IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1996 OF 2009 The TATA Power Company Ltd. ..Petitioners Vs. S. M. Harke & Ors ..Respondents AND WRIT PETITION NO.1997 OF 2009 The TATA Power Company Ltd. ..Petitioners Vs. Kishor Salvi & Ors ..Respondents AND WRIT PETITION NO.1998 OF 2009 The TATA Power Company Ltd. ..Petitioners Vs. A. N. Bhoir & Ors ..Respondents AND WRIT PETITION NO.1999 OF 2009 The TATA Power Company Ltd. ..Petitioners Vs. S. R. Gharat & Ors ..Respondents Mr. K. M. Naik with Mr. S. P. Salkar for the Petitioner Ms. Rita K. Joshi for the Respondents CORAM: DR. D.Y. CHANDRACHUD, J. DATE: 9th November , 2009 Oral Judgment : 1. This batch of Writ Petitions before the Court raises a similar issue and has been heard together. Counsel state that the facts relating to all the cases are similar. Rule, With the consent of the Counsel, the Petitions are taken up for final hearing. Learned Counsel for the Respondents waives service. 2. The Respondent workmen were employed as Senior Security Guards in the Security Department at the Trombay Thermal Power Station. The Petitioner supplies electric power to vital installations in the City of Mumbai including the Railways, Air Force, Hospitals, BARC, Oil Refineries and Defence establishments. All the workmen were on duty on 31st December 1999 in the general shift from 0730 hrs to 1630 hrs. At about 1315 hrs., the workmen were found to have consumed liquor alongwith three other workmen in the Security Guards’ locker Room near the main gate of the Power House at the Trombay Thermal Power Station. The case of the management is that the workmen were caught red handed by Mr. P.B. Palekar (DGM) and Mr. D.G.Mehra (VP), while consuming beer together with three other employees. The workmen were suspended. A departmental inquiry was conducted on allegations of misconduct, contained in a charge sheet dated 6th January 2000. All the employees, it has been conceded before the Court by Counsel for the workmen, admitted the charge of misconduct. The inquiry officer submitted his report on 8th February 2000, holding the workmen guilty of misconduct. The workman in Writ Petition No.1997 of 1999 was on privilege leave from 21st December 1999 to 31st December 1999 and on the date of the incident had entered the premises, when he was found to be consuming liquor. Upon the conclusion of the inquiry and in pursuance of the opportunity granted to them, the workmen submitted their explanations. A second show cause notice was issued by the Management calling upon the workmen to explain as to why they should not be dismissed from service. The Workmen came to be dismissed from service on 20th May 2000. The Workmen filed application under Sections 78 and 79 of Bombay Industrial Relations Act 1946 before the Labour Court. 3. The Labour Court by its Part I Award dated 23rd June 2006 held that the inquiry was fair and proper. However, by its Part II Award dated 30th April 2008, the Labour Court allowed the Application by granting reinstatement with 25% back wages. Cross Appeals were filed by the Management and by the Workmen. The Industrial Court allowed the Appeal filed by the employer in part by setting aside the direction for the payment of back wages. The order of reinstatement was confirmed. 4. Counsel appearing on behalf of the Petitioners has urged that, the misconduct which is allegedly to have been committed by the workmen is of a grave and serious nature. The workmen were found to have consumed liquor in the premises of the establishment and the misconduct was duly found to be established, under clause 32(10) of the Standing Order. It was urged that, both the Labour Court and Industrial Court manifestly exceeded jurisdiction in holding that the action of the management was discriminatory. All the four workmen, who are the subject matter of these proceedings were employed as Senior Security Guards. The three other employees, who were also found to have consumed liquor in the premises, comprised of one Driver and two operators. The representative Union under the Bombay Industrial Relations Act 1946, had espoused the case of those three workmen and a settlement was arrived at with the representative union on 16th February 2001, by which, the three other workmen were suspended by way of punishment for four days. However, the management was justified in taking a strict view in regard to the conduct of the four workmen in question, since they were security guards entrusted with duties of maintaining vigil over a sensitive installation. It was urged that, the security guards fall into a distinct class and the Management had not acted discriminatorily. 5. On the other hand, it was urged on behalf of the Respondent workmen that consumption of alcohol in the premises of the establishment would amount to a misconduct by whichever employee it is committed and that there was no justification for the management to distinguish between security guards on the one hand and the driver and the operators on the other hand. Counsel submitted that, the action of the management was discriminatory. The workmen have suffered for over nine years and, it was urged, the grant of reinstatement with back wages would be in the interests of justice. 