-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO.2434 OF 1996 Maharashtra General Kamgar ] Union, ] 252, Janata Colony, ] R.N.Narkar Marg, ] Ghatkoper (East), ] Bombay-400007 ]...Petitioner Versus 1. M/s. Chloride India Ltd. ] D/2 M.I.D.C. Industrial ] Estate, Chinchwad (East) ] Pune-411019 ] ] 2. Presiding Officer, ] First Labour Court,Pune, ] (Having his office at ] PMP Bldg., First floor ] Swargate, Pune-411042 ]..Respondents .... Shri.M.S.Topkar i/b Shri.Kiran Bapat and Shri.Nitin A.Kulkarni for Petitioner. Shri.P.H.Purav with Shri.V.P.Savant and Ms.A.P.Purav for Respondent No.1. .... CORAM : B.H.MARLAPALLE,J. CORAM : B.H.MARLAPALLE,J. CORAM : B.H.MARLAPALLE,J. DATE : FEBRUARY 2/3/4, 2005 DATE : FEBRUARY 2/3/4, 2005 DATE : FEBRUARY 2/3/4, 2005 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Being aggrieved by the Award dated 8th April, 1994 (Part-I) and Award dated 7th April, 1995 (Part-II) in Reference (IDA) No.45 of 1989 passed by the Ist Labour Court at Pune, the petitioner which is a registered Trade Union under the Trade Unions Act, -2- 1956, has filed this petition. By the Part-II Award dated 7th April, 1995, the reference made to the Labour Court for the reinstatement of Shri.A.R.Chavan and activist of the said Union came to be dismissed. 2. The workman Shri.Chavan was the member of the petitioner-Union and was also one of the office bearers for sometime. He was working as Job Inspector under respondent no.1. The Management had signed the settlement on 24th July, 1980 with another Trade Union by name Sarvashramik Sanghatana and the said settlement was to remain in force upto 5th February, 1984. However, the petitioner-Union claiming to have formed the majority amongst the workmen of respondent-Management, submitted a charter of demand on 16th January, 1984 for revision of wages and service conditions anticipating expiry of earlier settlement on 5th February, 1984. Some negotiations were held between the parties but without any positive results and consequently, it appears that from 6th April, 1984 onwards, the atmosphere in the factory did not remain normal. The Management alleged that the petitioner-Union through its activists-office bearers had resorted to coercive actions which resulted in loss of production, indiscipline in the factory premises and acts of threats/intimidation against the supervisory as well -3- as managerial staff. The Management therefore, approached the Industrial Court at Pune in Complaint (ULP) No. 138 of 1984 against the Union and also sought some interim orders. The Industrial Court was pleased to pass an interim injunction order on 18th April 1984 and the Managment had put up a notice for the information of all the workmen to comply with the said order. However, there was no response from the workmen and the Union and therefore, it suspended the factory operations temporarily. It issued a notice of lock-out under the provisions of the MRTU and PULP Act, 1971 on 27th April, 1984 and also demanded a written undertaking from each of the workmen showing their willingness to join the factory and to maintain discipline while on work, before they entered the factory premises. The workmen chose not to furnish these undertakings and therefore, they remained away from their duties. Finally lock out proposed vide notice dated 27th April, 1984 commenced from 27th May, 1984. It was lifted on 1st July, 1984 but the petitioner-Union served a notice of strike on 1st September, 1984 which continued for few months. While the strike continued, the employees of the respondent-Management formed another Union by name Chloride Kamgar Sanghatana which came to be registered on or about 12th February, 1985 and it submitted a joint letter dated 2nd March, 1985 signed -4- by about 267 workmen (out of 440) that they had resigned from the present petitioner-Union and requested the Management to negotiate with the newly formed Union. The new Union submitted the charter of demand on 4th March, 1985 and with the intervention of the Deputy Commissioner of Labour at Pune, finally settlement came to be signed between the parties on 15th March, 1985. The strike pursuant to the notice dated 1st September, 1984 came to be withdrawn on 14th March, 1985. 