1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.1594 of 1997 Shri P.R. Dabholkar Petitioner Vs. M/s.Pieco Electronics & Electricals Ltd., Bhosari, Dist.Pune & anr. Respondents Mr.Neel Helekar i/b. Mr.S.M.Dharap for petitioner. Mr.K.S.Bapat for resp.no.1. CORAM: B.H.MARLAPALLE, J. March 18, 2008 ORAL JUDGMENT: 1. This petition arises from the Awards passed by the Labour Court at Pune in Reference (IDA) No.145 of 1988. By the Part II Award dated 20/4/1995 the reference made for demand of reinstatement has been dismissed by the Labour Court. 2. The petitioner came to be appointed as fitter by the respondent no.1 - company in its factory at Bhosri, Pune with effect from 1/10/1975 and was subsequently confirmed on 1/4/1976 i.e. on completion of six months probation period. Whereas the petitioner claims that he joined on 25/8/1975. He was issued a charge-sheet on 3rd June 1983 2 alleging the acts of misconduct committed by him on the same day and by order dated 10/6/1983 he was suspended pending enquiry since the charges levelled against him were of serious nature. As he denied the charges a departmental enquiry was instituted and the enquiry proceedings were held between the period from 21/6/1983 to 21/11/1983. The Enquiry Officer submitted his findings on 18/1/1984 and held the workman guilty of the charges levelled against him. The respondent - company accepted the said report and by way of punishment dismissed the workman from service by order dated 31/1/1984. It appears some more workmen also were dismissed around the same time i.e. last week of January 1984 and all of them had raised industrial dispute challenging the orders of dismissal and prayed for reinstatement with backwages from the date of dismissal. All these disputes came to be referred by a common order passed under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947 ("the Act" for short). Out of the said five workmen whose demand was referred for adjudication, three of them appear to have settled with the employer and, therefore, References were disposed accordingly. Whereas the petitioner and another employee by name Miss R.Korevi, Loni Kalbhor 3 Unit of the respondent no.1 - company continued with the reference and both of them were unsuccessful before the Labour Court. 3. By the Award Part I passed on 18/1/1993 the Labour Court held that the enquiry conducted into the charges levelled against the petitioner was in accordance with the principles of natural justice. In the Award Part II the following two issues were framed by the Labour Court: (1) Whether the charges levelled against the workmen concerned Miss R. Korevi and Shri P.R. Dabholkar have been proved to the satisfaction of the Court by acceptable evidence? (2) Whether the punishment imposed on the workman concerned Miss R. Korevi and Shri P.R. Dabholkar is disproportionate to the misconducts committed and proved? . The first issue has been answered in the affirmative, whereas the second issue has been answered in the negative and in short both the issues 4 have been held in favour of the respondent no.1 - company and against the petitioner - workmen. Consequently the reference was dismissed. 4. Mr.Helekar, the learned counsel for the petitioner submitted that the Labour Court committed a grave error in holding that the enquiry was conducted in keeping with the principles of natural justice, charges were proved and the punishment awarded did not call for any interference. As per the learned counsel the Enquiry Officer hurriedly and hastily conducted the enquiry, did not grant adjournments when the representative of the petitioner was sick and allowed the company’s witnesses to be examined in the absence of the charge-sheeted workman as well as his representative. He stated that within a month’s time the enquiry was rushed through and was concluded on 21/11/1983, the Enquiry Officer did not give a fair and proper opportunity to the charge-sheeted workman to cross-examine the company’s witnesses and examine witnesses in his defence. So far as the acts of misconduct are concerned, the learned counsel for the petitioner submitted that it was a technical misconduct, if at all it could be said so and 5 admittedly the workman was only trying to resume his duties which act could not be termed as insubordination or disorderly behaviour or dishonesty in connection with the employer’s business. Such an act also could not be termed as an act of subversive of discipline and good behaviour on the establishment of the employer. Lastly it was submitted that even if it is presumed that the charges were proved against the petitioner, the misconduct was not so serious as to warrant the capital punishment of dismissal from service. As before the Labour Court, he placed reliance on the following decisions of the Supreme Court, (1) The Workmen of M/s. Firestone Tyre & Rubber Co. of India Pvt. Ltd. Vs. The Management & ors. [AIR 1973 SC 1227] [AIR 1973 SC 1227] [AIR 1973 SC 1227] (2) Management of Hindustan Machine Tools Ltd., Bangalore Vs. Mohd. Usman & anr. [(1984) [(1984) [(1984) 1 SCC 152] 1 SCC 152] 1 SCC 152] (3) Pyare Lal Sharma v. Managing Director, J. & K. Industries Ltd. [AIR 1989 SC 1854] [AIR 1989 SC 1854] [AIR 1989 SC 1854] 6 (4) Rama Kant Misra Vs. State of Uttar Pradesh and ors. [(1982) 3 SCC 346] [(1982) 3 SCC 346] [(1982) 3 SCC 346] (5) Palghat BPL & PSP Thozhilali Union Vs. BPL India Ltd. & anr. [(1995) 6 SCC 237] [(1995) 6 SCC 237] [(1995) 6 SCC 237] 5. Mr.Bapat, the learned counsel for the respondent - company, on the other hand, supported both the Awards passed by the Labour Court and urged that the Labour Court was fully justified in dismissing the reference. As per Mr.Bapat, once the Labour Court held that the enquiry was conducted in keeping with the principles of natural justice and the charges levelled against the workmen were proved, it was not permissible for the Labour Court even under Section 11A of the