WP/3518 & 4803/1998 1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3518 OF 1998 TATA Engineering & Locomotive Company Ltd. ... Petitioner v/s Shri Ramesh Dayanand Suryawanshi & ors. ... Respondents ALONG WITH WRIT PETITION NO. 4803 OF 1998 Shri Ramesh Dayanand Suryawanshi ... Petitioner v/s TATA Engineering & Locomotive Company Ltd. & anr. ... Respondents Mr.J.P.Cama with Mr.K.S.Bapat and Mr.Anupam Surve for the petitioner Company in W.P.No.3518/1998 and for respondent No.1 Company in W.P.No.4803 of 1998. Mr.V.H.Shekhdar for respondent No.1 workman in W.P.No. 3518 of 1998 and for the petitioner in W.P.No.4803 of 1998. CORAM : SMT.NISHITA MHATRE, J. DATED : 21ST SEPTEMBER, 2010 JUDGMENT: 1. These writ petitions have been filed against the Award Part II passed by the Labour Court in Reference (IDA) No. WP/3518 & 4803/1998 2 492 of 1994. Writ Petition No.4803 of 1998 has been filed by the workman challenging the Award to the extent that it does not grant him continuity of service and back wages. 2. For the purpose of convenience the petitioner in Writ Petition No.3518 of 1998 will hereinafter be referred to as the Company, whereas the petitioner in Writ Petition No. 4803 of 1998 will hereinafter be referred to as the workman. 3. The workman was employed with the Company from 13.1.1981 as a fitter. From 1985 to 1993, according to the Company, the workman faced disciplinary action at least on 8 occasions for acts of misconduct. He was found guilty on each of these occasions and was either suspended or warned. The acts of misconduct alleged against the workman ranged from disobedience, indecent behaviour, acts subversive of discipline to absenteeism. The workman did not challenge any of the punishments imposed on him by the Company. From January 1992 to December, 1992, it was found that the workman had remained absent for 171 days and, therefore, a charge-sheet was issued to him on 25.6.1993. A departmental enquiry was conducted against the workman. He admitted the charge of absence without authorized leave. However, the workman defended his absence by contending that he was medically unfit due to a severe back problem. The WP/3518 & 4803/1998 3 workman produced medical certificates after the enquiry was completed along with the statement of defence submitted by him. The enquiry officer has disregarded these medical certificates as they were not proved by examining the concerned doctors. 4. The workman was dismissed from service on 25.1.1994. He raised an industrial dispute which was referred for adjudication to the Labour Court, Pune, by Reference (IDA) No.492 of 1994. In his statement of claim filed in the reference, the workman contended that the enquiry conducted against him was in violation of the principles of natural justice and fair play and that the findings of the enquiry officer were perverse. The company contested the reference by pleading that the enquiry was held by an independent person in consonance with the rules of natural justice. 5. By Award Part I, the Labour Court held that the enquiry conducted against the workman was fair and proper and that the findings of the enquiry officer were based on the evidence recorded before him and, therefore, the report of the enquiry officer could not be considered as perverse. The Labour Court held that the charge against the workman of remaining absent for 171 days without sanctioned leave WP/3518 & 4803/1998 4 during the calendar year of 1992 was serious and had been proved by the enquiry officer. Evidence was led by the workman thereafter in support of his case that he should be reinstated, despite the findings of the enquiry officer having been upheld by the Labour Court. He has stated that he was suffering from backache and spondylosis because he had to lift heavy weights while working with the Company. As regards back wages, the workman has stated that he tried to secure employment at 2 or 3 places after his dismissal from the Company but without success. He has stated that he could not move without using a belt and that he could only undertake light work. He has also stated that he would try to ensure that he would attend duty on most days although he could be troubled by his backache during the monsoon and the winter seasons. 6. The Labour Court by Award Part II dated 27.5.1998, which is challenged in both the petitions, had directed that the workman should be reinstated on the post on which he was working but without continuity of service and back wages. The Labour Court has observed that the evidence on record revealed that about 30 to 35 workmen were employed in the same department as the present workman and the nature of work performed by them was similar to that allotted to the present workman. It has also found no WP/3518 & 4803/1998 5 evidence on record to indicate that there was any causal connection between the nature of work allotted to the workman and his backaches. However, the Labour Court found that since the workman’s absence from duty was mainly due to ill-health, it was not deliberate. The medical certificates produced indicating that the workman was under prolonged medical treatment for spondylosis were accepted by the Labour Court. It held that the Company ought to have taken a lenient view while imposing punishment in these circumstances. The Labour Court then observed that since the workman had remained absent on 28 occasions for 171 days without sanctioned leave, he deserves to be punished and that the punishment of dismissal was shockingly disproportionate. In these circumstances, the Labour Court directed that the workman be reinstated in service without continuity and back wages. 