1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.270 OF 2003 WITH CIVIL APPLICATION NO.2765 OF 2007 Ramesh G. Durve and another .. Petitioners. Vs. Godrej & Boyce Mfg. Co. Ltd. and others .. Respondents. .... Mr. R.S. Pai with Ms. Pallavi Dedhia i/b M/s. Sanjay Udeshi & Co. for the Petitioners. Mr. J.P. Cama, Senior Advocate with Ms. Sanika Deshpande i/b M/s. Haresh Mehta & Co. for Respondent No.1. .... CORAM: DR. D.Y. CHANDRACHUD, J. 29th April, 2008. ORAL JUDGMENT: 1. Both the Petitioners were employed as Typewriter Service Mechanics in the Service Department of the First Respondent at Lalbaug, Mumbai. The orders under which the Petitioners were appointed inter alia contained a stipulation that the workmen could be called upon to work at any other establishment of the management. In April 1994 the Petitioners were transferred from the Lalbaug unit to the Vikhroli unit. Between December 1994 and March 1995 several letters were issued by the management to 2 the Petitioners inter alia informing them that they were not fulfilling the required norms of production. Eventually on 1st March, 1995 letters were addressed to the Petitioners setting out that they have attained a poor level of performance in terms of the output generated, since April 1994 and that the production levels achieved by the workers were far below the optimal production level. The two workmen were informed that despite a cautionary letter addressed on 27th December, 1994, no explanation had been received as to why their performances have been low, nor was there any significant improvement in output levels. The workmen were informed that if their performance did not improve, the company would be compelled to terminate their services. Eventually on 3rd April, 1995 termination letters were issued to the workmen adverting to the earlier letter dated 1st March, 1995 and stating that despite “continuous counseling efforts”, the two workmen have failed to achieve the normal optimal performance which was being rendered by most of the other employees in the department. At the same time, the management stated that should the workmen agree to achieve the normal optimum output by stating so in writing on or before 10th April, 1995, the employer would be willing to reconsider and reverse its decision subject to 3 the workmen consistently achieving the required production norms. 1A. A complaint of unfair labour practices was instituted by the Association of Engineering workers under items 1(a), (b), (d), (f) and (g) of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Since no disciplinary enquiry had been held by the employer, the Labour Court, upon a plea being made to that effect, permitted the employer to lead evidence to sustain the charge of misconduct on the basis of which the termination had taken place. Accordingly, the misconduct was sought to be justified by the management through the evidence of Mr. Kashiram Shridhar Sawant who was duly cross examined. The workmen stepped into the witness box in support of their defence. The case of the management was that as a result of the general decline in the demand for manual typewriters, the management had to transfer employees who were engaged in the typewriter service department at Lalbaug to the manufacturing unit at Vikhroli. Initially on 1st March, 1994 five employees were transferred following which a further batch of seven employees came to be transferred in March 1994 including the Petitioners. The workmen who belonged to D 4 Grade were, depending upon the availability of work, placed in C Grade by protecting their earlier salary and service conditions. The Petitioners initially did not report for work following which a letter was addressed on 28th March, 1994 directing them to report for duty at the plant at Vikhroli. After several letters addressed by the management cautioning the workers of the action and the consequences that would result, the workmen eventually reported at the unit to which they were transferred. The case of the management was that both the Petitioners were Typewriter Service Mechanics and were fully conversant with the mechanism of the manual typewriter. The Second Petitioner was assigned to duty at Stage No.14 on the assembly line while the First Petitioner was assigned to Stage Nos. 15, 16 and 17. The witness of the management deposed that the work which the two workmen were assigned was of a semi skilled nature with which they were familiar, having performed earlier the work of servicing typewriters. 2. The evidence before the Industrial Court was that the production norms were laid down in a settlement dated 7th December 1992. After the settlement at Exhibit C-18 the other 5 employees were assembling 41 typewriters per man per shift equivalent to 100% of the optimum norm. As against this, the Second Petitioner, when he commenced working on Stage No.14 had an output of 20% in April 1984 which went upto 52% from August 1994 to March 1995. Insofar as the First Petitioner is concerned, his output had reached only upto 64% of the required production norms by March 1995. During the course of the evidence, the management deposed that several cautionary letters were addressed to the workmen viz. on 6th December, 1994, 21st December, 1994 and 1st March, 1995 calling upon the workmen to improve their performance and to achieve the required norms. The workmen having failed to do so the management eventually terminated their services by a letter dated 3rd April, 1995 but while doing so, the management once again stated that should the workers agree to achieve the required production norms in writing, the decision to terminate would be reversed. The evidence of the management was to the effect that the production of the two workmen was the lowest amongst all the workmen who were assigned the same stages on the assembly line. It also came in evidence that among the other workers even a physically challenged worker was giving 100 % production, while temporary 6 workers at the same stage had been able to achieve almost 93% output in just 28 days whereas the First Petitioner had even after the lapse of 8 or 9 months not achieved more than 60 to 64% of the required performance. 