WP/3993/1998 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3993 OF 1998 H.S. Kadlak ... Petitioner V/s. Pico Electronics & Electricals Ltd., Pune & Anr. ... Respondents Mr. S.M. Dharap for the Petitioner. Mr. K.S. Bapat for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. DATE : 12 TH JANUARY, 2011. ORAL JUDGMENT : 1. The present Writ Petition arises from the Awards passed by the Labour Court, Pune in Reference (IDA) No.240 of 1989. By Award Part I, the Labour Court has concluded that the enquiry held against the petitioner was not vitiated as it was conducted in accordance with the principles of natural justice. The Labour Court has also concluded that the findings of the Enquiry Officer were not perverse. By Award Part II, the Labour Court has found that the punishment of dismissal was justified and has, therefore, not interfered with the order passed by the respondent-Company. 2. The petitioner herein was employed in the Audio Production Department of the respondent-Company from 1st June, 1968. According to the petitioner he was an activist of the Union representing the workmen employed in the Company. Several disputes in respect of the service conditions of the workmen employed with the respondent-Company had arisen in 1983 and the petitioner claims that he was at the forefront of agitations led to redress the grievances of the workmen. WP/3993/1998 2 3. A charge sheet was issued to the petitioner on 11th June, 1983 in which it was alleged that he had not followed the instructions of his superior officer one Mr. Manglurkar. Thereafter within a week second charge sheet was issued in which the same misconduct was alleged against him. A reply was submitted to both the charge sheets on 13th June, 1983 and 18th June, 1983, respectively, by the petitioner. He was also suspended from duty from 18th June, 1983. In his reply he denied the charges and stated that the charge sheet issued to him was vague. On 5th July, 1983, a third charge sheet was issued to the petitioner in which it was alleged that he had tripped the Production Chief when he was walking towards the Company’s Bus. A witness to the incident was also named in the charge sheet. Besides this, it was alleged that he was instigating the workmen to heckle, hoot and shout at the managerial staff who were leaving the factory premises. The petitioner replied to this charge sheet also denying the charges contained therein. A fourth charge sheet was issued two months later, i.e. on 11th September, 1983, in which it was alleged that he had instigated another workman namely Mr. M.M. Londhe to stone the car in which some of the officers of the Company were travelling, outside the factory premises. This charge was also denied by the workman. 4. Although there were four separate charge sheets, a common enquiry was conducted in respect of the same. The workman and his representative had agreed that evidence in respect of the first and second charge sheet should be WP/3993/1998 3 treated as common evidence in respect of these two charge sheets. However, there was no consent or agreement on the part of the workman that a common enquiry should be held in respect of the third and fourth charge sheet or that the enquiry in respect of those charge sheets should be clubbed together with the enquiry in respect of the first and second charge sheet. This was obviously because the allegations in those charge sheets were totally different, whereas the charges in the first and second charge sheets were similar. Evidence of Mr. Manglurkar and the petitioner was led in respect of the first and second charge sheet. Instead of submitting his findings and report in respect of these two charge sheets, the Enquiry Officer continued the enquiry in respect of the third charge sheet. As mentioned earlier, this charge sheet was in respect of two charges namely; (i) instigation of the workmen to heckle, hoot and shout at the managerial staff who were boarding the Company’s bus leaving the factory premises; and (ii) tripping the Production Chief while he was boarding the Company’s Bus. The evidence of the Production Chief and the witness named in the charge sheet, one D.S. Patil was led on behalf of the Company before the Enquiry Officer and the workman examined himself. After completion of the evidence in respect of the third charge sheet, the Enquiry Officer did not bother to furnish his report and findings. He continued with the fourth charge sheet where again the charge levelled was that the workman had instigated his co-worker one Mr. M.M. Londhe to stone the car in which some officers of the Company were travelling. The respondent-Company examined two witnesses namely Mr. R.K. Dudhat, a Security and Transport Officer WP/3993/1998 4 and Mr. H.C. Gole, the Production Manager, who were travelling in the car when it was stoned. In his defence, the workman led his own evidence. 5. After deposing in respect of the third and fourth charge sheet, the workman had sought permission to examine his witnesses who were outsiders and not employees of the Company. This permission was not granted by the Enquiry Officer as according to him the workman had not made out any case for calling such witnesses to depose at the enquiry. 