Act to cause interference with the dismissal order which is purely a managerial prerogative. Even otherwise, as per Mr.Bapat, the charges proved were of serious nature and, therefore, the punishment awarded of dismissal from service could not be termed as grossly disproportionate. Once the Labour Court refused to interfere with the order of punishment or to mould punishment and grant some other relief under Section 11A of the I.D. Act, it was not permissible for this Court while 7 exercising the powers of judicial review under Articles 226 / 227 of the Constitution to set aside the award passed by the Labour Court and substitute the punishment awarded by the Labour Court. In support of his contention Mr.Bapat has relied upon the following two recent judgments of the Supreme Court: (1) J.K. Synthetics Ltd. Vs. K.P. Agrawal & anr. [(2007) 2 SCC 433] [(2007) 2 SCC 433] [(2007) 2 SCC 433] (2) Coimbatore District Central Co-operative Bank Vs. Coimbatore District Central Cooperative Bank Employees Association & anr. [(2007) [(2007) [(2007) 4 4 4 SCC 669] SCC 669] SCC 669] . Mr.Bapat has also pointed out that the respondent no.1 - company does not run the factory at Bhosri any more and as per him in April 2005 the production was stopped and subsequently the said establishment has been sold and, therefore, there is no question of considering the relief of reinstatement at this stage. 6. With the assistance of both the learned 8 counsel I have gone through the enquiry proceedings which were conducted and written in Marathi, the Enquiry Officer’s report and the explanation furnished by the petitioner - employee in reply to the charge-sheet. The charges as set out in the charge-sheet originated from the incident that had taken place on 3/6/1983. Mr.K.R.Bora, Group In-charge for the Workshop, Paintshop, Mechanisation and Sub-Assembly Departments was on duty in the first shift which commenced at 8.15 a.m. and was to end at 5.30 p.m. The petitioner reported late and, therefore, Mr.Bora asked him as to who allowed him to enter the factory. The petitioner replied that he had informed the security staff and entered in the register his late coming but if he was not allowed to report for duty, he would go out. The petitioner was informed that he would not be allowed to report to duty and, therefore, he went out of the section. At about 2.30 p.m. the petitioner again went to Mr.Bora along with Mr.Podwal, Section Supervisor and Mr.Bora reiterated that the petitioner would not be allowed to report for duty and he should report on the next day in time. However, at about 3.30 p.m. Mr.Sane, the Section Foreman informed Mr.Bora that the petitioner was seen in the section and he had resumed 9 duty. He, therefore, went to the petitioner and questioned him as to how he re-entered the department and the petitioner replied that he had punched the card and reported for duty. Mr.Bora went to the Personnel Department and enquired with Mr.Kapse as to how the petitioner was allowed to punch the card and he was informed that the petitioner had submitted the attendance regularisation form duly signed by the department / section head. Mr.Bora was shown the said form and as per him it was not signed by any officer from his department. He came back to the petitioner and asked him the name of the officer who had signed the said form and the petitioner could not tell the name of such an officer. In short on 3/6/1983 the petitioner had reported late for work, he was not allowed to resume the work despite his repeated requests and he manipulated the attendance regularisation form and by misrepresenting the personnel department, punched the attendance card and resumed his duty after 3 p.m., when the shift was to get over at 5.30 p.m. 7. The enquiry proceedings do indicate that the petitioner was allowed to be represented by his defence representative Shri V.B.Gole, who was named 10 by him to defend him and he appeared for the first time in the enquiry proceedings on 24/8/1983, though the enquiry had commenced on 21/6/1983, and on 14/6/1983 it was adjourned at the request of the petitioner. Some preliminary objections regarding the competence of Mr.Patnaik to issue the charge-sheet or to institute departmental enquiry or to nominate the management’s representative have been elaborately dealt with by the Enquiry Officer and dismissed. The first witness of the company Shri Bora was present before the Enquiry Officer on 8/10/1983 and the petitioner’s defence representative was absent on that day. For his cross-examination the defence representative could not remain present despite couple of adjournments having been granted by the Enquiry Officer. The petitioner every time went on say that his representative was not well and could not say as to when he would be available. The proceedings recorded on 15/10/1983 clearly indicated that the petitioner was informed by the Enquiry Officer that by way of last chance his request for adjournment was granted and if his representative still remained absent, subsequently the enquiry would proceed and it would be open for the petitioner to cross examine the company’s witness, if he so 11 desired. The proceedings thus clearly indicate that sufficient opportunity was granted to the petitioner to cross-examine the company’s witness and to adduce his own evidence and he could not make use of these opportunities for the reasons attributable to him. The Enquiry Officer was not rigid or did not act mechanically in refusing adjournments and in a way he has tried to be flexible and considered the reasonable requests. I have no doubt that the learned Judge of the Labour Court was right in holding that the enquiry was conducted in keeping with the principles of natural justice. 