3. On the basis of the material evidence on the record, the Labour Court held that : (1) Though no disciplinary enquiry had been held by the employer prior to the order of termination, the employer had been permitted to lead evidence in support of the charge of misconduct in pursuance of a request made to the Tribunal to that effect; (2) The letter of termination dated 3rd April, 1995 referred to the earlier letter dated 1st March, 1995 and the workmen were on notice of the charge that despite being counseled by the management they had failed to achieve the requisite norms of production; (3) The charge of misconduct was sustainable on the basis of the evidence on the record; (4) The evidence showed that the nature of the work which 7 was assigned to the workmen upon their transfer to the Vikhroli establishment was not new; both the workmen were Typewriter Service Mechanics who had been assigned similar nature of work; (5) Other workmen who were transferred from the service center to the manufacturing unit had achieved a much higher level of production; (6) The norms of production were laid down by the settlement of 7th December, 1992 and the workers had in fact received the benefit of the settlement; (7) The production of the First Petitioner was 36% lower than the optimum whereas the production level of the Second Petitioner was 48% below the optimum prescribed; (8) There was no discrimination practised by the management as between the two workmen on the one hand and the other workmen; (9) Despite several cautionary letters, the workmen had 8 failed to fulfill the required production norms and the real reason for their not doing so was the grievance that the management had required the workmen to achieve the increased output under the settlement without giving them additional compensation; (10) Both in the letter of termination as well as during the pendency of the proceedings before the Tribunal the management had offered to reconsider its decision and to reinstate the workmen subject to their agreeing to fulfill the required production norms inspite of which the workmen had failed to accept the offer. It is only when an affidavit was filed by the Second Petitioner that he stated that he and the other workers were ready and willing to give full production which only went to establish that they had deliberately given a low output in the past. 4. The Labour Court held that the misconduct which was established against the two workmen was of a serious nature and having been proved on the basis of the evidence adduced, the termination from service would not be regarded as disproportionate. 9 5. The order of the Labour Court was carried in revision and was affirmed by the Industrial Court on 21st September, 2002. Four submissions have been urged on behalf of the Petitioner in assailing the correctness of the order passed by the Labour Court and as affirmed in revision by the Industrial Court. Firstly, it was urged that an enquiry is mandated by the principles of natural justice and it is necessary that a charge-sheet be issued to the workmen where there is an allegation of misconduct. In the absence of a charge-sheet and an enquiry, a termination for misconduct would be invalid and the workers would be entitled to reinstatement. Secondly, in the present case, no exceptional circumstances were made out by the management for dispensing with the enquiry. Thirdly, the action of termination was an act of victimization on the part of the management and fourthly, there was no evidence of a willful or deliberate go slow on the part of the workmen. 6. The first two submissions may be taken up initially. Now it is a well settled principle of law that where no disciplinary enquiry has been held by the employer or in a situation where the enquiry is found to be defective, it is open to the employer to seek an 10 opportunity to adduce evidence before the Tribunal in support of the allegation of misconduct. A case where no enquiry is held stands on the same footing as a case where the enquiry is found to be defective. In the event that the employer seeks to avail of the opportunity to lead evidence he must make a request to that effect at the appropriate stage and avail of the opportunity to sustain the charge of misconduct by leading evidence. (Firestone Tyre & Rubber Co. of India P. Ltd. v. The management1). In Sasa Musa Sugar Works V. Shobrati Khan2 the management had been permitted to lead evidence in support of a charge of go slow even though no charge-sheet had been issued to the workmen. The submission which was urged on behalf of the Petitioners was to the effect that the principles of natural justice mandate that a disciplinary enquiry be held in compliance with the principles of natural justice and absent such an enquiry, the termination must be held to be invalid. The principle that a termination on the ground of misconduct must be consistent with the principles of natural justice cannot be disputed. The point, however, is that in a situation where no enquiry has been held by the employer, the law contemplates that the employer can still seek an opportunity to 1 AIR 1970 SC 1227. 