1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2028 OF 2009 Hiraman Shankar Balkavade .. Petitioner Vs Poona Brush Company .. Respondent A.P. Vanarase for the petitioner A.D. Patwardhan for the respondent CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 22nd September, 2009 P.C.: 1. Heard the learned counsel for the petitioner employee and the learned counsel for the respondent management. 2. The case of the petitioner is that he was appointed in the year 1972. He came to be terminated on 24th June,1997. He raised a dispute. Ultimately, reference came to be made to the First Labour Court, Pune. By order dated 12th October,2006, the said reference came to be rejected. Hence, this petition. 3. First of all, it is seen that the impugned order is dated 12th RMA wp2028-09.sxw 2 October,2006. The writ petition has been affirmed on 17th October, 2008. However, the record shows that the petition was filed only in the month of March, 2009. There is inordinate delay in filing the petition. Moreover, no reason has been furnished for delay in filing the petition. In my view, just on the ground of delay and latches, this petition deserves to be dismissed. 4. However, even otherwise I am of the opinion that no case is made out by the petitioner for any interference in the order dated 12th October, 2006. The petitioner came to be terminated from service as it was held in departmental enquiry that the charges against him were proved. Two charge sheets were issued to the petitioner i.e charge sheet dated 15th April, 1997 for misconduct which he committed on 12th April, 1997 and the second charge sheet dated 25th April, 1997 in respect of incident which occurred on 18th April, 1997. 5. As far as the first charge sheet is concerned, the misconduct alleged against the petitioner is that on 12th April, 1997 at about 9.15, Supervisor Mr. Kamble told the petitioner the work of assisting Mr. Chandekar on mori brush machine. However, the petitioner RMA wp2028-09.sxw 3 refused to do that work. At about 10.15 am, production manager Mrs. Khatod again tried to convince the petitioner to do that work. However, the petitioner again refused to do that work and actually did not perform that work. At about 10.30 am, partner of the company Mr.Khatod called the petitioner and other workers in his office and tried to convince him. However, the petitioner tried to instigate other workers and told other workers that nobody should speak with Mr. Khatod and they should not listen him and he went away. In the evening when the manager called the petitioner and other three workers to give memo and warning, at that time the petitioner refused to accept that letter. The petitioner snatched the memo and threw it towards Khatod and told that he would not receive that letter and they should send it to Labour Office. The petitioner spoke arrogantly and went away. The petitioner also told other workers not to accept that letter and other three workers did not work on that day. Hence, there was absence mark on their attendance card. The petitioner argued with Mr. Dhone. Mr Dhone gave attendance card to Mr. Khatod. Again the petitioner spoke arrogantly with Mr. Khatod that he would see him, he will not let RMA wp2028-09.sxw 4 him free. After loudly shouting thus, the petitioner went away. It was alleged that the petitioner had committed misconduct under clause 24 a,b, k and L of Standing Orders. 6. As far as the second charge sheet is concerned, it pertains to an incident which occurred on 18th April, 1997. On that day, at about 10.15 am, the petitioner came in the premises of factory of the respondent and abused the owners of the respondent in filthy language and threatened them. It was alleged that the petitioner shouted loudly and abused in filthy language to Mrs. Khatod and told her that he would tear her saree and the petitioner would see her after she came outside the factory and thus, threatened her. Mrs. Khatod lodged complaint with police against the petitioner. The petitioner was given warning by the police. It was thus alleged that the petitioner had committed misconduct under clause 24 k and24 I of Model Standing Orders. 7. According to the petitioner, he was terminated illegally. However, according to the respondent, the petitioner had committed serious misconduct on two occasions, hence he came to be dismissed from service after following procedure. As far as the enquiry is RMA wp2028-09.sxw 5 concerned, the petitioner participated in the enquiry proceedings along with his defence representative. He also examined one witness Mr. Padwal. In the enquiry proceedings, management examined two witnesses i.e Mr. Khatod and Mrs. Khatod. Thus, both the parties led evidence in the enquiry proceedings. One has to see whether the management has proved the charges. On this aspect, the evidence of the management witnesses Mrs.Khatod and Mr. Khatod is material. 