Oral Judgment:

1. Heard Mr Shivraj Gaonkar, who appears with Ms S. Veluskar, learned counsel for the petitioner, and Mr Arunkumar Nigalye, learned counsel for respondent No.1.

2. The challenge in this petition is to the Part I and Part II awards dated 08.10.2008 and 12.11.2010, holding that the inquiry against the petitioner workman was fair and proper and that the punishment of dismissal imposed upon the workman was not disproportionate.

3. The learned counsel for the parties submitted that about five years ago, settlement talks were held during which the employer, a Federation of Cooperative Societies, offered to pay the petitioner's legal representatives Rs. 15,000/-, strictly without prejudice to rights and contentions. However, at that time, the legal representatives did not accept this amount.

4. Mr Gaonkar submitted that, in terms of the standing orders/service conditions applicable to the petitioner, the petitioner was entitled to seek outside professional help during the domestic inquiry. This request was unreasonably denied, constituting a gross violation of the principles of natural justice and fair play. He submitted that the standing orders/service conditions were in Marathi. The petitioner also clarified that he is illiterate and does not understand English. Still, inquiry proceedings were conducted in English, thereby compounding prejudice to the petitioner in the matter of his defence. Mr Gaonkar submitted that on these two grounds, the domestic inquiry could not have been regarded as fair and proper. He urged that the Part 1 award be interfered with on these grounds.

5. Mr Gaonkar submitted that the only allegation against the petitioner was that after completing the loading of cashew nuts on the truck at about 8.00 p.m., the petitioner demanded a tip (Mamuli) from the truck driver. Other allegation was that because this tip was refused, the petitioner abused the truck driver, Society official and even tried to obstruct their movement by placing his cycle before the truck which he had just loaded. Mr Gaonkar submitted that even this charge has been already proved considering the blemishless service of 17 years, the penalty of dismissal from service was shockingly disproportionate.

6. Mr Gaonkar submitted that the Tribunal in its Part II award has misread the charge and introduced the concept of the petitioner being a 'habitual offender'. He pointed out that this was neither charged nor was there any evidence to this effect. Besides, the Tribunal has relied on the plea of loss of confidence, when in fact such a plea was neither pleaded nor proved by the respondent-employer. He relied on Kanhaiyalal Agrawal and others Vs Factory Manager, Gwalior Sugar Company Ltd((2001) 9 SCC 609). to submit that there are indeed pleadings and proving a plea based on loss of confidence.

7. Mr Gaonkar finally pointed out that the workman expired on 08.11.2009, which is before the Part II award could be made. His widow is now pursuing the matter. He submitted that even this aspect has not been considered by the Tribunal.

8. Mr Gaonkar relied on Ved Prakash Gupta Vs M/s Delton Cable India (P) Ltd.,((1984) 2 SCC 569), Rama Kant Misra Vs State of Uttar Pradesh and others((1982) 3 SCC 346) and Ram Kishan Vs Union of India and others((1995) 6 SCC 157) to support his arguments on disproportionality and manner of exercise of discretion under Section 11(a) of the Industrial Disputes Act, 1947 (the said Act).

9. For all the above reasons, Mr Gaonkar submitted that the impugned awards be set aside and that full back wages and consequential benefits be awarded to the widow, who is now pursuing this petition.

10. Mr Nigalye, learned counsel for the respondent-employer, defended the impugned awards on the grounds reflected therein. He submitted that the workman was given a full opportunity to be represented by a co-worker, which opportunity was not availed. He submitted that discretion not to allow an Advocate or professional was exercised based on cogent reasons, and the Tribunal's acceptance of such reasons suffers from no perversity whatsoever. Mr Nigalye submitted that there is clear evidence on record that the inquiry officer explained the proceedings to the workman in Konkani language with which the workman was familiar. Mr Nigalye submitted that, except for a formal letter, there was no serious protest about any prejudice or handicap. He submitted that Part I award has considered all aspects of fairness in great detail and there are neither any jurisdictional errors nor any perversity involved.

11. Mr Nigalye submitted that the charges of demanding a bribe and of abusing, threatening, or physically obstructing the driver and the employer official because the bribe was refused are serious. He submitted that the penalty of dismissal was entirely proportionate and warranted no interference.