3. On the backdrop of these industrial relations prevailing in the factory premises, Shri.Chavan came to be issued with two chargesheets-- (I) on 30th September, 1984 and (II) on 16th July, 1985. He claimed that the first charge-sheet was not served on him at any time, whereas admittedly the second charge-sheet was received by him on 17th July, 1985 and by the said second charge sheet, he was also placed under suspension. The domestic enquiry in respect of the first charge sheet proceeded exparte whereas he had fully participated in the domestic enquiry in respect of the second charge sheet. The Inquiry Officer submitted the first inquiry report on 30th June, 1985 whereas, the report of the Enquiry Officer in the second enquiry, was submitted on 21st March, 1988. Finally, by an order dated 9th May, -5- 1985 the workman was awarded the punishment of dismissal from service. The same was received by him on or about 30th May, 1988. As the Reference (IT) No. 8 of 1985 was pending before the Industrial Tribunal at Pune, an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 for approval was submitted before the said Tribunal and it came to be registered as Approval Application (IT) No.14 of 1988. By its Award dated 2nd April, 1990, the Tribunal was pleased to grant its approval. 4. While the said approval application was pending, the Union approached the conciliation officer with a demand of reinstatement with backwages contending that the order of dismissal dated 9th May, 1988 was illegal, unjust and void ab-initio. The said demand came to be referred for adjudication to the Labour Court in Reference (IDA) No. 45 of 1989. By the first award, on the preliminary point regarding the legality and validity of the domestic enquiry, the Labour Court held that the enquiries conducted against the workmen were legal, fair and proper. In the second Award dated 7th April, 1995, the Labour Court held that acts of misconduct alleged against the workman, were duly proved on the basis of the evidence placed before the Enquiry Officer and on the quantum of punishment, the Labour Court held that it -6- was commensurate with the nature of charges proved against the workman. 5. Mr.Topkar, the learned counsel for the petitioner-Union in his exhaustive arguments referred to the enquiry proceedings, the Enquiry Officer’s findings in both the enquiries and the impugned awards and submitted that the Labour Court fell in gross errors in holding that the enquiry conducted was fair, proper and legal though it was aware that the enquiry was conducted exparte. He further submitted that neither the charge sheet nor any subsequent communications regarding the date of enquiry, were served on the workman and whatever the communications were sent in that regard, were dispatched on wrong address. The workman was thus, denied the basic opportunity of defending the charges and presenting his case before the Enquiry Officer. By referring to the evidence of witnesses, as examined in the exparte enquiry, it was submitted by the learned counsel that the evidence of Mr.Nandre could not have been considered and the testimony of other witnesses was tutored, not corroborated by any other documents like the reports submitted to the Management or FIRs filed with the concerned Police Stations. Almost every witness was a got up witness and their depositions were as per the dictates of the -7- employer. The evidence of all the witnesses lacked the credibility and could not be believed even on pre-ponderance. The acts of misconducts which were alleged to have been committed in the factory premises, were not proved and the acts of misconducts which were alleged to have taken place outside the factory premises or at the residence of the officers/Managers including the alleged assault on the supervisory staff in the Deccan Gymkhana area of Pune City as well as in Pimpri-Chinchwad, were not corroborated by any independent and plausible evidence. In short, the workman was deliberately framed by levelling false charges as he was an office bearer of the petitioner-Union and the action of the Management of dismissing him from service, was by way of victimisation. 6. Mr.Purav, the learned counsel for the Management on the other hand, has supported the findings recorded by the Enquiry Officer as well as the Labour Court. He submitted that the Management had taken utmost precaution to send the first charge sheet as well as enquiry notices at the address furnished by the workman himself and all these communications were returned by the postman with the remark "incomplete address". He also submitted that the exparte enquiry was not proceeded hastily and it was adjourned on -8- about 3 to 4 occasions by the Enquiry Officer so as to ensure that all the modes of communications were followed and finally the enquiry notice was published in one of the local Marathi newspapers. So far as the second enquiry is concerned, it has been submitted that the workman had fully participated, he was duly defended by the representative