IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. WRIT PETITION NO. 346 OF 2010 A. N. Bhoir …. Petitioner V/s. The TATA Power Company Ltd. …. Respondent WRIT PETITION NO. 347 OF 2010 Kishor Salvi … . Petitioner V/s. The TATA Power Company Ltd. …. Respondent WRIT PETITION NO. 348 OF 2010 S. M. Harke …. Petitioner V/s. The TATA Power Company Ltd .…. Respondent WRIT PETITION (L)NO. 2517 OF 2010 S. R. Gharat …. Petitioner V/s. The TATA Power Company Ltd. …. Respondent Ms. Rita K. Joshi for the Petitioners Mr. K. M. Naik with Mr. S. P. Salkar for the Respondents ….. CORAM : S. J. KATHAWALLA, J. DATE : 19TH APRIL 2010. 1 1 Oral Judgment: 1. This batch of Writ Petitions before the Court raises a similar issue and has been heard together. The Learned Advocates for the parties state that the facts relating to all the cases are similar. 2. Rule. With the consent of the Advocates, the Petitions are taken up for final hearing. Learned Advocate for the Respondent waives service. 3. The Learned Advocate appearing for the Petitioner workmen has informed the Court that the Petitioner workmen are restricting the challenge in the present Writ Petitions only to the extent of impugning the orders dated 23rd June 2006 passed by the Second Labour Court Mumbai holding that the departmental inquiry conducted against the Petitioner workmen was fair and proper and the findings not perverse. The Learned Advocate has further informed the Court that the action taken by the Respondents of dismissing the Petitioner workmen from the employment of the Respondent has been upheld by Judgment of this Court, (Coram : Dr. D. Y. Chandrachud J.) in Writ Petition Nos. 1996 to 1999 of 2009 dated 9th November 2009 from which Judgment an Appeal has been preferred before the Hon’ble Division Bench. 2 2 4. The Petitioner workmen were employed as Senior Security Guards in the Security Department at the Trombay Thermal Power Station. The Respondent supplies electricity to vital installations in the city of Mumbai including the Railways, Air Force, Hospitals, BARC, Oil Refineries and Defence establishments. The Petitioner workmen were on duty on 31st December 1999 in the general shift from 0700 hours to 1630 hours. The workman in Writ Petition No.347 of 2010, Kishor Salvi was on privilege leave from 21st December 1999 to 31st December 1999 and on the date of the incident had admittedly entered the premises of the Respondent. At about 1350 hours all the Petitioner workmen along with the three other workmen were found to have consumed liquour in the Security Guards locker room near the main gate of the Power House at the Trombay Thermal Power Station. Of the three other workmen one was a driver and the other two were operators. On the same day amongst others the Petitioner workmen admitted their guilt in writing. The Petitioner workmen were also sent for medical examination. The medical report confirmed that the breath of the Petitioner workmen smelt strongly of alcohol, their eyes were red and there was tremor in hand. The Petitioner workmen were suspended from service on the same day. The Respondent issued Charge Sheets dated 6th January 2000 to the Petitioner workmen. On 10th January 2000 the 3 3 Petitioner workmen responsed to the Charge Sheets by addressing letters to the Respondent wherein they admitted that they were found consuming liquor along with other security guards. 5. In the departmental inquiry the Petitioner workmen admitted the incident of 31/12/1999 as also the medical report. Though the Petitioner workmen were given full opportunity to cross-examine the management representative and the witness the Petitioner workmen declined to do so. The inquiry was closed on the same day before the Inquiry Officer and he submitted his reports holding the Petitioner workmen guilty of misconduct. The Management by its letters addressed to the Petitioner workmen enclosed a copy of the Inquiry Officer’s Report dated 20th January 2000 regarding the inquiry held against the Petitioner workmen and asked for explanation, if any, within three days of receipt of the letter. The Petitioner workmen submitted their representation to the report of the inquiry officer on 20th May 2000, wherein for the first time they contended that there was an understanding between the management and the union officials wherein it was decided not to impose any punishment such as dismissal against the Petitioner workmen. The Petitioner workmen did not defend the inquiry instituted against them in view of this alleged understanding between the 4 4 management and the union officials. The management thereafter dismissed the Petitioner workmen from the service on and from 20th May 2000. 