating to quantum of punishment cannot be accepted, having regard to the fact that temporary defalcation of any amount itself was sufficient for the disciplinary authority to impose the punishment of compulsory retirement upon the Appellant and in that view of the matter, the question that the third charge had been partially proved takes a back seat.”

In Hombe Gowda Educational Trust and Anr. v. State of Karnataka and Ors. MANU/SC/2522/2005 : (2006)ILLJ1004SC , this Bench opined:

“The Tribunal’s jurisdiction is akin to one under Section 11A of the Industrial Disputes Act. While exercising such discretionary jurisdiction, no doubt it is open to the Tribunal to substitute one punishment by another; but it is also trite that the Tribunal exercises a limited jurisdiction in this behalf. The jurisdiction to interfere with the quantum of punishment could be exercised only when, inter alia, it is found to be grossly disproportionate.”

This Court repeatedly has laid down the law that such interference at the hands of the Tribunal should be inter alia on arriving at a finding that no reasonable person could inflict such punishment The Tribunal may furthermore exercises its jurisdiction when relevant facts are not taken into consideration by the Management which would have direct bearing on the question of quantum of punishment.

Assaulting a superior at a workplace amounts to an act of gross indiscipline. The Respondent is a teacher. Even under grave provocation a teacher is not expected to abuse the head of the institution in a filthy language and assault him with a chappal. Punishment of dismissal from services, therefore, cannot be said to be wholly disproportionate so as shock one’s conscience.

A person, when dismissed from services, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matters, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforementioned principles in view, we may hereinafter notice a few recent decisions of this Court.

In State of Rajasthan and Anr. v. Mohd. Ayub Naz MANU/SC/0263/2006 : (2006)ILLJ742SC , this Court held:

For the foregoing reasons, we are of the opinion that a government servant who has willfully been absent for a period of about 3 years and which fact is not disputed even by the learned Single Judge of the High Court, has no right to receive the monetary/ retrial benefits during the period in question. The High Court has given all retrial benefits which shall mean that a lump sum money of lakhs of rupees shall have to be given to the respondent. In our opinion, considering the totality of the circumstances, and the admission made by the respondent himself that he was willfully absent for 3 years, the punishment of removal imposed on him is absolutely correct and not disproportionate as alleged by the respondent….

Misappropriating of Money

Karnataka State Road Transport Corporation vs. B.S. Hullikatti [6]

In the instant case, the respondent was a Bus Conductor working with the appellant-Corporation. A domestic inquiry was held in which it was alleged that he had collected at a particular trip of the bus Rs.2.25 from each of the 35 passengers but had issued tickets of the denomination of Rs.1.75 only.

As a result of the domestic inquiry, the respondent was dismissed from service. Reference was made to the Labour Court which came to the conclusion that the domestic inquiry was not fair or proper. Opportunity was given to the appellant to produce evidence which it did.

After recording the evidence, the Labour Court by the impugned award came to the conclusion that the allegation that the Conductor had issued tickets of Rs.1.75 instead of Rs.2.25 was proved but it had not been proved that he had collected the amount of Rs.2.25 from the passengers. The Labour Court set aside the punishment of dismissal and directed reinstatement with full back wages. On a writ petition being filed by the appellant-Corporation, the Single Judge dismissed the same after noting that the Labour Court had awarded 50 per cent of the back wages with reinstatement. Realising that this was a mistake, the Single Judge rectified the same and ordered reinstatement with full back wages. The letters patent appeal was dismissed.

On appeal to the Supreme Court it held that:

“On the facts as found by the Labour Court and the High Court, it is evident that there was a short-charging of the fare by the respondent from as many as 35 passengers. We are informed that the respondent had been in service as a Conductor for nearly 22 years. It is difficult to believe that he did not know what was the correct fare which was to be charged. Furthermore, the appellant had during the disciplinary proceedings taken into account the fact that the respondent had been found guilty for as many as 36 times on different dates. Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket less from as many as 35 passengers could only be to get financial benefit by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant-Corporation.”

It is misplaced sympathy by the Labour Courts in such cases when on checking it is found that the Bus Conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the Bus Conductors to collect the correct fare from the passengers and deposit the same with the Company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare.

Thus the Supreme Court held that:

“In our opinion, the order of dismissal should not have been set aside, but we are informed that in the meantime the respondent has already superannuated. We, therefore, on the special facts of this case, do not set aside the order of reinstatement, but direct that the respondent would not be entitled to any back wages at all but he would be entitled to the retiral benefits.”

Scope of Interference under 11A

In U.P. State Road Transport Corporation v. Subhash Chandra Sharma and Ors.MANU/SC/0188/2000 : (2000)ILLJ1117SC, this Court, after referring to the scope of interference with punishment under Section 11A of the Industrial Disputes Act, held that the Labour 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 interfere with punishment was not to be exercised capriciously and arbitrarily. It was necessary, in a case where the Labour Court finds the charge proved, for a conclusion to be arrived 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 and Anr. MANU/SC/0743/2004 : (2004) III LLJ 772 SC, this Court after referring to the decision in State of Rajasthan v. B.K. MeenaMANU/SC/0008/1997 : (1997) ILLJ 746 SC, also pointed out the difference between the approaches to be made in a criminal proceeding and a disciplinary proceeding. This Court also pointed out that when charges proved were grave, vis-a-vis the establishment, interference with punishment of dismissal could not be justified.

In Bharat Forge Company Ltd. v.Uttam Manohar Nakate, MANU/SC/0043/2005 : (2005)ILLJ738SC, this Court again reiterated that the jurisdiction to interfere 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. 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 labour