of his choice and all the witnesses of the company were cross-examined on behalf of the workman. As the Labour Court on examination of the evidence considered by the Enquiry Officer, agreed with the findings recorded in the enquiry reports, these findings regarding ‘proved acts of misconduct’ against the workman, are not required to be disturbed and in fact, there is no case made out for the same. Even in the exparte enquiry, in addition to Mr.Nandre, other witnesses who were the victims, were examined and the Enquiry Officer as well as the Labour Court on assessing their testimony, held that their evidence was sufficient to prove the charges which were serious in nature. It was further submitted that even if one charge of serious misconduct was proved, that by itself, would justify the punishment of dismissal from service and in the instant case, more than one such charges of serious misconducts have been duly proved which did not call for interference under the supervisory jurisdiction -9- of this Court. The learned counsel further submitted that the witnesses examined by the company were not biased nor was there any allegation that they had any score to settle against the workman or the Union. The evidence of such witnesses was not required to be corroborated by any other evidence either oral or documentary. . Both the parties have referred to a number of decisions of this Court as well as the Supreme Court, which would be referred to hereinafter. 7. It would be appropriate to reproduce the charges levelled against the workman in both the charge-sheets: FIRST CHARGE-SHEET FIRST CHARGE-SHEET FIRST CHARGE-SHEET I. That from 6.4.1984 to 25.4.1984, you worked only partially each day for about one hour or two and resorted to illegal sit-in-strike in a similar manner. II. During the said period, you arranged to put boards/posters with threatening language against Managerial staff of the Company and instigated other workmen to stage threatening/violent demonstration against Management and managerial staff during working hours and within the factory premises. III. On 15th April, 1984, you organised a meeting within the factory premises during working hours without permission -10- of the Management ostensibly to celebrate ‘Hanuman Jayanti’ but with a view to threaten the Management with dire consequences, should your unjustified demands not be considered by the Management. IV. With effect from 27.4.1984, although you were aware that the Management was ready and willing to allow you to attend for work on your giving an undertaking to work normally and to observe normal rules of discipline,you refused to come for work and thereby continued your participation in illegal strike and instigated other workmen to participate in the said illegal strike in a similar manner. V. On 6th and 7th August, you along with other workmen numbering 60 visited the places of residence of Mr.P.P.Sharma, Mr.P.K.Chatterjee and mr.U.V.Shenoy (wake them up) and demanded of them that they should not continue to attend to their duty at the factory any more and threatened them and their family members of dire consequences should they neglect the said directives given by you. VI. On 13.8.1984, you along with a few other workmen obstructed the company’s contractor Mr.Palande at Recold corner on Bombay-Pune road and at Pimpri Railway Station at 5.30 p.m. and man-handled him and beat him up because he was attending to his contract work with the factory against your wishes. VII. You instigated the other workmen to beat the supervisor and Management staff who are attending the factory and refusing to stay away from duty on 5th Sept.. at 6.50 a.m. as per your advice and in your presence your co-workers Mr.S.S.Gogawale, Mr.S.S.Kakade, Mr.B.C.Rajguru and Mr.Kumbharkar caught hold of our supervisors/Management staff Mr.Navala, Mr.Sarode, Mr.Pendharkar near Deccan Gymkhana (Near Natraj Theatre) and at about 7.30 a.m. near H.A.Colony Main Gate caught hold of Mr.M.P.Sethi, Mr.V.T.Abhankar and Mr.C.N.Palekar while -11- they were proceeding to factory for duty and severely beat them up for their refusal to stay away from duty as per your wishes. SECOND SECOND SECOND CHARGE-SHEET CHARGE-SHEET CHARGE-SHEET I. On 18.6.85 you along with some other workmen had displayed a notice for the workmen inside factory premises at Canteen Building without permission of the Management alleging therein that some workmen have decided securing signatures of the workmen and appealing to the workmen not to give such signatures. II. On 14.7.85 at about 20-30 hours. while on duty you left normal work and approached some workmen at about 20.45 hours within factory premises and asked and pressurised them to become member of Maharashtra General Kamgar Sanghatana. III. You have been generally canvassing amongst the workmen not to increase their production to the targeted level in terms of the spirit of the Settlement dated 15.3.85 to which you are also a party. IV. You along with some other workmen have displayed placards of Maharashtra General Kamgar Sanghatana inside factory premises without permission of the Management. 