8. Mrs. Khatod deposed that she was working as a manager with the respondent. On 12th April, 1997, she gave instructions on phone to supervisor Mr. Kamble at about 10.15 am when she came in the company. Mr. Kamble told that as per her instructions, he told Mr. Chandekar to operate Mori brush machine and told the petitioner to assist him. However, the petitioner refused to assist Mr. Chandekar. Mrs. Khatod further deposed that she went to the work shop and asked explanation from the petitioner and asked him to assist Mr. Chandekar, but the petitioner arrogantly refused to do that work. Mrs. Khatod further deposed that this incident was reported to owner Mr. Khatod. Thereafter, Mr. Khatod called RMA wp2028-09.sxw 6 all the workers in his cabin. Mr. Khatod told all the workers to observe discipline. Then the petitioner told all the workers that nobody should speak with saheb and should not listen to him and they did not want to discuss the matter and the petitioner went away from the cabin. She further deposed that they had prepared memo and gave it to Mr. Dhone Clerk at about 5.30 pm, Mr. Dhone gave that memo to the petitioner. However, the petitioner came near her and threw that memo towards her and told that he would not accept that chit and she should send it to the Labour officer. On that day, the petitioner did not do any work. Hence, there was absence mark on his attendance card. The petitioner asked Mr. Dhone as to why there was absence mark on his attendance card. Hence, Mr. Dhone brought his card to Mr. Khatod. The petitioner came in the cabin and spoke arrogantly. Mrs. Khatod further deposed that again on 18th April, 1997, at about 10.15 am, the petitioner came to the door of the office and started abusing her in filthy language and he told her that he would tear her saree and he would see her when she came outside. She could not tell the details of abuses as those were in filthy language. Thereafter, Mrs. RMA wp2028-09.sxw 7 Khatod lodged criminal complaint with the police. Police had given warning to the petitioner. The evidence of Mr. Khatod supports the evidence given by Mrs. Khatod. 9. As per the evidence of Mrs. Khatod and Mr. Khatod, the petitioner refused to do the work told to him and he abused and threatened Mrs. Khatod and Mr. Khatod. The cross-examination of both the management witnesses is also material. Management witness Mrs. Khatod stated in her cross examination that she generally came to the factory at about 9 to 9.30 am. She used to allot the work to the workers. If she came late, then she gave instructions on telephone to the supervisor about allotment of the work. She further stated that supervisor used to give instructions about the work orally to the workers. She further stated that on 12th April, 1997 she told the petitioner to assist machine operator Mr. Chandekar on mori brush machine. Mrs. Khatod further stated that Mr. Chandekar was working as skilled worker with the company. The petitioner was working as unskilled worker. As per the evidence of Mrs. Khatod, the petitioner was not asked to work on mori brush machine but he was merely told to assist Mr. Chandekar who was RMA wp2028-09.sxw 8 operator on that machine. So the contention of the petitioner that he never worked on mori brush machine and hence, he refused to work on mori brush machine is an incorrect contention. It is clear from the evidence of the petitioner that he refused to work on mori brush machine. The reason given by the petitioner that he did not know how to operate the machine, hence he refused to operate the same cannot be accepted as he was not asked to operate mori brush machine but he was merely asked to assist Mr. Chandekar. So the reason given by the petitioner for his refusal cannot be accepted. It was also submitted on behalf of the petitioner that mori brush machine was not working, therefore there was no question of working on it. In this connection, I may refer to the cross- examination of Mrs. Khatod. In the cross-examination, Mrs. Khatod has specifically denied that mori brush machine was not working for about 8 years. Moreover, the petitioner has not brought any material on record by way of examining a witness or otherwise to show that the machine was not working. In cross-examination of Mrs. Khatod, it was asked by defence representative that on 12th April, 1997, the petitioner was sitting at his place of work and RMA wp2028-09.sxw 9 Khatod accepted this contention. This shows that the petitioner did not work on 12th April, 1997 as per the instructions of supervisor as well as production manager Mrs. Khatod. As per the evidence of Mrs. Khatod, initially supervisor told the petitioner to do the work and he refused to do the same. Thereafter, even the production manager told the petitioner to do that work and he again refused to do that work. Thereafter, Mr. Khatod who was partner of the respondent called the petitioner and other workers and tried to convince them, even then the petitioner refused to do the work and also told the other workers not to listen to Mr. Khatod. It has also come on record in the evidence of Mr. and Mrs. Khatod that the petitioner spoke arrogantly, shouted loudly and abused both of them. 10.Mrs. Khatod had also stated that on 12th April, 1997, in the evening, the petitioner and three workers were called to give the memo but the petitioner and three workers refused to accept that memo. The petitioner had thrown that memo towards Mrs. Khatod and spoke arrogantly. In cross-examination, Mrs. Khatod also stated that on 12th April, 1997, she told the petitioner to assist Mr. RMA wp2028-09.sxw 10 Chandekar operator on mori brush machine and the petitioner refused to do that work. It is seen that it was suggested by defence representative himself that the petitioner refused to do that work. This shows that it is admitted by the petitioner that he refused to do the work which was told by Mrs. Khatod. 