6. The Petitioner workmen thereafter filed Applications (before the Second Labour Court, Mumbai under sections 78 and 79 of the BIR Act. In the said Applications issues were framed, whether the inquiry was fair and proper and whether the findings are perverse. Though other issues were also framed, the Advocate for the Petitioner workmen as well as the Respondent submitted that only the said two issues be decided as preliminary issues. The Petitioner workmen examined themselves and also examined Shri Ramchandra B. Jadhav, Secretary of the Union to prove the alleged understanding between the management and the union. The management examined the Inquiry Officer Mr. Sudhir Kharkanis. The Labour Court after appreciating the evidence and the documents submitted by the parties, by its detailed Judgment (Part I) dated 23rd June 2006 declared the inquiry as fair and proper and the findings not perverse. As far as the Part II award is concerned as set out herein above the same was the subject matter in Writ Petition Nos.1996 to 1999 of 2009 which were disposed of by a common order of this Court dated 9th November 2009 confirming the action of dismissal of the Petitioner workmen by the Respondent. It is submitted by 5 5 the Learned Advocate appearing for the Petitioner workmen that since she was unwell as also later hospitalized she could not file and move the above Writ Petitions impugning the judgment (Part I) dated 23-6-2006, and for this reason the Writ Petitions challenging the Part I award has now come up on board. 7. The first and the main submission raised before this Court by the Learned Advocate appearing for the Petitioner workmen is that there was an understanding between the management and the officials of the union not to impose any punishment such as dismissal against the Petitioner workmen. It is submitted that the Petitioner workmen would not have admitted their guilt but for such understanding between the management and the union officials. It is submitted that it is for this reason that during the inquiry proceedings too the Petitioner workmen admitted their guilt and did not cross-examine the management witness. It is submitted that the Labour Court ought to have directed the management to reopen the inquiry and allow the Petitioner to cross-examine the witness of the management. 8. This Court at the outset enquired with the Learned Advocate for the Petitioner workmen whether the Advocate is trying to submit that the 6 6 Petitioner workmen have admitted their guilt only at the instance of the management and that in fact the Petitioner workmen had in fact not consumed any alcohol whilst on duty in the premises of the Respondent. The Learned Advocate has clarified that by the above submission the Petitioner workmen are not trying to retract the admissions made by them as regards their guilt but are only submitting that the same was admitted only because of the alleged understanding. The submission pertaining to the alleged understanding is dealt with in detail by the Labour Court in its Judgment dated 23rd June 2006. The Petitioner workmen have on the day of the incident i.e. 31st December 1999 admitted their guilt. They have admitted the medical certificate. The have not made any mention of the alleged understanding in their response dated 10th February 2000 to the charge sheet wherein they have once again admitted their guilt. The Petitioner workmen or their representative have not made a whisper about the alleged understanding during the inquiry proceedings. It is only after the second show cause notice was issued to the Petitioner workmen after the inquiry proceedings were concluded that the Petitioner workmen for the first time by their letters dated 20th May 2000 alleged that there was such an understanding between the management and the union officials. Interestingly, though Mr. Jadhav the Secretary of the Union filed his 7 7 affidavit in lieu of his examination-in-chief wherein he has made a mention of the alleged understanding in his evidence but is completely silent on the issue as to when and where the understanding was actually arrived at and who were the persons present and/or parties to the alleged understanding. In fact in his cross-examination Mr. Jadhav has admitted that before the inquiry officer he did not make any statement that there was an understanding between the management and the union officials. He did not object to the medical report. He did not produce any documentary evidence to show that there was an understanding between the management and the union officials. Suggestion was given to the witness to give the names of the officials/persons before whom the alleged understanding took place but he failed to give the names of those persons. Based on these facts as well as evidence, the Labour Court correctly came to the conclusion that it is clear that there is no understanding between the management and union officials. 