WP/756/1998 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.756 OF 1998 Mr. D.S. Kashid .. Petitioner V/s. Tata Engineering & Locomotive Co. Ltd., Pune .. Respondent Mr. Sham Walve i/b. Mr. D.K. Ghaisas for the Petitioner. Mr. J.P. Cama, Sr. Advocate, with Mr. K.S. Bapat and Mr. Anupam Surve i/b. Haresh Mehta & Co. for the Respondent. CORAM :SMT. NISHITA MHATRE, J. RESERVED ON :11 TH AUGUST, 2010. PRONOUNCED ON :15 TH SEPTEMBER, 2010. JUDGMENT : 1. The Writ Petition has been filed by a dismissed workman whose dispute for adjudication before the Labour Court, Pune, has been rejected by the Labour Court, Pune by its order dated 3rd October, 1997 passed in Reference (IDA) No.279 of 1991. 2. The petitioner was employed from 1977 with the respondent-Company. It appears that a charge sheet was issued to him on 25th May, 1989 alleging that he had incited workmen to participate in an illegal strike. He had also allegedly WP/756/1998 2 beaten another workman, one Shri. Shinde, in the factory premises on 15th March, 1989. It was further alleged that he had compelled the workmen, travelling in the company’s bus and by another modes of transport, to alight from their vehicles when they arrived at the factory gate. He informed the workmen that the Union, which he represented, had directed the workmen to proceed on a strike in retaliation to the action of the Management of suspending one of the members of the Union on the previous day. He further threatened them with dire consequences if they did not comply with the Union’s bidding. It appears that the charge sheet was accompanied by an enclosure indicating that he had assaulted one Madhukar B. Shinde at 8:15 A.M. on 15th March, 1989 which resulted in fracture of his nasal bones and multiple contusions over his face and abdomen. The petitioner replied to the charge sheet denying the charges levelled against him. He contended that the respondent-Management had fabricated the charges against the active workers of the Telco Kamgar Sangathana of which he was a member. He stated, further, that the action taken by the respondent-Management against him was because it had decided to target the active workers of the aforesaid Sangathana. WP/756/1998 3 3. An enquiry was conducted against the petitioner. He was represented by a lawyer at the enquiry. Seven witnesses were examined on behalf of the respondent-Management at the enquiry to prove the charges levelled against the petitioner. The petitioner examined himself and his brother in support of his contention that he was not present at the time of incident since he was at Mangalvedha. The Enquiry Officer, after considering the evidence led before him, held that the respondent-Management had proved the charges levelled against the petitioner and therefore concluded that the petitioner was guilty of the charges under Standing Orders 24(k), 24(b) and 24(l), which are as follows : “24(k).riotous, disorderly or indecent behaviour on the premises of the establishment; 24(b). going on an illegal strike or abetting, inciting, instigating or acting in furtherance thereof and; 24(l). commission of any act subversive of discipline or good behaviour on the premises of the establishment.” 4. The respondent-Management then issued a dismissal order to the petitioner on 1st December, 1990. WP/756/1998 4 5. Being aggrieved by the order of dismissal, the petitioner raised an industrial dispute which was referred for adjudication before the Presiding Officer, 2nd Labour Court, Pune. By Award Part I, the Labour Court held that the enquiry conducted against the petitioner was fair and proper and in accordance with the principles of natural justice. The Labour Court then decided the other issues and concluded that the findings of the Enquiry Officer were not perverse and that the punishment of dismissal was justified. The Labour Court was of the view that there was sufficient evidence on record to indicate that the petitioner was involved with the assault on Shinde on 15th March, 1989. The Labour Court did not accept the contention on behalf of the petitioner that he had been blamed because of the trade union rivalry. This was because the victim Shinde was a member of the same Union as the petitioner, namely, the Telco Kamgar Sangathana. The alibi raised by the petitioner was also disbelieved by the Labour Court as it accepted the finding of the Enquiry Officer that the petitioner had not raised this plea at the first instance i.e. when he replied to the charge sheet. Furthermore, the Labour Court concluded that the findings of the Enquiry Officer indicated that the workman had assaulted WP/756/1998 5 Shinde severely, fracturing the nasal bones. The Reference was therefore rejected. 6. The learned Advocate for the petitioner submitted that although it was the case of the respondent-Management that several workers were pulled out of the bus as well as from the vehicles on which they had arrived for work, none of them were examined before the Enquiry Officer. He submitted that the respondent-Management had only examined Shri. Shinde and, therefore, besides his interested testimony, there was no corroborative evidence on record. The learned Advocate submitted that the respondent-Management had not examined the Driver of the bus, which had been stopped, as one of its witnesses. All these facts, according to the learned Advocate, indicate that the presence of the petitioner has not been established. The learned Advocate then submitted that the victim Shinde, who was examined before the Enquiry Officer, could not name any of his co-passengers in the bus and, therefore, the probability of him being in the bus was far removed. He pointed out that Shri. Shinde was a member of a rival Union and therefore had involved the petitioner into the incident. The learned Advocate then submitted that the petitioner was at Mangalvedha on the relevant day and WP/756/1998 6 therefore could not have been present when the assault on Shri. Shinde took place. According to him, the petitioner has been victimized only because he was an active member of the Telco Kamgar Sangathana which is borne out from the fact that the criminal complaint filed against the petitioner was not pursued. The learned Advocate therefore submitted that the whole incident involving the petitioner was concocted and not borne out from the material on record. 