WP-3928-98 & WP-4820-97 : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3928 OF 1998 Vilas Purushottam Kelkar .. Petitioner V/s. The Presiding Officer, 2nd Labour Court, Pune & Anr. .. Respondents ALONG WITH WRIT PETITION NO.4820 OF 1997 IEC Air Tools Pvt. Ltd., Pune .. Petitioner V/s. Vilas Purushottam Kelkar .. Respondent Mr. N.G. Helekar for the Petitioner in WP/3928/1998 and for the Respondent in WP/4820/1997. Mr. A.V. Anturkar for the Respondent No.2 in WP/3928/1998 and for the Petitioner in WP/4820/1997. CORAM :SMT. NISHITA MHATRE, J. DATE :6 TH SEPTEMBER, 2010. ORAL JUDGMENT: 1. These Writ Petitions are cross Petitions and arise from the Award passed by the Labour Court, Pune on 21st May, 1997 in Reference (IDA) No.275 of 1992. By this Award, the Labour Court has granted reinstatement with continuity of service to the petitioner, (hereinafter called “the workman”), in Writ Petition No.3928 of 1998. However, back- wages have been denied to the workman. WP-3928-98 & WP-4820-97 : 2 : 2. The workman was employed by the Company, i.e. the petitioner in Writ Petition No.4820 of 1997 and the respondent in Writ Petition No.3928 of 1998, on a consolidated salary of Rs.2,000/- per month. He was designated as a “Marketing Engineer” as he had a Diploma in Engineering. The workman was employed to undertake purely technical work under the directions and supervision of the Assistant Manager and the Marketing Manager. He met with an accident on 26th July, 1988 while on duty and became permanently disabled to the extent of 35%. He resumed duty thereafter on 6th October, 1989. The workman then filed an application before the Commissioner for Workmen’s Compensation since the Company had not paid any compensation to him for the disability suffered by him due to the accident which occurred while he was on duty. A charge sheet was issued to the workman on 17th January, 1991 referring to several acts of misconduct allegedly committed by him. After the enquiry was held, the workman was dismissed from service on 18th November, 1991. The workman, therefore, raised an industrial dispute regarding his reinstatement with continuity of service and back- wages. This dispute was referred for adjudication before the Labour Court, Pune. The Labour Court by Award Part I held that the enquiry conducted against the workman was WP-3928-98 & WP-4820-97 : 3 : fair and proper and in accordance with the principles of natural justice. The Labour Court then concluded that the petitioner in Writ Petition No.3928 of 1998 is a workman within the meaning of Section 2(s) of the Industrial Disputes Act. It further concluded that the evidence on record established that the workman had committed a misconduct on 1st July, 1991 for which his services had been terminated. However, the Labour Court was of the view that the punishment imposed by the Company for the misconduct allegedly committed by the workman was disproportionate and therefore directed that he should be reinstated with continuity of service but without back- wages. 3. Mr. Anturkar, the learned Advocate appearing for the Company, has challenged the aforesaid Award on two grounds, namely, (a) that the employee is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act. (b). that the punishment imposed of denial of back-wages is improper and not commensurate with misconduct committed by the workman. 4. Mr. Helekar, the learned Advocate for the workman, on the other hand pointed out that the Company’s witness has WP-3928-98 & WP-4820-97 : 4 : conceded in his deposition that the workman was performing clerical work. He therefore submitted that this issue cannot arise for consideration. He further pointed out that the Labour Court has drawn contradictory inferences while passing the order as above. He pointed out that the Labour Court, on the one hand has found that the incident of 1st July, 1990 has been proved and on the other hand it has observed that the incident with respect to one Zende is vague as the misconduct has not been specified by narrating the date, time and nature of the misconduct. According to Mr. Helekar, these two inferences are completely contrary to each other and therefore must be set aside. He submitted that once the Labour Court has found that the incident with Zende, which occurred on 1st July, 1990 was vague and not true, the Labour Court could not have imposed a punishment for that incident. He urged that the workman cannot be denied the back-wages under these circumstances. 