Case: Saudi Arabian Airlines Vs. Salim Gandhi & Others

ORAL JUDGMENTTipnis, J.After full arguments on behalf of both sides for a considerable period, we indicated that we are inclined to allow the writ petition no.171 of 1995 filed by the Saudi Arabian Airlines. However, with a view to mitigate the hardship to the respondent Salim Gandhi, we suggested a settlement. The parties agreed to settle the matter. As a matter of fact in the open court terms were agreed between the learned counsel as well as the parties. Salim Gandhi the employee concerned was personally present in court. The Saudi Arabian Airlines had agreed to pay an amount of Rs. 1 lac to said Salim Gandhi by way of full and final settlement. The said amount was enhanced to Rs.1,25,000 at the suggestion of the court. In fact consent terms were drawn and were shown and they were to be signed and submitted to the court at 11 Oclock on Friday 21st June, 1996. On Friday Shri Ganguli, learned counsel for the said employee Salim Gandhi, stated that unfortunately after leaving the court his client said Shri Salim Gandhi met with an accident and was admitted in the hospital and therefore his signature could not be obtained on the consent terms. Shri Ganguli requested that the matter be adjourned till this day to enable him to obtain signature of his client. The matter was accordingly placed on board for settlement today.2.Today when the matter is called out Shri Ganguli informed that his client Shri Salim Gandhi, who is still reported to be in the hospital is not agreeable to sign the consent terms, as according to him the amount is too meagre. Under the aforesaid circumstances we are required to dispose of the matter on merits on the basis of record and on the basis of the submissions of the respective counsel which we have already heard at great length.3.The writ petition no. 171 of 1995 is filed by Saudi Arabian Airlines, against the order passed by the Labour Court on 31.1.1994 directing reinstatement of the respondent-employee, as also order dated 22nd December 1994 passed by the Industrial Court in Revision Application no. 16 of 1994 confirming the order of the labour court.4.The writ petition no. 1264 of 1995 is filed by the employee - Shri Salim Gandhi challenging that part of the order by which the learned Judge of the Labour Court directed that the issue of backwages is kept open to the parties, after any action from I.A.A.I. if taken. In other words, against the order declining awarding any backwages.5.The employee Salim Gandhi filed the complaint bearing no. 379 of 1992 under the provisions of the MRTU and PULP Act, against his employer M/s Saudi Arabian Airlines, alleging that the employer had engaged in unfair labour practices under items 1(a), (b), (d), (f) and (g) of Schedule IV of the MRTU and PULP Act. He contended that he has completed 13 years of continuous service and his present designation was Customer Service Agent and his place of work was Saudian Satellite Building situated at Sahar Airport, Bombay. The complainant has stated that he was suspended from duty by a letter dated 20th February 1992 alleging that on 25.1.1992 the complainant had forcibly removed the Airport Pass from a jeep no. MFC-506 belonging to M/s. Ambassador Sky Chef and had asked the driver Mr. Ambekar to follow him to the complainants office i.e. Saudian Cargo office and after reaching the office he removed the pass from the acrylic sheet cover and placed it on the typewriter and typed Gate no.4 on it and gave the pass back to the driver after instructing him to avoid gate no.4 on that day and use the said gate no.4 from the next date onwards. The employer alleged that the act of the complainant was very serious and hence the complainant was placed under suspension pending enquiry. The complainant denied the allegations.6.On 27th February, 1992, the complainant was issued with the charge sheet. Thereafter domestic enquiry was held against the workman. The enquiry was conducted from 16.3.1992 and in the inquiry advocates were permitted to represent both sides. The driver of the said jeep belonging to the said M/s Ambassador Sky Chef i.e. Shri Ambekar was examined. In his evidence Shri Ambekar has stated that the incident in fact took place on 24.1.1992 and not on 25.1.1992 as has been said till that moment, not only in his evidence but also in the chargesheet, suspension notice etc. The Chargesheet was allowed to be corrected by correcting the date. Thereafter two more witnesses by name Jeffert Arthon and Mrs. Neena Patkar were examined. The Enquiry Officer recorded a finding holding the complainant guilty of serious misconduct. The complainant was issued a show