7. Mr.Cama appearing for the Company submitted that the Labour Court has passed a perverse order by directing the Company to reinstate the workman. Despite the misconduct proved by the management, submitted Mr.Cama, the Labour Court has thought it fit to direct the Company to reinstate the workman in his original post. According to him, a person who has been absent for 171 days in a year need not be shown any indulgence by the employer. WP/3518 & 4803/1998 6 He pointed out that the misconduct appears to be deliberate on the part of the workman. Mr.Cama then urged that the past service record of the workman was bad and, therefore, the Company could not be burdened by employing a person who is not willing to work. He pointed out that besides several days on which the workman was absent in 1992 for which he was charge-sheeted, he has been absent from work intermittently for more than 10 consecutive days right from 1985. Mr.Cama then drew my attention to the fact that besides being suspended for his absence, the workman had committed acts subversive of discipline and good behaviour for which he had been punished. He, therefore, submitted that when the Labour Court had found that the misconduct had been proved, the question of reinstating the workman does not arise. Mr.Cama relied on the judgment of the Supreme Court in the case of L&T Komatsu Ltd. v/s N. Udayakumar, reported in (2008) 1 SCC 224 and on the judgments of this Court in the case of TATA Engineering & Locomotive Co. Ltd. v/s Suhas Madhukar Mulay & anr., reported in 2007 (115) F.L.R. 918 and Writ Petition No. 2115 of 1999 between TATA Engineering & Locomotive Co. Ltd. v/s Ishwarchand Tarachand Jain & anr., decided on 21.8.2007. WP/3518 & 4803/1998 7 8. Mr.Shekhdar appearing for the workman took exception to the award passed by the Labour Court directing that the workman should be reinstated without continuity of service and back wages. He submitted that when a workman is reinstated, continuity of service and back wages must follow as a matter of course. According to him, therefore, the Labour Court has committed a serious error in not granting back wages and continuity of service. He has relied on the judgments in the case of (i) Hindustan Tin Works Pvt. Ltd. v/s The Employees of Hindustan Tin Works Pvt. Ltd. & ors., reported in A.I.R. 1979 SC 75, (ii) Jain Bhagwan v/s Management of the Ambala Central Co- op. Bank Ltd. & anr. And Jai Bhagwan v/s State of Haryana & anr., reported in A.I.R. 1984 SC 286; (iii) Sant Raj & anr. v/s O.P.Singla & anr., reported in A.I.R. 1985 SC 617 and (iv) Surjit Ghosh v/s Chairman and Managing Director, United Commercial Bank & ors., reported in A.I.R. 1995 SC 1053. Mr.Shekhdar then pointed out that the Labour Court has committed no error in granting reinstatement in service. According to him, the Labour Court has considered the entire case in its proper perspective and has accepted the fact that the workman, though absent, was prevented from attending the work only because of his back trouble. He submitted that despite the WP/3518 & 4803/1998 8 doctor on the Company’s medical panel having prescribed that light work should be allotted to the workman, the Company took no notice of this recommendation. He then urged that had the service of the workman not been upto the mark, the Company would not have promoted him as a Fitter in 1984. He further submitted that the Company permitted him to fill the leave card for 40 days from 12.1.1992 to 27.5.1992 and, therefore, his absence for these days has been condoned by the Company. According to him, the medical certificates which were produced on record by the workmen amply demonstrate that he had been advised rest on account of his spondylosis suffered by him. Mr.Shekhdar then urged that the Company ought to have ensure that the workman was examined by the Medical Board of the Company before terminating his services for absenteeism. The workman has improved his health today and there would be no impediment for him to work as a Fitter if he is reinstated, contended the learned advocate. 9. The Labour Court has found that the enquiry held against the workman was not vitiated and that the findings of the enquiry officer were not perverse. In these circumstances, the Labour Court has rightly held that the misconduct alleged against the workman was proved. The only reason for the Labour Court to have directed the WP/3518 & 4803/1998 9 workman to be reinstated was that he was unwell during the period of his unauthorized absence and that in these circumstances, it would be appropriate to reinstate the workman or without continuity of service and back wages. 10. In L & T Komatsu Ltd. case (supra), the Supreme Court has held that habitual absenteeism amounts to gross violation of discipline. It has reiterated the view taken by it in the judgment of Burn & Co. Ltd. v/s Workmen, reported in A.I.R. 1959 SC 529. The Supreme Court has also reiterated its view that the Labour Court or the High Court should not ordinarily interfere with the punishment by the employer when the misconduct is found to be proved. The Court has observed that the provisions of Section 11-A cannot be exercised by way of sympathy alone. 11. In Writ Petition No.2115 of 1999 between TATA Engineering & Locomotive Company Ltd. v/s Shri Ishwarchand Tarachand Jaiin & anr., and in TATa Engineering & Locomotive Co. Ltd. v/s Suhas Madhukar Mulay, reported in 2007 (115) F.L.R. 918, I had the occasion to consider two cases where the facts are similar to the present case. The workmen in those cases was habitually absent for long periods of time. The enquiries held against those workmen were found to be proper. The misconduct WP/3518 & 4803/1998 10 was proved against them. However, the Labour Court had, while exercising its jurisdiction under Section 11-A of the I.D. Act, opined that absence from duty could not be considered as a grave and serious misconduct especially in view of the fact that the workmen had put in many years of service. Considering the record of the workmen in those cases, I have set aside those orders of the Labour Court by concluding that the decision of the management can be interfered by the Labour Court under Section 11-A provided the punishment is shockingly disproportionate and not commensurate with the acts of misconduct alleged against the workman. 