11.The learned counsel for the petitioner submitted that it is the case of the respondent that Mr. Kamble asked him to work on the mori bursh machine. At that time, Mr. Chandekar was also present. However, both these witnesses have not been examined in the enquiry. He further submitted that as far as allegations against the petitioner that he abused and threatened Mr. Khatod is concerned, though many workers were present at that time, no any worker was examined in the enquiry proceedings by the management. It was the contention of the petitioner that no other workers were examined by the respondent to prove the charges. However, it is the choice of the management as to who they should examine as a witness and how many witnesses they should examine in relation to a charge. In respect of incident which occurred on 18th April, 1997 at about 10.30 am, , Mrs. Khatod had stated in her cross- RMA wp2028-09.sxw 11 examination that no other workers were present there. In cross- examination, it was asked by the defence representative that when the petitioner uttered the words, "he would tear her saree and she should come outside"at that time, who was present there. Mrs. Khatod stated that no other workers were present there and workers were working at the work shop. This suggestion given by defence representative and the answer thereto shows two things ; firstly, that the petitioner has admitted that he used the words that he would tear her saree and she should come outside, then he would see her" and secondly that there was no other witness to the incident, hence, there was no question of examining anyone else. Mrs. Khatod also stated that she had given police complaint as the petitioner abused her and threatened her and police had given warning to the petitioner. The fact of giving police complaint has not been categorically denied by the petitioner. 12.The evidence of Mrs Khatod production manager is corroborated by the evidence of Mr. Khatod. In cross-examination, Mr. Khatod denied that the petitioner used to take part in the union activities and hence he was victimized. On perusal of cross examination of RMA wp2028-09.sxw 12 both the management witnesses, it can be seen that no where it was denied specifically that the petitioner did not abuse and threaten Mr. and Mrs. Khatod. On the other hand, such suggestions were asked to both the witnesses which show that the petitioner admitted the incident of being asked to work on mori brush machine and gave only excuses for the same. However, as discussed earlier such excuses are not acceptable. 13.The petitioner has examined one witness on his behalf i.e Mr. Padwal in the enquiry proceedings. Witness Padwal could not state as to what happened in the cabin of Mrs. Khatod on 12th April, 1997. He admitted that on that day, he was given memo and he refused to accept that memo. He admitted that on 18th April,1997, police called him and police asked about the disputes. Police also asked whether they abused. Mr. Padwal admitted in cross- examination that before him, the petitioner did not abuse the production manager. He also admitted that he gave deposition on the say of the petitioner. This admission given by Mr. Padwal shows that he was a tutored witness; in such case his evidence is not of much help to the petitioner. Thus, the evidence led by the RMA wp2028-09.sxw 13 petitioner does not establish the innocence of the petitioner. On the other hand, the evidence led by the management is cogent and satisfactory. Nothing has come on record in the cross-examination of both the management witnesses to disbelieve their evidence. 14.The misconduct committed by the petitioner has been proved. As far as quantum of punishment is concerned, the petitioner misbehaved in the premises of the company. The conduct of the petitioner amounted to indiscipline in the premises of the company. The petitioner has abused the manager of the company who is a lady in filthy language and also threatened her that he will tear of her saree and he would see her when she come out of the premises of factory. The Labour Court has rightly observed that even in the quantum of punishment, no case is made out for interference,. Looking to all the above facts, no case is made out for interference. The petition is dismissed. (SMT. V.K. TAHILRAMANI, J) RMA wp2028-09.sxw 14 RMA wp2028-09.sxw