cause notice with copy of the enquiry officers report, asking him to show cause why further action should not be taken against him. The complainant was dismissed on 30th October 1992.7.The complainant alleged that the findings of Enquiry Officer was perverse and therefore prayed that the employer be restrained from continuing to commit unfair labour practice and he be reinstated with full back wages.8.The company contended the proceedings. It pointed out that the company received a letter dated 27.1.1992 from M/s The Ambassador Sky Chef, Bombay complaining that the said Mr. Salim Gandhi forcibly ripped open the lamination of their vehicle Air Port Pass and tried writing gate no.4 on it, when the driver on duty stopped him to temper in the pass. They requested the company to look into the matter. In view of the seriousness of the allegations, departmental enquiry was held against the complainant. The company pointed out that an independent Enquiry Officer was appointed to conduct the inquiry. Both parties were given enough chance to adduce evidence and ultimately as the complainant was found guilty of serious misconduct, he was dismissed from services. The company has emphasised the fact that the company is transporting passengers and cargo; security is one of the major aspects which the company is required to take care for the safety of the passengers, cargo and the property of the company. Apart from the normal security risks, the company is facing threats from terrorists. The charges proved against the complainant has direct nexus with the security aspects of the Airport in general and the company in particular. The company specifically pleased that the record of the complainant is also not good and in the past there were instances that had taken place which created doubts, about the complainant due to his behavior while on duty.9.The company challenged the jurisdiction of the learned Judge of the Labour Court to try the complaint. The learned Judge negatived that challenge. The learned Judge in paragraph 10 of his judgment has observed that in this matter and the fairness and propriety of the enquiry is not disputed. The parties have not led any oral evidence to support these cases. The challenge given to the enquiry if only on the point of perversity of the findings and dismissal order. It is pertinent to note that the Advocate for the complainant has made a specific grevience that witness Ambekar had changed the date of incident after completion of about 93 questions. However, the learned Judge of the Labour Court did not find any force in this argument, inasmuch as after correcting the date in the chargesheet, all witnesses were offered for cross examination including Mr. Ambekar and the learned Judge held that the inquiry cannot be said to be bad on this count.10.Coming to the only challenge to the findings of the Enquiry Officer i.e. they were perverse, the learned Judge observed that M/s Ambassador Sky Chef or Saudi Arabian Airlines dis not report the matter to the International Airport Authority of India, Sahar, Bombay and there is not evidence that the International Airport Authority of India has proceeded to take any steps in the matter. The learned Labour Judge felt that in such serious matter the International Airport Authority of India ought to have been informed in writing that the jeep involved in the matter was allowed to go by gate no. 1 and 5 and the jeep went through gate no.4 also from 1.1.1992 till 24.1.1992 without gate pass and that the company has not taken any action against any of the staff members who were responsible to drive the jeep on the Airport. If at all any action was to be taken, it should have been taken against the driver of the jeep who was driving the jeep but the employers of the driver i.e. M/s Ambassador Sky Chef have not taken any action against the said driver, whereas only on the word of the driver Mr. Ambekar, the complainant is to face action. The learned Judge felt that the evidence against the complainant i.e. of Ambekar, is of a interesting witness and without corroboration it is difficult to believe his words. The learned Judge has observed that whenever driver is held against any offence, it should be held against all responsible persons, otherwise it is very difficult to prove the offence or who is responsible man who has committed breach by taking jeep from gate no.4. Two other witnesses i.e. Mrs. Neena Patkar and Mr. Jeffrey Arathon were also examined and they have stated that they saw the screw driver in the hand of the complainant and he was sitting on a chair where there was typewriter. The learned Judge has again reiterated the fact that no action