5. The charge sheet describes four separate incidents when, according to the Company, the workman had committed acts of misconduct. The first incident was in respect of a foundry report sent by the workman for the period from 5th June, 1990 to 13th June, 1990, which the Company has found WP-3928-98 & WP-4820-97 : 5 : was totally incorrect. The second incident is of 1st July, 1990 when the workman allegedly picked up a quarrel with Mr. V.D. Zende after closing of the working hours in Amar Enterprises in the presence of other workmen over the issue of carrying the mail. It is alleged that the workman threatened Zende with indecent and improper language. The third incident is that of 6th July, 1990 where, according to the Management, the workman had not conveyed to the workmen of Amar Enterprises that increments in their salary would be paid after two weeks since two other workmen were ill. As a result of this act of the workman, the workers refused to accept their salaries for June, 1990 and the relations between the Company and its workmen, soured. The fourth incident is of 30th July, 1990, where it is alleged that during the visit of the Chairman and the Managing Director to Amar Enterprises, the workman had misbehaved and talked rudely to him using insulting language, in the presence of several persons. It is also alleged that the workman used to ask Zende to do the work which he was entrusted while he sat idle. 6. The enquiry conducted against the workman has been found to be fair and proper by the Labour Court in Award Part I which has not been challenged by the workman. WP-3928-98 & WP-4820-97 : 6 : Evidence was led before the Labour Court in which the workman as well as the representative of the employer were examined. This evidence pertained to the aspect as to whether the employee was a “workman” as defined under Section 2(s) of the Industrial Disputes Act. The evidence on record indicated that the Management’s witness Anant Mahadev Baravkar, the General Manager of the Company, has conceded that the employee was a “workman” under Section 2(s) of the Industrial Disputes Act. In these circumstances, in my opinion, the Labour Court has rightly answered this issue in the affirmative, that the employee is a “workman” as defined under Section 2(s) of the Industrial Disputes Act. The Court has also considered the judgment of the Supreme Court in the case of H.R. Adyanthaya etc. etc. vs. Sandoz (India) Ltd. etc. etc., reported in 1994 II CLR 552 . Since it has been held that the workman had proved that, he was performing work of a clerical nature, he fell within the inclusive part of the definition of “workman” contained in Section 2(s) of the Industrial Disputes Act. In these circumstances, in my opinion, the contention raised by Mr. Anturkar that the employee is not a workman is without any substance. 7. As regards the issue as to whether the Labour Court WP-3928-98 & WP-4820-97 : 7 : has erred in concluding that the back-wages ought not to be paid to the workman, in my opinion, the order of the Labour Court is erroneous. The Labour Court has found that the incident of 1st July, 1990, wherein it was alleged that the workman had abused Zende in filthy language, has been proved. However, at the same time the Labour Court has noted that the incident in respect of Zende was vague and the misconduct had not been specified by narrating the date, time and nature of the misconduct. Mr. Anturkar sought to explain this finding of the Labour Court by contending that this pertains to the misconduct alleged in respect of the incident of 30th July, 1990. However, the incident of 30th July, 1990 does not in any manner indicate that the foul language was used against Zende on that day. In fact, Zende was not involved in the incident of 30th July, 1990. The charge sheet only mentions that the workman used to entrust the work which was given to him, to Zende and he used to sit idle. The finding of the Labour Court that though the incident of 30th July, 1990 which involves Zende has been proved, the findings that the allegations were vague and the misconduct was not specified are contradictory. In these circumstances, the submission of Mr. Helekar that the misconduct alleged against the workman has not been proved, is correct. The Labour Court, in my WP-3928-98 & WP-4820-97 : 8 : opinion, ought to have granted reinstatement with continuity of service and back-wages to the workman. However, whether the workman is entitled to full back-wages during the period of his unemployment with the Company will depend on whether he was gainfully employed during this period. There is no evidence on record in respect of this issue. Therefore, in my opinion, it would be appropriate to remand the matter to the Labour Court for a decision only on whether the workman should be paid full back-wages. It is however clarified that the award in so far as it grants reinstatement with continuity of service is confirmed. 8. Accordingly the Writ Petitions are disposed of by passing the following order : “O R D E R” (i). The Reference (IDA) No.275 of 1992 is remanded to the Labour Court, Pune to decide whether the workman was gainfully employed during the period from 18th November, 1991 till the date of the Award i.e. 21st May, 1997 and WP-3928-98 & WP-4820-97 : 9 : whether consequently he would be entitled to full back-wages for this period. (ii). The parties are at liberty to lead evidence in respect of this issue, if so advised. (iii). The Labour Court, Pune will decide this issue within a period of three months from today. (iv). The parties shall appear before the Labour Court, Pune on 27th September, 2010 at 11 A.M. for further directions in the matter. (v). Parties to act on an authenticated copy of this order. 9. Rule made absolute accordingly. 10. No order as to costs.