WP/1425/1998 : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1425 OF 1998 A.K. Pardeshi .. Petitioner V/s. Pieco Electronics & Electricals Ltd., Pune & Anr. .. Respondents Mr. S.M. Dharap for the Petitioner. Mr. K.S. Bapat for Respondent No.1. CORAM :SMT. NISHITA MHATRE, J. RESERVED ON :26 TH JULY, 2010. PRONOUNCED ON:25 TH AUGUST, 2010. JUDGMENT: 1. The challenge in this Writ Petition is to the Award Part I dated 4th February, 1994 and Award Part II dated 30th December, 1994 passed by the Presiding Officer of the Labour Court, Pune in Reference (IDA) No.61 of 1990. By the Award Part I dated 4th February, 1994, the Labour Court has held that the enquiries held against the Petitioner were fair and WP/1425/1998 : 2 : proper and that the charges levelled against the Petitioner had been proved in the enquiries. The Labour Court further concluded that the findings of the Enquiry Officer were not perverse. By Award Part II dated 30th December, 1994, the Reference (IDA) No.61 of 1990 was rejected as the Labour Court found that the punishment of dismissal imposed on the Petitioner was not disproportionate to the acts of misconduct proved against him. 2. The facts giving rise to the present Writ Petition are as follows : 3. A charge sheet was issued to the Petitioner on 11th June, 1983 in which it was alleged that he had willfully damaged the property of the Company and had committed an act subversive of discipline or good behaviour on the premises of the establishment. These were enumerated as misconducts under Clauses 24(q) and 24(l) of the Certified Standing Orders governing the service conditions of the employees in the 1st Respondent-Company. The WP/1425/1998 : 3 : Petitioner replied to the charge sheet on the next day denying the charges levelled. An enquiry was held against the Petitioner which was completed on 8th March, 1986, when the Enquiry Officer submitted his findings to the disciplinary authority. During the pendency of this enquiry, a second charge sheet was issued to the Petitioner on 28th February, 1984 alleging that the Petitioner had threatened Shri. Bali, one of the officers of the Company, when he was refused an inter departmental pass. It was further alleged that he rushed into the office of this Manager and abused him and then obstructed his path out of the office while pushing and nudging him with his elbow. A third charge sheet was issued on 29th February, 1984 alleging that at 3:50 p.m. on the same day, i.e. on 28th February, 1984, he had again barged into the office of the said Manager and had abused him. In both the second and third charge sheets, the acts of misconduct alleged against the Petitioner were under Clauses 24(k) and 24(l), which read as under : WP/1425/1998 : 4 : “Clause 24(k): Drunkenness, riotous, disorderly or indecent behaviour on the premises of the establishment; Clause 24(l) : Commission of any act subversive of discipline or good behaviour on the premises of the establishment.” 4. These charge sheets were also subject to an enquiry which was completed on 8th March, 1986. The Petitioner was dismissed from service on 15th April, 1986 as the Respondent-Company accepted the findings recorded by the Enquiry Officer in both the enquiries that the Petitioner was guilty of the acts of misconduct alleged against him. 5. The Petitioner raised an industrial dispute for reinstatement in service with continuity and full back-wages. This dispute was referred for adjudication before the Labour Court, Pune in Reference (IDA) No.61 of 1990. The parties to the Reference filed their respective pleadings. As mentioned earlier, the Labour Court held that the WP/1425/1998 : 5 : enquiries in respect of the charge sheet dated 11th June, 1983 and the other enquiry in respect of other charge sheets were fair and proper. The Labour Court also concluded that the Enquiry Officer had not conducted the enquiries hastily, as alleged by the Petitioner. The Labour Court considered the findings recorded by the Enquiry Officer and concluded that they were based on the evidence led before him. Significantly the Petitioner did not lead any evidence in support of his claim that the enquiry held against him was not fair and proper or that the findings of the Enquiry Officer were perverse. Thus, the Labour Court concluded that both the enquiries held against the Petitioner were fair and proper. 6. Evidence was led thereafter on the question of proportionality of punishment imposed on the Petitioner. The Labour Court considered the evidence recorded and the seriousness of the charges levelled against the Petitioner. Positing its findings on these two factors, the Labour Court WP/1425/1998 : 6 : concluded that the punishment of dismissal was warranted in the facts and circumstances of the present case and, therefore, rejected the Reference. 