8. So far as the charges are concerned, the first witness Mr.Bora was examined before the Enquiry Officer when the petitioner was present all along and despite three adjournments having been granted, the petitioner’s defence representative did not remain present to cross-examine Mr.Bora and the petitioner refused to cross-examine the said witness without the assistance of his representative. The testimony of Mr.Bora has been supported by Mr.Sane and Mr.Jhusiwala, the other two witnesses examined before the Enquiry Officer. It is clear and it is not disputed that on 3/6/1983 the petitioner reported to 12 duty late, he was not allowed by Mr.Bora to report to duty and when the petitioner approached him again at 2.35 p.m., he was told to leave the factory premises and report on the next day in time. At about 3.30 p.m. he was seen working in the section and Mr.Bora had asked him as to how he had entered the section. Mr.Bora had gone to the personnel department and was informed that attendance regularisation form was submitted by the petitioner under the signature of someone who was not an officer from Mr.Bora’s department and the petitioner could not disclose the name of the officer who had singed the said form. No doubt the respondent - company could not bring anything to show that the petitioner’s record of service prior to June 1983 was undesirable or that he was punished for either minor or major misconduct. As per the Labour Court the charge of insubordination and disobedience of the orders of the superior was serious in nature. The petitioner had managed to submit the attendance regularisation form which was not signed by any officer from his department and he could not disclose the name of the person who had signed it. This was certainly an act of dishonesty and subversive of good behaviour on the premises. When he was told to leave the factory premises and 13 report on the next day, he not only flouted these instructions, but resorted to manipulations and, therefore, though this was a single instance, the Labour Court took a view that the punishment imposed in the peculiar facts of the case was proper and justified. In the case of Coimbatore District Central Cooperative Bank (Supra) in paras 29 and 30 Their Lordships stated thus: "29. From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on "no evidence" or is perverse, or is such that no reasonable man in the circumstances of the case would have reached such finding. In the present case, four charges had been 14 levelled against the workmen. An inquiry was instituted and findings recorded that all the four charges were proved. The Labour Court considered the grievances of the workmen, negatived all the contentions raised by them, held the inquiry to be in consonance with principles of natural justice and findings supported by evidence. Keeping in view the charges proved, the Labour Court, in our opinion, rightly held that the punishment imposed on workmen could not be said to be harsh so as to interfere with it. 30. In our opinion, therefore, the High Court was not right in exercising power of judicial review under Articles 226/227 of the Constitution and virtually substituting its own judgment for the judgment of the Management and/or of the Labour Court. To us, the learned counsel for the appellant Bank is also right in submitting that apart from Charges 1 and 2, Charges 3 and 4 were "extremely serious" in nature and could not have been underestimated or underrated by the High Court." 15 . In the cases of Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate [(2005) 2 SCC 489] [(2005) 2 SCC 489] [(2005) 2 SCC 489], M.P. Electricity Board v. Jagdish Chandra Sharma [(2005) [(2005) [(2005) 3 SCC 401] SCC 401] SCC 401], Regional Manager, Rajasthan SRTC v. Ghanshyam Sharma [(2002) 10 SCC 330] [(2002) 10 SCC 330] [(2002) 10 SCC 330], the Supreme Court held that the power under Section 11A of the I.D. Act or under similar provisions cannot be used to interfere with the quantum of punishment, on irrational or extraneous factors, or on compassionate grounds and that though Section 11A gives the jurisdiction and power to the Labour Court to interfere with the quantum of punishment, the discretion has to be used judiciously and not capriciously. The Supreme Court observed that harsh punishment wholly disproportionate to the charge should be the criterion for interference. In the case of Hombe Gowda Educational Trust v. State of Karnataka [(2006) [(2006) [(2006) 1 SCC 430] 1 SCC 430] 1 SCC 430], the Supreme Court while emphasising the need to give importance to discipline at the workplace stated thus, "30. This Court has come a long way from its earlier viewpoints. The recent trend in the decisions of this Court seeks to strike a 16 balance between the earlier approach to the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed how discipline at the workplace / industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity." . The authorities cited by Mr.Helekar were also considered by the learned Judge of the Labour Court while recording his satisfaction that the punishment of dismissal was not shockingly disproportionate. There is one more important change as of now viz. the factory where the petitioner was working does not exist and it has been sold to some other party. When the order of dismissal was passed, he had put in about eight to ten years of service. It is also pertinent to note that the petitioner in his oral depositions before the Labour Court did not state the steps he had taken to seek an alternative employment. Merely stating that he remained unemployed, is not 17 sufficient to hold that he could not be employed despite the efforts put in by him, more so when the petitioner was a skilled technician. Having regards to the views taken by the Apex Court during the recent past, I am satisfied that no interference is called for in the view taken by the Labour Court while exercising the power of judicial review under Articles 226/227 of the Constitution. 9. Hence this petition fails and the same is hereby dismissed. Rule discharged with no order as to costs. (B.H.MARL