1 W.P.No.332.99 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 332 OF 1999 Mr.Narayan Gangaram Patil ... Petitioner v/s 1. TATA Engineering & Locomotive Co. Ltd. 2. The Presiding Officer, II Labour Court, Pune. ... Respondents Mr.V.H.Shekdar for the petitioner. Mr.J.P.Cama with Mr.K.S.Bapat, Anupam Surve and Atman Mehta for respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 3RD MARCH, 2011 ORAL JUDGMENT: 1. This petition challenges the awards Part I and Part II in Reference (IDA) No.9 of 1992 which have been passed on 20.3.1995 and 21.7.1998, respectively. 2. The brief facts in the present case arise as follows: The petitioner was working with the respondent No.1 2 W.P.No.332.99 Company from 20.8.1979 as a Welder-cum-Gas Cutter. He was elected as a representative of Telco Kamgar Sanghatana on 11.12.1987. A charge-sheet was issued to him on 29.5.1989 alleging that he had committed acts of misconduct under the Model Standing Orders 24(c), 24(l) and 24(k). It was alleged that he had threatened two co-workers; one who was working on the drilling machine and the other who was operating the crane and fork lift. The allegation against the petitioner was that he had threatened these workmen with dire consequences if they did not obey the writ of the Sanghatana to slow down the production. An enquiry was held pursuant to that charge-sheet. The enquiry officer found the petitioner guilty of the charges levelled against him by his report dated 10.4.1991. The respondent Company accepted the report and dismissed the petitioner from service on 23.4.1991. 3. Aggrieved by his dismissal, the petitioner raised an industrial dispute which was preferred for adjudication before the Labour Court in Reference (IDA) No.9 of 1992. In his statement of claim the petitioner contended that the enquiry which was conducted against him was in violation of the principles of natural justice and fair play. It was pleaded that the enquiry officer had conducted the enquiry in haste 3 W.P.No.332.99 inasmuch as the evidence of the witnesses of the Company was recorded in the absence of the petitioner and his representative. On merits, the petitioner contended that there was no evidence on record to prove that he had committed any acts of misconduct as alleged against him. It was pleaded that the findings of the enquiry officer were therefore perverse. It was also pleaded that even assuming that the enquiry officer was right in concluding that the petitioner had committed acts of misconduct, the punishment imposed on him was too harsh and disproportionate. 4. In its written statement, the Company contended that the petitioner had severely threatened his co-workmen for not slowing down the manufacturing process. It was pleaded that the petitioner and his defence representative had walked out of the enquiry being conducted against the petitioner and, therefore, it could not be said that the enquiry was vitiated. It was then pleaded that the punishment of dismissal was not harsh, considering the misconduct committed by the petitioner. 5. On 20.3.1995 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 4 W.P.No.332.99 justice. The Labour Court held that the examination-in-chief of the first witness of the Company had been recorded by the enquiry officer in the presence of the petitioner and his defence representative. However, while cross-examining this witness, the defence representative of the petitioner left the place of enquiry. Other witnesses for the Company were examined before the enquiry officer and thereafter all the four witnesses for the Company were cross-examined at length by the defence representative. The Labour Court, therefore, concluded that procedurally the enquiry was fair and proper. 6. The workman examined himself before the Labour Court on 12.10.1995. The Assistant Foreman was examined on behalf of the Company. The Labour Court by Award Part II, on 21.7.1998, concluded that the findings of the enquiry officer were not perverse and that the misconduct alleged against the petitioner had been proved at the enquiry. It was further held that the punishment of dismissal was justified in view of the past conduct of the workman. The demand of the petitioner for being reinstated with continuity of service with full back wages was thus rejected. 7. Mr.Shekdar, the learned advocate appearing for the petitioner, has submitted that the enquiry was initiated 5 W.P.No.332.99 because of the complaint received by the Assistant Manager from the two co-workmen of the petitioner, namely, Mr.Dusane and Mr.Kachi. These complaints were not furnished to the workman along with the charge-sheet He submits that the list of witnesses was also not furnished in advance. Dusane and Kachi were members of the rival union and, therefore, their evidence ought not to have been believed by the enquiry officer, according to the learned advocate. He submitted that no independent witness was examined before the enquiry officer nor was any complaint recorded with the police, if indeed the petitioner had threatened either Dusane or Kachi. The learned advocate submitted that the petitioner has been victimized as he was an active member of the Telco Kamgar Sanghatana. According to him, the very fact that the charge-sheet was issued one month after the date of the alleged incident indicates that the entire action of the Company had been initiated to victimize him. The learned advocate then pointed out that neither the motive nor the malafides on the part of the petitioner have been established in the enquiry. The allegations levelled against the petitioner were vague and, therefore, the petitioner was prejudiced while defending himself at the enquiry. He then submitted that the Labour Court has erred in accepting the findings of the enquiry 6 W.P.No.332.99 officer. According to the learned advocate, these findings were perverse and the material on record did not support the conclusions drawn by the enquiry officer. He further submitted that assuming without admitting that the petitioner had committed acts of misconduct, the punishment imposed on him was far in excess of the misconduct, if any, committed by him. 8. The learned counsel for the Company submitted that the misconduct alleged against the petitioner was that he had threatened his co-workmen with dire consequences if they slow did not slow down the work or if they gave optimum production. He submitted that this is a serious misconduct, especially when he is the leader of the union instigating workers to slow down the process of production. He submitted that the petitioner in fact had been charge-sheeted in the year 1988 for certain acts of misconduct. He was then suspended for four days from 23.5.1989. The learned counsel submitted that the petitioner had no compunction to commit acts of misconduct