7. Mr. Dharap, the learned Advocate appearing for the Petitioner, submitted that the malafide attitude of the Respondent-Company was writ large in the present case. According to him, the deliberate action of the Respondent-Management to issue one charge sheet after the other was nothing short of victimization. He submitted that the Petitioner was not offered a proper opportunity to defend himself in the first enquiry as no adjournment was granted when the Petitioner had pointed out that his representative was unable to be present at the time of enquiry on that day. Instead of granting an adjournment, the enquiry was completed, Mr. Dharap pointed out. He then submitted that the charge sheets issued against the Petitioner were vague and based on conjectures and surmises which also displayed the malafides of the WP/1425/1998 : 7 : Respondent-Company. The learned Advocate pointed out that the charges alleged against the Petitioner in the first enquiry were not proved as at the relevant time he was not present near the machine. He drew my attention to the evidence of the reliever, Mahajani, who had admitted that he was attending the machine at the relevant time. According to Mr. Dharap, the first enquiry was nothing but a farce and was therefore vitiated. In respect of second enquiry, the learned Advocate pointed out that the Petitioner was not permitted to be represented by a person of his choice at the enquiry. He submitted that this is in violation of the provisions of Section 20(1)(d) of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, (for short “the MRTU & PULP Act”), which provides that the workman can be defended by a person of his choice. He also pointed out that there was no written complaint from Shri. Bali, i.e. the Officer against whom the Petitioner had allegedly hurled abuses. The learned Advocate then submitted that it WP/1425/1998 : 8 : was the duty of the Labour Court to scan the evidence of the witnesses examined before the Enquiry Officer while considering the aspect of perversity of the findings of the Enquiry Officer. He submitted that the evidence of Shri. Bali recorded in the second enquiry is not credible at all, as there are material omissions in his deposition. He, therefore, submitted that the Labour Court has erred while declaring that the findings recorded by the Enquiry Officer were not perverse. As regards the punishment, Mr. Dharap pointed out that the Petitioner had an unblemished service record since 1967 and it was only because the Petitioner developed interest in the trade union activities and became an office bearer of the Union that the charge sheets were issued to him in order to victimize him. He, therefore, submitted that even assuming the charges levelled against the Petitioner had been proved at the enquiry, the punishment of dismissal was not warranted. WP/1425/1998 : 9 : 8. Mr. Bapat, the learned Advocate for the Respondents, urged that there are no infirmities in the Awards passed by the Labour Court requiring this Court to exercise its extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. He submitted that this Court cannot re-appreciate the evidence on record while exercising its writ jurisdiction. He pointed out that the evidence on record in the first enquiry unmistakably led to the conclusion that the workman was guilty of the misconduct of bending the arbour deliberately, thus leading to a stoppage of work. He pointed out that the case of the Petitioner that he was not near the machine at the relevant time is not correct. According to the learned Advocate, the Petitioner had not denied his presence near machine when it was damaged at the first available opportunity i.e. when he replied to the charge sheet. The learned Advocate submitted that this defence is clearly an afterthought on the part of the Petitioner and, therefore, cannot be accepted. The learned Advocate then pointed out WP/1425/1998 : 10 : that the Petitioner had been afforded every opportunity to defend himself at the enquiry and that it was for this reason that the Labour Court had concluded that the enquiry conducted against the Petitioner was fair and proper. As regards the second charge sheet, Mr. Bapat submitted that the enquiry in respect of this charge sheet was also conducted in a fair and proper manner and in consonance with the rules of natural justice. He submitted that the workman was represented by a co- worker at the enquiry and that his initial choice of being represented by one Shelke could not be acceded to since Shelke had been dismissed from service. According to him, the Standing Orders permit a delinquent employee to be defended by a co-workman and not by a dismissed workman. He, therefore, submitted that the contention that the provisions of Section 20(1)(d) of the MRTU & PULP Act had been violated in the second enquiry has not been substantiated. According to him, unless Mr. Shelke was authorized to appear in the enquiry to represent the workman either by the Union or by the WP/1425/1998 : 11 : State Government, he was not entitled to represent the workman. According to the learned Advocate, the enquiry cannot be said to be vitiated on this ground. He has placed reliance on the Judgment of the Supreme Court in the case of Crescent Dyes & Chemicals Ltd. vs. Ram Naresh Tripathi, reported in (1993) 2 SCC 115, in support of his contentions. On merits, he pointed out that in both the enquiries, the Enquiry Officer and the Labour Court have considered the evidence on record and have arrived at a plausible conclusion. According to him, when there is no perversity in the findings arrived at either by the Enquiry Officer or by the Labour Court, this Court should not interfere in the matter while exercising its writ jurisdiction. He places reliance on the Judgments of the Supreme Court in the cases of Usha Breco Mazdoor Sangh vs. Management of Usha Breco Ltd. & Anr., reported in (2008) 5 SCC 554, Mahindra & Mahindra Ltd. vs. N.B. Narawade, reported in 2005 I CLR 803 , B.C. Chaturvedi vs. Union of India & Ors., reported in (1995) 6 SCC 749, and M.P. Electricity Board vs. WP/1425/1998 : 12 : Jagdish Chandra Sharma, reported in (2005) 3 SCC 401. 