12. In the present case, the workman was charge-sheeted for absence on the following days:- --------------------------------------------------------------------------------------------- Month: No.of : Dates No. of Days occasions --------------------------------------------------------------------------------------------- 1992 Jan. 16 12 to 22, 27 to 31 2 Feb. 9 14 to 18, 24 to 26, 29 3 March 4 1 to 4 - April 9 5, 17 to 19, 24 to 28 3 May 3 25 to 27 1 June 3 9, 13, 14 2 July 15 1,4,5, 7 to 15, 29 to 31 4 August 24 1 to 5, 10 to 19, 23 to 31 2 Sept. 27 1, 2, 6 to 30 1 Oct. 20 1 to 11, 16,18,19,21 to 24,30,31 4 Nov. 17 1 to 6, 9,10, 16 to 21, 23 to 25 3 Dec. 24 2, 5 to 7, 12 to 31 3 ------ ------- 171 28 --------------------------------------------------------------------------------------------- WP/3518 & 4803/1998 11 Besides these acts of misconduct for absenteeism in the year 1992, the past service record of the workman is, in my opinion, not at all satisfactory. It is as follows:- --------------------------------------------------------------------------------------------- Year Misconduct Punishment Unauthorized Other than Absenteeism Absenteeism 1985 100 - Suspension 4 days 1987 - Disobedience Suspension 4 days 1990 223 - Warning 1991 - Indecent behaviour Warning 1991 - Act subversive of discipline Advisory Note 1991 142 - Suspension 4 days 1993 - Indecent behaviour Suspension 1 days 1993 - Indecent behaviour Suspension 1 day 13. In these circumstances, in my opinion, once the Labour Court came to the conclusion that the misconduct had been proved, there was no reason for the Labour Court to show any indulgence and to reinstate the workman. It is true that the workman had produced medical certificates of doctors including those of the panel doctor of the Company. However, these certificates were produced at the fag end of the enquiry and have not been proved. The doctors who issued the medical certificates have not been examined. The workman merely produced photo-copies of the certificates WP/3518 & 4803/1998 12 along with his statement in defence and sought to rely on them. The Company therefore had no opportunity to contest those certificates by cross-examining the workman on those certificates. The enquiry officer rightly disregarded these certificates and in fact the Labour Court has found no error in this procedure adopted by the enquiry officer. In my opinion therefore, the Labour Court, after having found the workman to have committed serious acts of misconduct of absence for 171 days, ought to have dismissed the reference. Even accepting Mr.Shekhdar’s contention that the workman has been permitted to fill in his leave card for 40 days out of 171 days of absence, his absence for the rest of the days in the year cannot be condoned. Besides this, there is nothing on record to show that although the leave card was filled in by the workman, the leave itself was sanctioned by the Company. Further, the contention of Mr.Shekhdar that the Company ought to have allotted light work to the workman when its panel doctor had recommended this, is without substance. The workman was aware that the panel doctor had recommended that light work should be allotted to him in 1986 itself. There is not a single letter written by the workman to the Company which has been brought on record, requesting that light work should be allotted to him as recommended by the doctor of the Company’s panel. It was for the workman to point out to the Company that the WP/3518 & 4803/1998 13 Company’s doctor had advised him light work and, therefore, he ought to be allotted some work other than that of a fitter where he was required to carry weights of more than 50 kg. 14. The grant of reinstatement by the Labour Court in these circumstances is not justified. There is no evidence or material on record to show that the workman had recovered from his back problem and was really fit to work as a fitter. In fact, in his evidence, which was recorded by the Labour Court only about two months prior to the passing of the award the workman has stated, “I cannot move without using a belt. I can do only light work. There is sufficient work with the first party of light nature. There can be trouble to me in rainy season and winter season and I will try to attend the duty on maximum days. The doctors have told me that my disease is not curable by the medicines.” Thus, without there being any material on record to indicate that the workman had fully recovered from his back trouble and that it would not be an impediment for him to work, the Labour Court ought not to have granted reinstatement. Even today, despite my asking Mr.Shekhdar, the learned advocate for the workman, whether the workman had any medical certificate pronouncing him fit to resume duty, there is nothing on record to indicate that the workman is medically fit and therefore can perform work as before. WP/3518 & 4803/1998 14 15. I need not consider the judgments cited at the bar by Mr.Shekhdar in respect of continuity of service and full back wages in the light of the view I have taken above. 16. In these circumstances, in my opinion, the award of the Labour Court must be set aside. 17. Accordingly, the impugned award of the Labour Court is set aside. 18. Writ Petition No.3518 of 1998 is allowed. Rule made absolute. 19. Writ Petition No.4803 of 1998 is dismissed. Rule discharged. .....