12. Mr Nigalye referred to Paras 10 and 11 of the Tribunal's Part Il award and therefore, submitted that the discretion under Section 11(a) has been validly exercised. He submitted that the petitioner made out no case to warrant interference with either or both awards.

13. The rival contentions now fall for determination.

14. The charge sheet in this case was issued to the workman in Marathi. However, the English translation has been placed on record on pages 58-60. The charge against the workman was that he was appointed as a "Mapari" (weigh man). When he was working at Canacona yard, he was assigned the duties of loading and unloading agricultural products from a truck, in addition to other duties, as instructed by his senior from time to time. On 26.04.2001, the workman was instructed to prepare the bags duly filled with cashew nuts and load them on the truck. The workman completed the assigned duty by 8.00 p.m. After completing such duties, the workman demanded "Mamuli" from the truck driver. This is styled as a 'tip' by Mr Gaonkar, learned counsel for the petitioner and as a 'bribe' by Mr Nigalye, learned counsel for the respondent. After the truck driver refused to pay the Mamuli, the workman obstructed the truck's movement by placing his cycle in front of it. Threats and the use of abusive language against the driver accompanied all this. The charge sheet alleges that the workman was "heavily drunk at that time".

15. The charge sheet further alleges that the workman obstructed the Assistant Branch Manager, Tukaram L. Gaude, while the latter was going home. The workman, along with his co-worker, abused the Assistant Branch Manager by using bad words and questioned him as to why he does not want "Mamuli". It is alleged that the workman, on being told by the Assistant Branch Manager that he does not want Mamuli, lifted his cycle to hammer the Assistant Branch Manager and abused the Assistant Branch Manager, involving the names of his parents. There is also an allegation that the workman refused his work and argued with senior staff members.

16. Based upon the above allegations, the workman was charge sheeted with the following charges:-

                   (1) Behaving against good conduct with discipline manner given staff rules and regulation of the society.

                   (2) Demanding Mamuli within the premises of the Society.

                   (3) Arrogant behaviour with co staff members and seniors due to which damage will receive to discipline of the society.

                   (4) Attempting to attack and threaten senior staff and co-workers.

                   (5) Damaging the reputation and interest of the society.

                   (6) Attending duty with consuming the liquor.

17. The arguments in relation to the fairness of the inquiry have been dealt with in great detail in Part I of the award. There is no good reason made out to disagree with the reasoning or finding recorded therein. Although the service rules were in Marathi, there is evidence that the Inquiry Officer explained the inquiry proceedings at all crucial stages to the workman. Therefore, there was no handicap or prejudice. A bare or formal letter of complaint does not spell out any prejudice. Accordingly, the inquiry cannot be held unfair or improper on the ground that the proceedings were conducted unfairly.

18. As regards representation, the service rules do not address the workman's right to be represented by an Advocate or an outside professional. However, discretion is vested in the Inquiry Officer to permit representation by an outside professional, a union worker, or a co-worker. In this case, after considering the charges levelled, the workman was allowed to be represented by a co-worker. The fact that the workman could not arrange for a co-worker to defend him does not, in itself, amount to unfairness or a violation of natural justice in the present case. Again, this aspect has been dealt with in great detail in Part I of the award, and no case has been made out to take a different view in this matter. This is not a case of any perversity or failure to consider critical evidence on the issue.

19. Therefore, the arguments assailing the Part I award cannot be accepted in the facts and circumstances of this case and the evidence on record. Even the reasoning in Part I award suffers from a perversity or error of approach. No case for judicial review of the Part I award is therefore made out.

20. Now coming to Part II award, Mr Nigalye, learned counsel for the employer, is right that the charges against the workman are not as trivial as sought to be made out. The charges are indeed serious. The fact that the charges are serious is a vital consideration in assessing the plea of disproportionality.

21. However, in this case, Mr Gaonkar is justified in contending that at least the charge sheet did not make any reference to the workman being habituated to demanding bribes, abusing or threatening the truck drivers or Society officials. The Part II award, however, mistakenly holds that the workman was a habitual offender involved in such charges. One of the incidents, even though quite serious, is a workman being habituated to demanding tips or bribes and further threatening or obstructing those who refuse such tips or bribes, which is quite another. This is relevant to the proportionality of the penalty.