6. In considering the merits of the rival submissions, it must be noted, at the outset, that it is an admitted position before the Court that all the workmen in question had admitted to having consumed liquor in the premises of the establishment. Three of the workmen were actually on duty, while one of them ( the workman in Writ Petition No.1997 of 1999) was on privilege leave, but had come to the premises on the date of the incident. All the workmen were senior security guards and the charge of the misconduct which is found to be established is that, they had consumed liquor at the work place. 7. The Labour Court interfered with the punishment which was awarded by the Petitioner with the following observations “the so-called alleged incident has taken place on 31.12.99. This is the last day of the year. Seven persons were found eating food in the security guard room. They might have taken beer at the time of eating or they might have taken some alcohol at the time of eating the food. There is no evidence on record to show that all the persons were found misbehaving under the influence of alcohol. There were simply eating the food after taking alcohol or beer. In my view this not a serious offence.” 8. The Industrial Court in the Appeal filed by the Workmen and by the employer held thus: “The concerned employees were found consuming beer in the security guards locker room near main gate of the power house. The charge sheet refers to liquor but undisputedly what as been consumed was a beer. Out of four employees one was not on duty. The concerned employees had consumed beer but there is no allegation that they were under the influence of the liquor or beer. No other act or misdeed has been attributed to the concerned employees. The concerned employees were permanent workers who had served for years. They might have been punished earlier on few occasions but those were minor punishments for some lapses. Undisputedly, there was no major misconduct committed in the past. It is true that security guard is not expected to drink and work. In this case beer was drunk not only by the concerned employees but by four others also. Those others included a driver. The company has continued the driver in service inspite of the allegations of drinking beer while on duty. For company such a driver is acceptable but not the security guards. The driver and two others are continuing in service and the concerned employees are out of employment till the year 2000. In my view a driver and the security guards deserved to be treated the same way while considering their case for continuation in service.” 9. There is merit in the submission which has been urged on behalf of the Petitioner, that the reasons which have weighed with both the Courts below suffer from a clear perversity. The Labour Court seems to suggest that the consumption of liquor at the work place should be overlooked since this was the last day of the year and the workmen, though they might have consumed Alcohol “ at the time of eating food” were not found to be misbehaving. Consumption of alcohol at the work place by the security guards in the present case was a serious act of misconduct and the management was justified in taking a strict view of the matter. The representative Union espoused the cause of three of the seven workmen who were found to have consumed alcohol on the date of the incident and who were not security guards. The three other workmen consisted of one driver and two operators. If the representative Union and the management arrived at a settlement by which, the three other workmen were given punishment of suspension for four days that would by itself not entitle the Respondent workmen to the benefit of the same treatment. The Respondent workmen were senior security guards who were entrusted with the duty of protecting the installation and maintaining vigil. The installation of the Trombay Thermal Power Station is a vital installation in the city of Mumbai. The course of events in the recent history of city require no elaborate line of reasoning for the court to hold that the employer is justified in taking a serious view of a dereliction of duty by employees engaged to guard the establishment. The Industrial Court noted that the past record was not free from blemish. The management has not acted discriminatorily in treating the dereliction of duty by the security guards strictly. Those employees constituted a distinct class since they were specifically entrusted with the duty of guarding the establishment. 10. In these circumstances, both the courts were manifestly in error in finding fault with the management for having taken a serious view of the conduct of the Respondent workmen and in dismissing them from service. Having regard to the nature of the misconduct, the admission of guilt and the past conduct, the imposition of the penalty of dismissal ought not to have been interfered by the Labour Court and by the Industrial Court. The grant of reinstatement was clearly not warranted. 11. In these circumstances, the petition would have to be allowed and is accordingly allowed. Rule is made absolute in terms of prayer clause (a) by setting aside the Judgment of the Industrial Court dated 7th August 2009. 12. The Application filed by the Respondent workmen accordingly stands dismissed. 13. No order as to costs. (Dr. D.Y.Chandrachud, J)