in the present case while the enquiry in respect of the earlier charges-sheet was pending. He submitted that the petitioner had been afforded a reasonable opportunity to defend himself at the enquiry. Although one witness had been examined in the absence of 7 W.P.No.332.99 the petitioner, the defence representative was permitted to cross-examine all the witnesses on a later date as he was present when the examination-in-chief of the witnesses was recorded. The learned counsel pointed out that there is no pleading regarding any prejudice being caused to the petitioner and, therefore, the Labour Court was right in concluding that the enquiry was held in a fair and proper manner. The petitioner had not examined himself before the Labour Court with respect to the enquiry being unfair and improper, submitted the learned counsel. He led evidence only after the Award Part I passed which was in relation to his employment after his dismissal. The learned counsel then submitted that the report of the enquiry officer could be called perverse only when it was based on no material or the findings were inconsistent with the material on record. He pointed out that the Labour Court, for cogent reasons, had accepted the report of the enquiry officer by concluding that the findings were not perverse. He, urged that the punishment of the dismissal is commensurate with the acts of misconduct committed by the petitioner. 9. The charge-sheet issued to the workman on 29.5.1989 alleges that the petitioner had called aside Dusane who was working on the drilling machine at about 7.30 a.m. and 8 W.P.No.332.99 directed him to reduce his production forthwith or to face dire consequences. He also directed Dusane not to go for a lunch break on that day and to attend the meeting of the union in the evening. The charge-sheet then mentions that the petitioner threatened Kachi who was working on the crane and fork lift, to reduce the production levels that he was achieving. The petitioner was afforded an opportunity to defend himself at the enquiry. The defence representative has cross-examined the witness for the Company and, in my opinion, the Labour Court has not committed any error in concluding that the enquiry conducted against the petitioner was fair and proper. 10. As regards the perversity of the findings recorded by the enquiry officer, the Labour Court was of the view that the findings were not perverse and that the punishment was commensurate with the misconduct committed by the petitioner. It has found that the evidence on record reveals that the petitioner had threatened his co-workman and that there was no material on record to establish that there was any enmity between Dusane and the petitioner. The Labour Court has found that although some workmen including Dusane and Kachi were willing to give optimum production, he had threatened the aforesaid two workmen because they 9 W.P.No.332.99 had acted against the union. The Labour Court noted that Dusane and Kachi had not participated in the go-slow despite the threats. All workers had abstained from having their meals in the factory premises is a finding recorded by the Court. Two other witnesses who were supervisors of the petitioner were examined before the enquiry officer to corroborate the incidents which took place with Dusane and Kachi. However, these persons were not eye-witness to the incidents. The Labour Court believed the testimony of the witnesses and has held that the misconduct has been proved. It has found that the petitioner had threatened the workmen as mentioned in the charge-sheet. Therefore, in my opinion, the Labour Court has not committed any error in accepting the findings of the enquiry officer. 11. However, it is necessary to consider whether the punishment imposed on the petitioner is commensurate with the misconduct committed by the petitioner. The Labour Court has found that the service record of the workman did not appear to be unblemished. He was punished on an earlier occasion by suspending him for four days. The Labour Court has then held that the threats meted out to the workman concerned was severe and did not warrant any leniency. 10 W.P.No.332.99 12. In my opinion, the Labour Court has erred in not interfering with the punishment imposed on the petitioner. The charges levelled against the petitioner were under the Model Standing Orders 24(c) – wilful slowing down in performance of work, or abetment or instigation thereof; 24(l) – commission of any act subversive of discipline or good behaviour on the premises of the establishment; and 24(k) – drunkenness, riotous, disorderly or indecent behaviour on the premises of the establishment. All that is proved against the petitioner that he threatened two co-workers. There is material on record to indicate that those two workmen were from rival union and that the petitioner being an active member of one union, was trying to enforce members of the other union to join his union. 13. There is material on record to indicate that the two workmen were not deterred and gave optimum production. In my opinion, merely because the petitioner threatened the workmen, it was not a misconduct for which he should have been dismissed him from service. The petitioner had worked from 1979 i.e. almost 10 years when the incident took place. The only act of misconduct complained against the petitioner on an earlier occasion was when he was charge-sheeted and 11 W.P.No.332.99 suspended for four days. In my opinion, therefore, the petitioner did not deserve to be dismissed from service. However, since the petitioner has committed acts of misconduct, though not serious enough to warrant upon the punishment of dismissal, he deserves some punishment. Therefore, instead of granting reinstatement, in my opinion, it would be appropriate to direct the Company to treat him in service notionally for the purposes of paying him retrenchment compensation and gratuity as of today. The workman is 50 years of age today and he would have another 10 years to work, the retirement age in the establishment being 60 years. There is evidence on record to indicate that the petitioner was earning about Rs.1000/- per month doing fabrication work, which was far less than his remuneration with the Company. 14. In my opinion, therefore, the petitioner would be entitled to retrenchment compensation and gratuity payable as of today, computed on the wages which the petitioner would have been entitled to had he been reinstated in service. The amount shall be paid to the petitioner within eight weeks from today, failing which interest at the rate of 9% per annum would be payable from today till realisation of the amount. 12 W.P.No.332.99 15. Writ petition is allowed in the aforesaid terms. 16. Rule made absolute accordingly. No costs. ..... 13 W.P.No.332.99