6. The Enquiry Officer submitted his report in respect of these four charge sheets on 28th April, 1985 finding the petitioner guilty of the charges levelled in each of these charge sheets. While commencing his report, the Enquiry Officer has passed several remarks criticizing the conduct of the workman at the enquiry. The Enquiry Officer had commented upon the attitude of the workman of seeking adjournments for one or the other reason. He was critical of the fact that the workman and his representative had sought adjournments which resulted in the enquiry being prolonged from 2nd October, 1983 to 31st March, 1985. These general observations have been made without reference to any particular charge sheet. Therefore, there is no indication in the report and findings of the Enquiry Officer as to whether those comments apply to the conduct of the petitioner while defending one or the other charge sheets. 7. As regards the refusal to permit the workman to examine outsiders at the enquiry, the Enquiry Officer has stated in his report that the workman had not led WP/3993/1998 5 any foundation for examining such witnesses. The workman had sought to examine these outsiders as he wanted to establish that he was not present when the incident alleged in the third and fourth charge sheet occurred. The Enquiry Officer, after having refused the petitioner permission to examine the witnesses who were not employees of the Company, has held that the workman was not able to establish his alibi that he was not present in Bhosari when the incident occurred but was at Kanhewadi which was 20 kms. away from Bhosari. 8. After receiving the report and findings of the Enquiry Officer, the respondent-Company accepted the same and dismissed the workman from service on 8th July, 1985. 9. Being aggrieved by the decision of the respondent-Company, the petitioner raised an industrial dispute which was referred for adjudication as Reference (IDA) No.240 of 1989. In his statement of claim, the workman pleaded that the enquiry was vitiated as the Enquiry Officer had not complied with the principles of natural justice and fair play while conducting the domestic enquiry. It was further pleaded that the findings of the Enquiry Officer were not supported by the evidence on record and were, therefore, perverse. It was also contended that the petitioner had been victimized to undermine the strength of the trade union to which he belonged to. The workman then pleaded that even assuming the charges could be said to have been proved, the punishment of dismissal was harsh and excessive. WP/3993/1998 6 10. In its written statement, the respondent-Company contended that the workman had been found guilty by the Enquiry Officer. The Labour Court and the Industrial Tribunal had approved of the action taken by the Company in Approval Application (IT) No.9 of 1985 in Reference (IT) No.1 of 1985. It was further pleaded that the enquiry has been conducted after affording the petitioner sufficient opportunity to defend himself at the enquiry. Proper conclusions had been drawn by the Enquiry Officer and, therefore, there was no need to interfere with the same. It was also pleaded that the punishment imposed was commensurate with the misconduct committed by the workman. 11. The Enquiry Officer was examined to prove the enquiry. By Award Part I, the Labour Court concluded that the domestic enquiry held against the petitioner was in consonance with the principles of natural justice and fair play and that the findings recorded against him were not perverse. Evidence of the petitioner was led in respect of the proportionality of the punishment imposed on him. Thereafter, by Award Part II, the Labour Court dismissed the Reference by concluding that the punishment was commensurate with the misconduct proved against the petitioner. 12. The charge in the first and second charge sheet was that the workman had not complied with the orders of his superior officer, Mr. Manglurkar to carry out his job. Mr. Manglurkar had found him sitting idle and had directed the petitioner to work. It appears that Mr. Manglurkar found him sitting idle again after a few WP/3993/1998 7 hours. There is no material on record to indicate that the workman had in fact sat idle even after Mr. Manglurkar had told him to work. No other witnesses except for Mr. Manglurkar has been examined in respect of these charge sheets. The Enquiry Officer has found the workman guilty of these charges. Merely because a workman was found idle at 12:30 pm on a particular date and again at 7:15 a.m. after a week, it would not necessarily mean that he had disobeyed the lawful and reasonable orders of his superior. There is no material on record to indicate that Mr. Manglurkar continued to find the workman idle throughout the day. Therefore, in my view, these two charges cannot be said to have been proved. The finding of the Enquiry Officer and the Labour Court that the charges contained in the charge sheets dated 11th June, 1983 and 18th June, 1983 have been proved is perverse. 