appears to have been taken against Ambekar by M/s Ambassador Sky Chef only because he reported this matter to the superiors, that does not absolve him from the liability whether the matter is of serious nature or not can only decided by I.A.A.I. The learned Judge observed that instead of the jeep driver, one passenger in the jeep is dismissed (obviously this reference is to the complainant). As the matter involved security, I.A.A.I. is the proper authority to take action and speak. No witness from I.A.A.I. is examined in this matter by the company. The learned Judge therefore felt that under such circumstances at this stage it cannot be said that the change of any gate pass by putting figure 4 is serious or not when the jeep was already going through gate no. 4 for 24 days without having valid permit. The learned Judge felt that under such circumstances action of dismissal from service is premature action as no witness form I.A.A.I. was examined and secondly by not reporting the matter to I.A.A.I. Under the circumstances the learned Judge held that the action taken against the present complainant must be a hasty and it is covered under item 1 (f) of schedule IV of the MRTU and PULP Act and therefore, the company is liable to withdraw form the same by giving work to the complainant. The learned Judge felt that if too I.A.A.I. takes any action against the complainant and others, the company make the fresh action against the present complainant. The learned Judge observed that the security staff of I.A.A.I. authority would have been the best evidence in the matter and therefore the finding of the enquiry officer is perverse.11.The order of the labour Judge was confirmed in revision by the learned Member of the Industrial Court by his order dated 22.12.1994. The revisional court merely referred to the entire paragraph 13 of the labour courts judgment and stated that in its opinion what has been held and discussed by the Labour Court is correct.12.We find it impossible to affirm to reasoning of the learned Judge of the labour court. It is relevant to notice that the specific charge against the complainant was that the complainant on January 25, 1992 (which date was later on changed to 24th January 1992) which the complainant was on duty at about 10.30 hours, Shri Subhash Ambekar the driver of the jeep No. MFC 506 of Ambassador Sky Chef was returning form Bay 41 to Saudia Cargo Staff in the said jeep. The policeman on duty at that gate stopped the jeep, as the gate no. 4 was not mentioned in the airport pass. The complainant requested the policeman (security person) to allow the jeep to proceed and that the complainant would have the pass rectified. Thereafter the complainant forcibly removed the pass alongwith the acrylic sheet from the jeep and told the driver to follow him to Saudia Cargo Office. In the office the complainant removed the acrylic sheet and placed the pass on the type-writer, typed gate no. 4 on it and returned the same to Shri Ambekar. The Complainant further told him to avoid going through gate no.4 on that dayi.e. on January 25, 1992 and asked him to use the gate no. 4 from the next day on-words. The chargesheet mentions that thus the complainant falsified the Airport pass of the said Jeep. The chargesheet further mentions that the aforesaid acts of the complainant amounts to serious acts of misconduct as per the model standing orders i.e. (i) froud or dishonesty in connection with employers business and (ii) commission of any act subversive of discipline or good behavior on the premises of the establishment. It is relevant to notice that the Saudi Arabian Airlines came to know about the misconduct of the complainant only upon the receipt of the letter from M/s. Ambassador Sky Chef reporting the incident. In the inquiry the said driver was examined. In the inquiry said Ambekar driver has stated as under :"After going out through gate no. 4 Mr.Salim Gandhi took me to the cargo office where he opened the Acrylic sheet by opening the scews with the screw driver, removed the Airport pass and typed gate no. 4 on the said pass and then placed the said Airport pass in between the acrylic sheet and tightened the screws".A zerox copy of the said pass was kept on record. It is an admitted position that the gate number which was put is erased by M/s. Ambassador Sky Chef and therefore there was no visible no. 4 on the said pass. The other witnesses who were present in the office of the Saudi Arabian Airlines situated at Sahar Airport in Cargo Section who have deposited to have seen the complainant with screw driver in his hand, Obviously they being colleagues, they would not go any further.13.On the basis of