1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1777 OF 2008 The Parsik Janata Sahakari Bank Ltd. ..Petitioner. Vs. Vishwas Sakharam Gole ..Respondent. .... Mr. Rahul Nerlekar for the Petitioner. Mr. Prasad B. Kulkarni for the Respondent. Mr. Vishwas Gole – Respondent present in Court. .... CORAM: DR. D.Y. CHANDRACHUD, J. 6th October, 2008. JUDGMENT : 1. Rule, made returnable forthwith. Counsel appearing for the Respondent waives service. By consent of the learned counsel, taken up for hearing and final disposal. 2. The Respondent was engaged as a security guard with the Petitioner, which is a co-operative bank. A charge sheet was issued to the Respondent on 3rd July, 2000. The allegation of misconduct pertained to two incidents. The first incident took place on 17th May, 2000 when the workman was found by the manager to be sitting on a bench which was meant for account 2 holders of the Murbad Branch. Upon being asked as to why the workman was sitting on a bench meant for the account holders and neglecting his watch and ward duties, the workman got enraged and he had spoken arrogantly with the manager, informing him that he was unaware of the rules of the bank. The second incident is alleged to have taken place on 17th June, 2000. The main gate of the bank was to be opened for account holders at 11.00 a.m. It is alleged that the workman reported for work at 10.00 a.m. and opened the gate upon which an account holder – R.N. Gujre entered the bank for a transaction. It is alleged that the workman was thereupon told that he ought not to have opened the main gate prior to 11.00 a.m. which was the scheduled time of opening upon which the workman forcibly dragged the account holder out of the premises of the bank and intentionally humiliated him. The workman was charge-sheeted for a misconduct involving disobedience of lawful orders of superiors and of committing acts subversive to discipline and good behaviour and prejudicial to the interest of the bank. 3. Consequent upon a disciplinary enquiry the workman was dismissed from service. In a complaint of unfair labour 3 practices under items 1(a), (b), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, the Labour Court by a judgment dated 11th October, 2005 held that the enquiry was fair and proper and that the findings were not perverse. The bank had filed a list of documents on the record on 4th October, 2007 inter alia referring to the past record of the workman which was stated to be adverse. The Labour Court by an order dated 21st September, 2006 came to the conclusion that the misconducts that were proved against the workman were not serious,so as to warrant the penalty of dismissal. The order of dismissal was set aside and was substituted by a direction for reinstatement with continuity of service though with the stoppage of two increments on a permanent basis. The order of the Labour Court was confirmed by the Industrial Court in revision. 4. Counsel appearing for the Petitioner has submitted that the acts of misconduct that were proved against the Respondent were of a serious nature and his past record also shows that punishments had been imposed upon him for a breach of the rules and regulations. In the circumstances, it was urged that the Labour 4 Court was manifestly in error in interfering with the order of the disciplinary authority and the Industrial Court ought to have exercised its revisional powers. On the other hand, counsel appearing for the workman submitted that the order of the Industrial Court should not be interfered with under Article 226. 5. The Labour Court has held that the disciplinary enquiry was fair and proper and that the findings were not perverse. The charge against the Respondent workman was of a serious nature and related to the two incidents which are found to be established. In the first incident the workman was asked by the manager of the bank as to why he was sitting on a bench meant for account holders and neglecting the due performance of his duties as a watchman. This met with an arrogant response from the workman. The second charge involved the conduct of the workman in physically removing a customer of the bank who had entered the premises of the bank, finding that the gate had been opened by the workman. The workman had opened the gate before the scheduled time. The disciplinary authority has found that the charges of misconduct were duly established. The Labour Court held that the enquiry was fair and proper and there was no 5 perversity in the findings. On the basis of these findings, it is impossible to accept the view of the Labour Court that the charge of misconduct was not of a serious nature. The charge was indeed serious since it is evident from the facts which have been established on the record that there was negligence on the part of the Respondent in the discharge of his duties as a watchman of the bank and, in physically removing a customer from the premises of the bank without any reasonable justification. Negligence of a workman in the performance of watch and ward duties is a serious charge. More so when the institution is a bank. Misbehaviour towards a customer of a bank is not a trifling matter. The disciplinary authority was justified in taking a serious view of the matter. The workman acted in a manner subversive to discipline and engaged in conduct prejudicial to the interest of the bank. In these circumstances, an order of reinstatement could not have been passed. 6. Counsel appearing for the bank has also placed on the record a compilation of documents to show that on several occasions in the past, the workman has been subjected to disciplinary action. A charge-sheet was issued on 28th March, 6 1995. The workman admitted his guilt following which the bank decided to take a lenient view by suspending the workman for four days, by an order dated 27th September, 1995. Once again a charge sheet was issued on 10th July, 1996 and on 14th September, 1996 involving the conduct of the workman against lady customers. A warning memo was issued on 23rd May, 1997. The Labour Court in its order dated 11th October, 2005 has also observed that in the present case the workman had given a letter dated 10th July, 2000 in the course of the enquiry apologizing for his behaviour. The Labour Court noted that the workman had not been able to establish that this letter was procured by coercion. 7. The misconduct which has been held to be duly established, in disciplinary proceedings which were procedurally fair, was of a serious nature. The past record of the workman does not contain any extenuating circumstance. On the contrary the past record shows that he was penalized on previous occasions, including for arrogant behaviour. In these circumstances, the Labour Court had no justification whatsoever to interfere with the disciplinary penalty. The Industrial Court has manifestly failed to exercise the jurisdiction vested in it in law to correct the judgment 7 of the Labour Court. In the circumstances, this Petition will have to be allowed. 8. Before concluding it would be necessary to observe that the hearing of the Petition was adjourned on previous occasions since the learned counsel sought to explore the possibility of a settlement. The Court has been informed by both the learned counsel that no settlement has been possible. 9. Rule is accordingly made absolute in terms of prayer clause (a). The judgment of the Labour Court dated 21st September, 2006 and of the Industrial Court dated 4th January, 2008 are quashed and set aside. Complaint (ULP) No.32 of 2002 shall accordingly stand dismissed. There shall be no order as to costs. *****