22. The Tribunal also did not notice that the charge of the workman being "heavily drunk at that time" at the time of the incident of 26.04.2001 was held as not proved by the Inquiry Officer. The Inquiry Officer also held that the charge of a workman refusing to work or arguing with senior staff members "every evening when customers come" was also held as not proved by the Inquiry Officer. Thus, the charges of drunkenness, habitually refusing to work, or arguing with senior staff members were specifically found not proved by the Inquiry Officer. Again, this was a relevant aspect that warranted consideration in the context of the disproportionality of penalty.

23. Mr Gaonkar's argument of loss of confidence need not detain the outcome, though it is true that loss of confidence was not pleaded by the employer, as is required in terms of law laid down in Kanhaiyalal Agrawal (supra). The Tribunal's observations in the Part II award have to be considered in their proper perspective. The Tribunal has held that, even if the allegation concerns only one charge, there is no bar to one of the allegations being responsible for the loss of confidence. The observations were in the context of the penalty not being shockingly disproportionate, which is really standard, as weighed by the Hon'ble Supreme Court.

24. In matters of proportionality, the role of the Courts is not too broad or unfettered and unlimited. Interference with the exercise of managerial discretion is justified only in certain circumstances, including when the punishment is shockingly disproportionate, there are mitigating circumstances, or there is evidence of past misconduct.

25. In this case, the proven incident is indeed serious. Still, in sustaining the penalty, there is a reference to the workman being a "habitual offender," when in fact neither was this an allegation nor was there any proof in this regard. Similarly, past conduct has either not been considered or has been mistakenly considered adverse to the workman. The aspect that the workman has expired and, ultimately, the ill effects of his dismissal have fallen on his widow is also not adequately considered. No credence is given to the workman's past service of almost 17 years, which will have to be regarded as blemishless because of the absence of any allegation of his being a habitual offender or proof of any penalty imposed upon him in the past.

26. In Ved Prakash Gupta (supra), the allegation against the security inspector was that he used abusive language and uttered bad words against his superiors on a single occasion. So also in Rama Kant Misra (supra), the allegation was the use of indiscreet, improper language or disclosing a threatening posture. The Hon'ble Supreme Court held that these are all subjective matters because the voice modulation of each person in society differs. Indiscreet, improper, and abusive language may show a lack of culture. Still, the mere use of such language on one occasion, unconnected with any subsequent positive action and not preceded by any blameworthy conduct, cannot justify an extreme penalty of dismissal from service.

27. To the same effect are the observations at Paras 11 and 12 of Ram kishan (supra), which read thus:-

                   11.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 the 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.

                   12.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. We hold that imposition of stoppage of two increments with cumulative effect would be an appropriate punishment. So, we direct the disciplinary authority to impose that punishment. However, since the appellant himself is responsible for the initiation of the proceedings, we find that he is not entitled to back wages; but, all other consequential benefits would be available to him."

28. In this case, it could be argued that the workman took some overt action by obstructing the truck's movement or by adopting a threatening posture towards the Society officials. However, the evidence on record clearly speaks of one instance. Although this instance is quite serious, the issue of proportionality will have to be considered from other perspectives that have not engaged the Tribunal's attention in the Part II award.

29. This was certainly not a case of reinstating the workman, even if he had been alive. To that extent, the penalty cannot be regarded as shockingly proportionate. However, though this was a case where the reinstatement could have been refused, at least some compensation could have been granted to the workman and now, to his widow. As it is, the penalty of dismissal could have made it difficult for the workman to secure alternative employment. The record shows that the workman was employed for almost 17 years, and there was nothing to indicate that he was habituated to demanding tips or bribes, or to abusing or threatening truck drivers and Society officials. A singular incident on a particular date has to be considered with some sensitivity. The incident may be serious and preventable. However, the response has to be measured. Ultimately, the fact that every saint has a past and every sinner has a future cannot be completely ignored. Compassion does not mean condoning a default. But compassion is the display of sensitivity and understanding toward human failings.

30. Upon consideration of the matter from this perspective, the impugned Part II award is partly interfered with by issuing a direction to the employer to pay the petitioner's widow an amount of Rs. 1,00,000/- within two months from today. This amount may be paid directly to the petitioner or deposited with this Court after giving due intimation to the petitioner. Upon deposit, the petitioner shall be entitled to withdraw this amount unconditionally.

31. Rule is disposed of in the above terms without any orders for Costs.

32. All concerned are to act on an authenticated copy of this order.