material on recorded we find it impossible of appreciate the reasoning or the conclusions of the learned Judge of the labour court. When a responsible employee of the Saudi Arabian Airlines, is proved upon evidence of Shri Ambekar, driver of the jeep, to have forcibly removed the security pass from the jeep belonging to M/s. Ambassador Sky Chef and when in fact he added the gate no. 4 and returned it to the driver and gave instructions to the driver to avoid gate no. 4 on that day but start using the same from the next date, dishonest intention and also serious misconduct of tampering with the security pass issued by the International Airport Authority of India, is clearly made out against the complainant. We fail to understand how the fact that the driver of the jeep is not proceeded against or the complaint is not lodged with the Airport Authority of India, has any relevante at all so for as the misconduct against the complainant is concerned. In our opinion the evidence before the Enquiry Officer was clinching and very clearly proved very serious misconduct and the entire reasoning of the learned Labour Judge is absolutely incorrect. The labour court has exceeded its jurisdiction in upsetting the finding recorded by the Enquiry Officer on the basis of very cogent and convincing evidence in that behalf. The revisional court has merely affirmed the finding recorded by the labour court.14.Shri Ganguli learned counsel appearing for the employee also submitted that the punishment of dismissal is rather harsh. We do not agree. Apart from the fact that the misconduct proved i.e. tampering with and falsely inserting additional gate number in the security pass issued by the International Airport Authority, is extremely serious matter, deserving punishment of dismissal, we are also of the view that the law is settled that once the misconduct is proved in the departmental inquiry and the punishment awarded is one that could be awarded for such misconduct, then courts of law would not interfere on the quantum of punishment.

Decision:
0[ds]12.We find it impossible to affirm to reasoning of the learned Judge of the labour court. It is relevant to notice that the specific charge against the complainant was that the complainant on January 25, 1992 (which date was later on changed to 24th January 1992) which the complainant was on duty at about 10.30 hours, Shri Subhash Ambekar the driver of the jeep No. MFC 506 of Ambassador Sky Chef was returning form Bay 41 to Saudia Cargo Staff in the said jeep. The policeman on duty at that gate stopped the jeep, as the gate no. 4 was not mentioned in the airportthe basis of material on recorded we find it impossible of appreciate the reasoning or the conclusions of the learned Judge of the labour court. When a responsible employee of the Saudi Arabian Airlines, is proved upon evidence of Shri Ambekar, driver of the jeep, to have forcibly removed the security pass from the jeep belonging to M/s. Ambassador Sky Chef and when in fact he added the gate no. 4 and returned it to the driver and gave instructions to the driver to avoid gate no. 4 on that day but start using the same from the next date, dishonest intention and also serious misconduct of tampering with the security pass issued by the International Airport Authority of India, is clearly made out against the complainant. We fail to understand how the fact that the driver of the jeep is not proceeded against or the complaint is not lodged with the Airport Authority of India, has any relevante at all so for as the misconduct against the complainant is concerned. In our opinion the evidence before the Enquiry Officer was clinching and very clearly proved very serious misconduct and the entire reasoning of the learned Labour Judge is absolutely incorrect. The labour court has exceeded its jurisdiction in upsetting the finding recorded by the Enquiry Officer on the basis of very cogent and convincing evidence in that behalf. The revisional court has merely affirmed the finding recorded by the labour court.14.Shri Ganguli learned counsel appearing for the employee also submitted that the punishment of dismissal is rather harsh. We do not agree. Apart from the fact that the misconduct proved i.e. tampering with and falsely inserting additional gate number in the security pass issued by the International Airport Authority, is extremely serious matter, deserving punishment of dismissal, we are also of the view that the law is settled that once the misconduct is proved in the departmental inquiry and the punishment awarded is one that could be awarded for such misconduct, then courts of law would not interfere on the quantum of punishment.