8. Though in the first charge-sheet, the specific sub-clauses regarding misconducts under clause 24 of the Model Standing Orders as applicable to the factory, were not set out, the Enquiry Officer in his report dated 30th June, 1994 held that the acts of misconduct under clause nos.24(b)(c)(k)(l)(r) and (w) were duly proved, whereas, in the second report, the -12- acts of misconduct under clause nos. 24(a)(c)(i)(l)(r) and (w) were held to have been proved. 9. In the case of Mani Nariman Daruwala and others Vs. Phiroz Nariman Bathena and others AIR 1991 S.C. 1494 while dealing with the powers of High Court under Article 227 of the Constitution of India, it has been noted thus: . "In the exercise of this jurisdiction, the High Court can set aside or ignore the findings of facts of an inferior Court or Tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Court or the Tribunal who has come or in other words, it is a finding which was perverse in law. Except to the limited extent indicated above, the High Court has no jurisdiction to interfere with the findings of facts". . In the case of Savita Chemicals Pvt.Ltd. Vs. Dyes and Chemical Workers’ Union and Another 1999 (2) S.C.C. 143 on the same issue, it has been held that under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law. In the case of M/s. Essen Deinky Vs. Rajiv Kumar reported in Judgment Today 2002(8) S.C. 471, the -13- powers of the High Court under Article 227 of the Constitution of India, have been summarised in the following words: . Generally speaking, exercise of jurisdiction under Article 227 of the Constitution of India is limited and restrictive in nature. It is so exercised in the normal circumstances for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice to name a few: It is merely a revisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdictions of the Courts below. The finding of fact being within the domain of the inferior Tribunal, except whereas it is a perverse recording thereof or not based on any material whatsoever, resulting in manifest injustice, interference under Article is not called for". 10. In the case of State of Haryana and another Vs. Ratan Singh reported in SCL J. Vol.V Page 168, a three Judge Bench of the Supreme Court on the issue of assessment of evidence in a domestic enquiry, has held as under: . "It is well settled that in a domestic enquiry, the strict and sophisticated rules of evidence under the Indian Evidence Act, may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence -14- provided it has reasonable nexus and credibility. It is true that the departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. The essence of judicial approach is objectivity, exclusion of extraneous material or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached such finding, even though of a domestic Tribunal, cannot be held good". . On the powers of the Labour Court/Industrial Tribunal to mould the order of punishment under Section 11-A of the Industrial Disputes Act, the guide-lines have been laid down right in the initial stage in the case of The workmen of Firestone Tyre and Rubber India Ltd. Vs. The Management and others (AIR 1973 SC 1227), It has been inter alia held; . "Even where the dismissal of a workman, by an employer on the ground of misconduct is preceded by a proper and valid domestic enquiry, Section 11-A of the I.D.Act and powers of the Labour Court or the Industrial Tribunal to reappreciate the evidence and examine the correctness of the finding thereat and it further empowers but to interfere with the punishment and alter the same. The mere fact that no enquiry or defective enquiry has been held by the employer, does not by itself render the dismissal of workman -15- illegal. The right of the employer to adduce the evidence justifying his action for the first time in such a case, is not taken away by the proviso to Section 11-A. The Tribunal has been empowered to satisfy itself whether the misconduct is proved before the Enquiry Officer or on the basis of the evidence placed before it." . A Division Bench of this Court in the case of Municipal