13. As regards the third charge sheet, which was issued on 5th July, 1983, the workman has replied to the same seeking a translation. However, such a translation was not furnished to him and he had it translated by his co-workman the next day. In his evidence before the Enquiry Officer, the workman sought to contend that he was not present at the place where the incident had occurred and, therefore, the question of him tripping Deepak Kapoor, Production Chief, did not arise. It is submitted by Mr. Dharap, the learned Advocate on behalf of the petitioner, that the Enquiry Officer disallowed the application made by the petitioner to examine witnesses who were not employees of the respondent- Company. These witnesses were to be examined in order to prove the alibi of the WP/3993/1998 8 petitioner, according to Mr. Dharap. He submits that the observation of the Enquiry Officer that a workman had not examined any witnesses to establish his alibi is contrary to the directions of the Enquiry Officer refusing to permit the petitioner from examining the outsiders. Mr. Dharap has submitted that besides Deepak Kapoor and Deepak S. Patil, the Company has not chosen to examine any other witness. He points out that the Company’s contention was that a mob of workmen had gathered inside the factory premises through which Deepak Kapoor and other officers of the Company walked towards the Company’s Bus. He further points out that it was alleged against the petitioner that he instigated workers to heckle, hoot and shout at the managerial staff. According to Mr. Dharap, this could have been possible only if the workman was facing the mob and was not behind Deepak Kapoor, as alleged by him. The learned Advocate submits that the workman could not have instigated other workmen and tripped Deepak Kapoor at the same time. Given the factual position as pointed by the Company in the charge sheet, Mr. Dharap submits that the Company ought to have examined an independent witness at the enquiry. He also points out the contradictions in Deepak Kapoor’s evidence and the charge sheet in as much as the charge sheet mentions that the petitioner tripped him while walking behind him whereas in his evidence before the Enquiry Officer, Deepak Kapoor has stated that the petitioner was walking along side him on his right when he tripped him. 14. In my opinion, the submissions of Mr. Dharap are unacceptable. The Enquiry Officer has not committed any error by disallowing outsiders as the WP/3993/1998 9 workman had not led the foundation to prove any alibi for the incident which occurred on 4th July, 1983. In fact, the workman had not replied to the charge sheet which admittedly was explained to him by his co-worker. He has not made any grievance at the enquiry about the fact that the charge sheet had not been translated for him. The workman ought to have replied to the charge sheet at the first instance indicating that he was not present at the site when the incident occurred. The grievance of Mr. Dharap that some other worker ought to have been examined before the Enquiry Officer in respect of this charge is also unsustainable. Merely because some other worker is not examined, it would not lead to the inference that the incident had not occurred. It is the quality of the evidence which is material and not the quantity. Both Deepak Kapoor as well as Deepak Patil have stated in their depositions that Deepak Kapoor was tripped by the petitioner. It is true that they have stated that the petitioner tripped him while walking on the right of Deepak Kapoor, while the charge sheet mentions that he was behind Deepak Kapoor. However, this difference in the position of the workman at the site is not material. The fact is that the petitioner had tripped Deepak Kapoor. Although Deepak Kapoor stumbled, he recovered and was able to proceed further to the Bus. In my opinion, therefore, the incident of tripping Deepak Kapoor has been established. However, there is no material on record about the petitioner instigating workers to heckle, hoot and shout at the managerial staff. WP/3993/1998 10 15. As regards the fourth charge sheet, which was issued on 11th September, 1983, the allegation is that on 3rd September, 1983, certain employees of the Company who were travelling by car saw the petitioner standing at a cross road with his co-employee M.M. Londhe. It is further alleged that when the car was about to pass the petitioner, he signalled to Londhe who then threw stones at the occupants of the car. Stones hit the rear left door of the Company’s car and damaged it. Thereafter the petitioner ran away from the site. It is material to note that there is no allegation of stone throwing against the petitioner. There is also no material on record to indicate as to whether any action has been taken against M.M. Londhe who actually threw the stones. I am not impressed with this submission of Mr. Dharap that the incident occurred outside the factory premises and, therefore, it was not necessary to take cognizance of the same. There are judgments of the Supreme Court as well as this Court which hold the field that a workman who is involved in an incident outside the factory premises which amounts to a misconduct, he can be punished as long as there is a nexus between the incident and the work place. 