1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4759 OF 2009 Shri. Laxman Dadarao Bhosale .. Petitioner Vs M/s. Kalyani Sharp India Limited .. Respondents Gayatri Singh for the petitioner C.V. Singh, Sr. Counsel i/b M/s. Haresh Mehta & Co for respondent no. 1 CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 3rd August,, 2009 P.C.: Heard the learned counsel for the petitioner and the learned counsel for the respondent – management. 1. The petitioner was appointed as operator in the respondent company in 1986. Thereafter, the petitioner came to be terminated on 26th February, 2000. The petitioner raised industrial dispute and a reference was made to the Labour Court to decide the dispute regarding reinstatement with full back wages and incidental benefits. Rma wp4759-09.sxw 2 2. The case of the management is that on 1st July, 1998, the petitioner along with the other workers has indulged in an act of abusing and assaulting the supervisor of the respondent company. Hence, after following all procedure including inquiry, the petitioner came to be terminated by order dated 16th March, 2005. The Labour Court by order dated 16th March, 2005 held that the inquiry conducted against the second party i.e the petitioner is legal, fair and proper and in accordance with the principles of natural justice. This finding has not been challenged by the petitioner. 3. The learned counsel for the petitioner states that however, the Labour Court had not addressed itself on the issue as to whether the findings in the inquiry was perverse. The second grievance is that the petitioner has been victimized and disproportionate punishment has been awarded to him. As far as first issue is concerned i.e the findings are perverse, we will have to refer to the evidence before the inquiry officer. Mr. Shaikh has been examined by the respondent company. He is a prime witness in the case as he is the person who has been Rma wp4759-09.sxw 3 abused and assaulted by the petitioner and other workers. Mr. Shaikh has stated in detail about the incident. In brief, evidence of Mr. Shaikh is that he was assaulted and abused in filthy language by the petitioner and six others. The learned counsel for the petitioner contended that it was not the present petitioner but it was one Mr. Dhage who had given a blow to Mr. Shaikh. However, the material on record shows that it was not just Mr. Dhage but it was the petitioner and six others who had assaulted and abused Mr. Shaikh. The learned counsel for the petitioner submitted that the other witnesses have not supported the fact that Mr. Shaikh was abused and assaulted by the petitioner and other workers. In support of her contention, she pointed out that Mr. Shirvekar in his cross stated that he had not seen the petitioner instigating the workers nor had he seen him assaulting any officer. However, the evidence of the any other witness could not be pointed out to show that they did not corroborate the evidence of Mr. Shaikh relating to his assault. As far as Mr. Shirvekar is concerned, he has come to the spot of incident a little later. Moreover, it is seen that almost ten witnesses have been examined by the management and all other witnesses have stated about the incident taking place wherein Rma wp4759-09.sxw 4 Mr. Shaikh came to be assaulted and abused by the petitioner and others. Thereafter, the learned counsel for the petitioner submitted that the other witnesses have not actually seen the incident, hence, their evidence is hearsay evidence and as such cannot be considered. However, from the record, this contention does not appear to be correct. The evidence of Mr. Shaikh is corroborated by other witnesses including Mrs. S.D. Rao who has specifically deposed about the incident which she saw from the bus and rescued Mr. Shaikh and others from clutches of the petitioner and his fellow workers. In this view of the matter, it cannot be said that Mr. Shaikh is the only witness who has deposed about the incident. Moreover, this being a Departmental Enquiry, the provisions of the Evidence Act would not be strictly applicable and even hearsay evidence can be looked into. Thus, as far as misconduct is concerned, it cannot be said that the findings of the inquiry officer are perverse. It cannot be said that there was no material for the inquiry officer to come to the conclusion that there was misconduct. In fact, there was sufficient material in relation to the misconduct by the petitioner which is reflected in the order of the Industrial Court. Hence, when the Industrial court has observed Rma wp4759-09.sxw 5 that there is sufficient evidence before the Inquiry Officer to prove the alleged act, it obviously means the findings of the Inquiry Officer are not perverse, hence I find no merit in this submission. 4. As far as, termination is concerned, the learned counsel for the petitioner has submitted that the punishment is disproportionate to the act of the petitioner. Evidence has been led in relation to the past record of the petitioner which shows that since 1990, he has been indulging in various incidents. It is not denied by the learned counsel for the petitioner that on earlier occasions also, the petitioner has been given charge sheet and he has been suspended on various occasions. The fact that the petitioner along with others physically assaulted the officer of the company and abused him in filthy language is a serious act. The act of the petitioner is such that it would intimidate other officers from working in the company. Looking to the act of the petitioner, especially when, there is background of past record, the Industrial Court was right in coming to the conclusion that the punishment was not disproportionate. Rma wp4759-09.sxw 6 5. The last submission is that the petitioner has been victimized which fact has not been properly considered by the Industrial Court. This contention that the petitioner was victimized is based on the fact that seven workers had allegedly taken part in the incident, however, the other six workers and the petitioner have been dealt with differently by the company. As far as this aspect is concerned, it is seen that after the incident, all seven employees who took part in the incident have been dismissed. This, in fact, is admitted by the petitioner in his cross. Thereafter, it was submitted that as far as six of the other workers are concerned, they were paid amounts of Rs. 2,00,000/- and Rs. 3,20,000/-. It is also admitted by the petitioner that after the termination took place, there was settlement in which Rs. 20,00,000/- was paid over to all the seven employees including the petitioner. He has also admitted that all other six employees settled their case by taking proportionate amount. However, it is only the petitioner who had not accepted the amount. In such case, it cannot be said that the petitioner was victimized or treated discriminately. 6. Looking to the material on record, no error can be found in the Rma wp4759-09.sxw 7 conclusion of the Industrial Court that the misconduct has been established and that the punishment is not disproportionate. 7. As far as, the offer of settlement of Rs. 2,25,000/- is concerned, Mr. Singh fairly stated that it is still open to the petitioner to take the said amount provided the petitioner gives an undertaking that he does not wish to challenge the order of termination any further. Further, Mr. Singh stated that the said offer is limited only for the period of 20 days from today. Looking to the above facts, no case is made out for interference. Writ petition is dismissed. (SMT. V.K. TAHILRAMANI, J) Rma wp4759-09.sxw 8 Rma wp4759-09.sxw