7. The learned Counsel appearing for the respondent- Management urged that the Writ Petition be dismissed as no case for interference under Article 227 of the Constitution of India has been made out by the petitioner. He submitted that after the brutal assault on Shri. Shinde by the petitioner, the respondent-Management had no option, but to dismiss the petitioner. According to the learned Counsel, the contention of the petitioner that he was at Mangalvedha on the relevant day has rightly been disbelieved by the Enquiry Officer and the Labour Court. He pointed out that the reply to the charge sheet, which was submitted after almost two months by the petitioner, does not reflect this fact. The learned Counsel submitted that had the petitioner in fact been at Mangalvedha, that would have been his first ground of WP/756/1998 7 defence in the reply to the charge sheet. He further pointed out that besides the account of Shinde in respect of the assault on him, one A.V. Wagh, the Chief Superintendent, ARC Machine Shop, who was also a witness before the Enquiry Officer, has deposed that he saw Shinde being beaten by a group of 7 to 8 persons. The learned Counsel therefore submitted that the assault on Shri. Shinde has been proved. He further submitted that the evidence on record indicated that the petitioner was one of those who assaulted Shri. Shinde and therefore the Enquiry Officer and the Labour Court have rightly disbelieved the contention of the petitioner. The learned Counsel submitted that the Labour Court has rightly refused to grant reinstatement with continuity of service and full back wages to the petitioner in view of the serious nature of the misconduct committed by him. He relied on the judgment of the Supreme Court in the case of Madhya Pradesh Electricity Board v/s. Jagdish Chandra Sharma, reported in 2005 1 CLR 1074 , in support of his contentions. 8. It is true that besides Shri. Shinde’s account of the assault on him, there are no eye witnesses who have corroborated this evidence. The witnesses who have deposed before the Enquiry Officer have stated that there was riot at WP/756/1998 8 the factory gate. The contention of the learned Counsel appearing for the respondent-Management that there was one eye witness to the incident, who was examined before the Enquiry Officer, is not borne out from the evidence on record. The witness, Shri. Wagh, has only stated that while on his way to the factory on the relevant day, his bus was stopped at a distance of 100 ft. from the factory gate and some unknown persons forced him and others to alight from the bus. Shri. Shinde was one of the persons who alighted from the bus and a group of 7 to 8 people ran towards him to catch him. Shri. Shinde ran away and the 7 to 8 persons chased him, caught hold of him and beat him near the trees across the road. The witness has stated that he personally saw Shri. Shinde being beaten but that he could not identify the 7 to 8 persons who beat Shri. Shinde. Thus, there was no eye witness who could state about the involvement of the petitioner in the incident. However, a preponderance of the probability which has been noted by the Enquiry Officer as well as the Labour Court pointed to the involvement of the petitioner in the incident. The contention of the petitioner that he was at Mangalvedha on that day is supported by his brother. However, there is no material on record produced by the petitioner to WP/756/1998 9 indicate that he was on leave on that day. The Enquiry Officer and the Labour Court have therefore rightly disbelieved this version of the petitioner. In any event, had he in fact not been present, he would have denied the incident and/or his presence at the very first opportunity. Despite having replied to the charge sheet after two months of the receipt thereof, the petitioner did not think it necessary to deny his presence at the incident on account of his being at Mangalvedha. Therefore, this entire story put forth by the petitioner has been found to be an afterthought and unbelievable by the Enquiry Officer and the Labour Court. 9. The view of the Labour Court, in my opinion, is neither unreasonable nor perverse. Merely because another view could be possible, it would not be proper to interfere with the Award Part II. In any event, the learned Advocate for the petitioner has not challenged the Award Part I. 10. In the case of Madhya Pradesh Electricity Board (supra), the Supreme Court has held that when an employee breaches the discipline and efficient working of an organization, such as the one before the Supreme Court, it was not open for the Labour Court or the Industrial Tribunal WP/756/1998 10 to take the view that the punishment awarded was shockingly disproportionate to the charge proved. 11. In my view, the reasons mentioned by the Labour Court for accepting the findings of the Enquiry Officer and upholding the order of dismissal are not perverse. Therefore, no interference with the Awards is called for under the writ jurisdiction of this Court. 12. The Writ Petition is dismissed. 13. Rule discharged. 14. No order as to costs.