9. This Court pointed out to the Learned Advocate appearing for the Petitioner workmen that in Paragraph 3 (ii) and (iii) of the Petitions it is the case of the Petitioner workmen that the alleged negotiations/understanding took place after the charge sheet dated 6th January 2000 was issued to the Petitioner workmen. The Petitioner workmen have therefore throughout 8 8 contended that they admitted their gult on 10th January 2000 only because of the alleged understanding. Thereupon this Court pointed out to the Advocate for the Petitioner workmen that the Petitioner workmen first admitted their guilt on 31st December 1999 i.e. on the date of the incident. Admittedly there was no understanding on that day and therefore the contention of the Petitioner workmen that they admitted their guilt on 10th January 2000 pursuant to the alleged understanding between the management and the union on or after 6th January 2000, is patently false. The Learned Advocate appearing for the Petitioner workmen fairly conceded that she has no answer to this observation of the court. Thus I see no substance in the submission advanced on behalf of the Petitioner workmen that there was an oral understanding between the management and the officials of the union as alleged. The Labour Court is correct in its finding that not only there was no such understanding as alleged but full opportunity was given to the Petitioner workmen and their representative in the course of the inquiry to cross-examine the management witness. However, the Petitioner workmen and their representative admitted the misconduct on the part of the Petitioner and also admitted the medical report produced by the management and declined to cross examine the witness of the management. The question therefore of directing the company to reopen the inquiry and allow the 9 9 Petitioner workmen to cross examine the management witness does not arise. The Inquiry Officer has appeared as the management witness before the Labour Court and has set out all the steps that he took and the opportunities given by him to the Petitioner workmen and his representative for conducting a fair inquiry resulting in the Labour Court coming to the conclusion that the inquiry proceedings were fair and findings not perverse. 10. It is next submitted on behalf of the Petitioner workmen that the inquiry proceedings were concluded on the same day within one and half hours. It is submitted that in view of the alleged understanding the inquiry was only a farce. As already held by the Labour Court in its order dated 23-6-2006 and confirmed by this court hereinabove there was no understanding as alleged. The Petitioner workmen right from the day of the incident have admitted their guilt/misconduct in writing. Before the inquiry officer the Petitioner once again admitted the misconduct on their part as well as the medical certificate and declined to examine the management witness. In view thereof there can be no complaint on the part of the Petitioner workmen as regards the inquiry getting over within one and half hours. In fact in view of the clear cut admission of the Petitioner workmen in my view there was no need for an inquiry to be conducted. However, 10 10 the management by way of abundant caution did carry out a full fledged inquiry giving the necessary opportunity to the Petitioner workmen to advance their case. 11. It is next contended by the Learned Advocate appearing for the Petitioner that the Labour Court has not appreciated the fact that the three employees namely two operators and one driver who were also admittedly guilty of misconduct were given lesser punishment pursuant to an understanding between the management and the union. In my view only because the punishment given to three of the workmen was a lesser punishment than the one given to the Petitioner workmen, the Petitioner workmen are not entitled to claim the benefit of the same treatment. The Petitioner workmen who are dismissed for the admitted misconduct were senior security guards who were entrusted with the duty of protecting very sensitive installations. The management is completely justified in taking a strict view in regard to the conduct of the Petitioner workmen in question who were entrusted with the duty of guarding the power plants. 12. In view thereof the decision of the Second Labour Court dated 23rd June 2006 holding the inquiry to be fair and the finding not perverse 11 11 cannot be faulted in any respect whatsoever. Accordingly rule is discharged and the above Writ Petitions are dismissed. ( S. J. KATHAWALLA, J.) 12 12