Corporation of Greater Bombay Vs. S.E.Phadtare and others reported in 1995 (1) LLJ 70, has also referred to the wide powers available under Section 11-A of the I.D.Act and reiterated the limits while exercising the powers under Article 227 of the Constitution of India. It held thus: . "Writ jurisdiction is to be exercised for correcting obvious injustice and the restraint exercise by this Court while exercising the writ jurisdiction, cannot be treated as a licence for passing any perverse orders by the lower authorities." . On the issue of victimisation while awarding punishment by the employer, another three Judge Bench in the case of M/s. Bharat Iron Works Vs. Bhagubai Balubhai Patel and others (SCL J. Vol-8 page 274): A.I.R. 1976 SC 98:1976 (1) SCC 518, has set out the guide-lines in the following words: . "The onus of establishing a plea of -16- victimisation will be open to the person pleading it. Since a charge of victimisation is a serious matter reflecting to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced. Again victimisation must be directly connected with the activities of the concerned employee inevitably leading to the penal action without necessary proof of valid charge against him. The question to be asked: Is the reason for the punishment attributable to gross misconduct about which there is no doubt or to his particular trade union activity which is frowned upon by the employer? To take an example, suppose there is a tense atmosphere prevailing in a company because of a strike consequent upon the raising of certain demands by the Union each party calling the other highly unreasonable or even provocative, the Tribunal will not readily accept the plea of victimisation as answer to a gross misconduct even when an employee, be he an active office bearer of Union commits assault, let us say, upon the Manager, and there is reliable legal evidence to that effect. In such case, the employee found guilty, cannot be equated with a victim or a scapegoat and the plea of victimisation as a defence, will fall flat. This is why once in the opinion of the Tribunal a gross misconduct is established as required, on legal evidence either in a fairly conducted domestic enquiry or before the Tribunal on merits, the plea of victimisation will not carry the case of the employee any further. A proved misconduct is anti-thesis of victimisation as understood in industrial relations. This is not to say that the Tribunal has no -17- jurisdiction to interfere with an order of dismissal on proof of victimisation." . In the case of Burn & Co. Ltd. Vs. Workman AIR 1959 SC 529, by referring to the earlier decisions in the case of State of Orissa Vs. Vidyabhushan Mohapatra, reported in 1963 Suppl.1 SCR 648, the Supreme Court held that the order of dismissal by way of punishment can be upheld even on one proved charge of misconduct out of a group of charges depending upon seriousness of such single charge. In the case of M/s. Dalmiya Dadri Cement Ltd. Vs. Murarilal Bikaneria reported in AIR 1971 S.C. 22/1970(3) S.C.C. 259, one workman was found blowing whistle at the instance of another worker leading to stoppage of work, the Supreme Court held that "such an act of indiscipline could not be tolerated by the employer whatever be the demand for cessation of work". . The challenge to the impugned Awards at the instance of the Union and the workman, is required to be examined on the touchstone of the legal position summarised hereinabove. 11. Now coming to the first charge-sheet in respect of which the domestic enquiry proceeded exparte, the main argument advanced before the Labour Court and in -18- this petition as well, has been that the charge-sheeted workman never received either the chargesheet or the enquiry notices dispatched from time to time and this happened on account of the Management sending the notices on the wrong address. The Management falsified these allegations by bringing on record several documents submitted by the delinquent workman himself and one of them was his own letter dated 18th July, 1985 which was his explanation to the second charge-sheet dated 16th July, 1985. The workman’s address on the said letter inscribed by himself was: . "A.R.Chavan, Rasta Peth, Opposite Rahatekar Mandhavwale, Near K.E.M.Hospital, Pune - 411011" . Whereas the charge-sheet as well as enquiry notices were sent on the following address by the Management: . "A.R.Chavan, Rasta Peth, Opposite Rahalkar Mandhavwale, Near K.E.M.Hospital, Pune - 411011" . The difference between the two addresses was -19- ‘Rahalkar Mandavwale’ and ‘Rahatekar Mandavwale’ and it could not have