16. Both the Enquiry Officer and the Labour Court have found that the petitioner had committed acts of riotous, disorderly and indecent behaviour on the premises of the establishment and a willful damage to the property of the establishment. The workman before the Enquiry Officer had deposed that since these occupants of the car were on personal work, it could not be said that he WP/3993/1998 11 committed any act of misconduct. Two occupants of the car were examined before the Enquiry Officer. They have corroborated each others testimony. In this case also the workman had sought permission to examine persons who were not employees of the Company. However, in spite of sufficient opportunity being granted to produce these witnesses, the petitioner failed to do so. From the evidence led before the Enquiry Officer, the only act attributable to the petitioner is that he signalled to M.M. Londhe. 17. On a perusal of Award Part II passed by the Labour Court, in my opinion, it has committed an error in finding that the conclusions drawn by the Enquiry Officer are not perverse. As already mentioned, the Enquiry Officer has concluded that charge sheets in respect of disobedience of Manglurkar’s order has been proved. However, in my opinion, the material on record does not support this finding and, therefore, it is perverse. As regards the third charge sheet although the misconduct has been proved, in my opinion, the acts of misconduct do not warrant the punishment of dismissal. There is a preponderance of probability that the workman had tripped Deepak Kapoor but, in my opinion, this misconduct ought not to have resulted in dismissal of the workman. A lesser punishment could always have been imposed on him. In respect of the incident of stone throwing, there is no material on record to indicate that the petitioner had thrown stones at the car. In fact that is not the allegation against him. There is no material on record to support the finding that the petitioner had in fact asked M.M. Londhe to stone the car. What was the signal given by the petitioner to M.M. WP/3993/1998 12 Londhe is a matter of perception. In these circumstances, in my opinion, the workman has not committed any misconduct alleged in the fourth charge sheet. 18. Thus, the only misconduct which is proved against the petitioner is that he tripped Deepak Kapoor for which the Labour Court ought to have exercised its powers under Section 11A of the Industrial Disputes Act and imposed a lesser punishment. Instead the Labour Court observed as follows : “On the other hand the learned Advocate for the second party union and consequently the workman concerned contended that in Reference under the I.D. Act the Court has got tremendous powers and can interfere with the punishment imposed by the management by taking recourse to Section 11-A of the Courts can interfere with the punishment imposed on the workman by the management the said powers are required to be utilized not by way of rule but as and when the case of that nature is appearing.” 19. In my opinion, these observations of the Labour Court are completely incorrect. The provisions of Section 11A of the Industrial Disputes Act are to be exercised in every Reference regarding reinstatement with continuity of service and full back-wages. However, whether relief should be granted to a workman in exercise of the powers under Section 11A of the Industrial Disputes Act is a matter which will depend on the nature of the misconduct committed by the workman. The jurisdiction vested in the Labour Court under Section 11A of the Industrial Disputes Act cannot be utilized at the whim of the Labour Court. It is to be exercised uniformly in every case. The Labour Court is expected to determine WP/3993/1998 13 whether findings of the Enquiry Officer are based on the evidence led at the enquiry. It has then to consider the past record of the workman and decide whether the punishment of dismissal is commensurate with the misconduct committed. In the present case it appears that the workman had been dismissed earlier by the Company after which he was reinstated. However, there is no material on record to indicate the reason for his termination from service. The past record has not been produced before the Labour Court by the respondent- Company. In these circumstances, in my opinion, the Labour Court was incorrect in dismissing the Reference. 20. The Awards passed by the Labour Court, Pune in Reference (IDA) No.240 of 1989 are set aside. Reference (IDA) No.240 of 1989 is allowed. However, since the workman has committed a misconduct, he is deprived of 50% of his back- wages. He is, therefore, entitled to reinstatement with continuity of service and 50% of the back-wages. 21. In case the workman has attained the age of superannuation, he would be entitled to his retiral benefits including gratuity and all other legal dues. 22. The Writ Petition is allowed accordingly. 23. Rule made absolute.