2 1958 II LLJ 288. 11 sustain the misconduct by leading evidence before the Tribunal. The requirement of natural justice then is complied with by the opportunity which is granted to the employer and for that matter to the workmen, to establish or as the case may be, defend the charge of misconduct. In the present case, the workmen were clearly on notice by the several cautionary letters that were addressed by the management of the nature of the allegation against them. The letter of termination in fact refers to the earlier letter dated 1st March, 1995 under which the consistent failure of the workmen to achieve the required production norms was adverted to. In these circumstances, the Tribunal cannot be faulted for having accepted the request of the employer for permission to lead evidence in support of the charge of misconduct. It has not been disputed that both the workmen as well as the management were allowed a full opportunity consistent with the principles of natural justice to lead evidence and it is on the basis of the evidence adduced before the Labour Court that it has been held that the finding of misconduct stood established. There is therefore no merit in the first two submissions relating to the dispensing of the enquiry. 12 7. The charge that the action of the management was motivated by the desire to victimize the workmen cannot be accepted. First and foremost it is a well settled principle of law that clear and cogent evidence has to be adduced in support of a plea of victimization. Secondly, on the basis of the evidence on the record it has emerged before the Court that the transfer of the two workmen from the service unit at Lalbaug to the manufacturing unit at Vikhroli was in pursuance of a condition contained in the letter of appointment. The management explained that as a result of a reduction in the demand for manual typewriters the strength at the service unit was gradually phased out by transferring workmen progressively to the manufacturing unit. The two workmen to whom the proceedings relate were not the only workmen transferred. The allegation that there was victimization cannot stand in the face of the evidence that even in the letter of termination dated 3rd April, 1995 the management indicated to the workmen that despite their failure to achieve the required production norms it was willing to reverse the decision to terminate their services provided that the workmen agreed to meet the required norms in writing. Even during the pendency of the proceedings before the Tribunal such an offer was made which 13 was not accepted. The charge of victimization must therefore fail. The final submission which has been urged is that there is no evidence of willful or deliberate go slow. The Labour Court arrived at a finding of fact to the effect that it could not be accepted that these two workmen could not have given normal production even after their having been given several cautionary letters from 6th December, 1994, after a period of almost 8 or 9 months. The Labour Court observed that the real reason for their giving a low out put could be gathered from a joint representation signed by Typewriter Service Mechanics whose grievance was that the workmen working in the assembly department had increased their production against the grant of increments, but the management was pressurizing these workmen to give an increased output without compensation. The two workmen were also signatories to the representation. The circumstances of the case show that the two Petitioners had consistently failed to maintain the required norms of production in terms of the industrial settlement. This was coupled with the fact that other similarly placed workers including even temporary workmen were in a position to achieve the output norms. The workmen refused the offer of the management as contained in the letter of termination to furnish a written 14 acknowledgment that they would in future abide by the output norms upon which the management was to withdraw the termination. The same refusal of the two workmen continued even during the pendency of the proceedings. It is only thereafter when an affidavit was filed that a belated statement was made that the workers were willing to give full production if they were allowed to report for work. The Labour Court noted that this only established the falsity of the stand taken by the complainant union that the workmen were giving the maximum possible production. The finding that there was a willful and deliberate attempt on the part of the workmen not to achieve the desired production norm is substantiated by the material evidence on the record. From the evidence it emerged that this was not merely a case where the workmen had failed to achieve production norms but that there were circumstances to indicate that the failure to do so was a part of a concerted and deliberate effort on the part of the workmen. For all these reasons, it is not possible to accede to the submissions urged in support of the challenge to the order of the Labour Court which has been confirmed in revision. There is no merit in the Petition which shall accordingly stand dismissed. Rule discharged. 15 There shall be no order as to costs. In view of the dismissal of the writ petition, Civil Application 2765 OF 2007 does not survive and is disposed of. *****