9. In the first enquiry, the allegations against the Petitioner were that he had willfully damaged the arbour thereby leading to a stoppage of work. The case of the Petitioner is that at the relevant time when the incident was alleged to have taken place, he was not near the machine and, in fact, a reliever was working in his place. The reliever has been examined by the Petitioner as his witness who has stated that he had relieved the Petitioner. This witness Mahajan has deposed that he had relieved the Petitioner between 10 a.m. and 11 a.m. on that day. The incident allegedly occurred at 10:30 a.m., as mentioned in the charge sheet. However, this defense of the workman that he was not at his work place when the incident occurred seems to be an afterthought. The Petitioner had replied to the charge sheet within two days. However, besides denying the allegation that he had deliberately bent the arbour, there is not even a WP/1425/1998 : 13 : whisper about him not being present when the incident occurred. The Labour Court has rightly rejected this contention and has found that the findings arrived at by the Enquiry Officer were correct. 10. The other issue raised by Mr. Dharap in respect of this enquiry was that the Petitioner was not permitted to cross examine the witnesses of the Respondent-Management. However, this submission is not supported by the enquiry proceedings which are annexed to the Writ Petition. All the witnesses for the Respondents were available for cross examination by the Petitioner and/or his defense representative. In fact, they have been exhaustively cross examined by Shelke, who was the defense representative. Therefore, in my opinion, this submission is unsustainable. 11. In so far as the second enquiry is concerned, I need not go into the issue raised by Mr. Dharap as to whether a dismissed workman could represent his WP/1425/1998 : 14 : co-workman at an enquiry. This is because the Petitioner in the present case has been represented at the second enquiry by a person of his choice, albeit a second choice. I have perused the enquiry proceedings and I have found that no prejudice has been caused to the Petitioner by not being able to avail of the services of Shelke as his defense representative at the enquiry. The person who ultimately defended him has done so competently and, therefore, no prejudice has been caused to the Petitioner by not being represented by Shelke. 12. As regards the second enquiry, it has been argued by Mr. Dharap that such an incident did not take place at all and that the Petitioner has been wrongly implicated. 13. On perusing the enquiry proceedings, I found that there is sufficient evidence on record to indicate that the incident had occurred. The victim, Shri. Bali was examined by the Respondent-Management in the enquiry. He has been exhaustively cross WP/1425/1998 : 15 : examined by the defense representative of the Petitioner. Besides Shri. Bali, other witnesses were also examined in this enquiry to establish the charge. 14. In my opinion, the Labour Court has considered all aspects of the matter and has correctly concluded that the findings of the Enquiry Officer were not perverse. Therefore, there is no need to interfere with the Award Part I. 15. Evidence was led by the Petitioner on the proportionality of the punishment imposed on him. The evidence on record indicates that the workman was employed for 19 years and that his service record was unblemished. It is submitted by Mr. Dharap that the misconduct, if at all established, against the Petitioner was not so grave as to warrant the punishment of dismissal. He submitted that the punishment must be commensurate with the misconduct established against a delinquent workman. WP/1425/1998 : 16 : 16. The Labour Court has observed that damaging machinery of the Management and use of abusive language coupled with the assault on Shri. Bali could only result in dismissal of the workman. Causing damage to the machinery is a serious misconduct. This misconduct has been established against the Petitioner by cogent evidence on record before the Enquiry Officer. Although there was no eye-witness to the incident, the circumstantial evidence which is on record, amply proves that the Petitioner has willfully and deliberately damaged the arbour. His alibi that he was not present when the incident occurred and was replaced by a reliever is unbelievable as that was not his first reaction when he replied to the charge sheet. 17. In the case of Usha Breco Mazdoor Sangh (supra), the Apex Court considered its earlier judgment in the case of The Workman of M/s. Firestone Tyre and Rubber Company of India (Pvt.) Ltd. vs. The Management & Ors., reported in (1973) 1 SCC 813, and held that the Labour Court can WP/1425/1998 : 17 : interfere with the decision of the Management under Section 11A of the Industrial Disputes Act. However, such interference is not permitted only because two views are possible. The Supreme Court has observed that the Labour Court cannot overturn the decision of the Management on ipse dixit and that judicial discretion cannot be exercised whimsically or capriciously. In short, the Apex Court has held that the Labour Court must review the findings of the Enquiry Officer judiciously and not as an Appeal Court in order to substitute the Management’s view of the misconduct with its own view. Similarly in the case of Mahindra & Mahindra Ltd. (supra), the Apex Court has observed that the discretion to be exercised under Section 11A of the Industrial Disputes Act is available only when the punishment is disproportionate to the gravity of the misconduct. The Labour Court on the basis of the evidence on record in the present case has found that the misconduct is serious and has therefore not interfered with the punishment of dismissal. A similar view has been expressed by the Supreme Court WP/1425/1998 : 18 : in the case of M.P Electricity Board (supra) and B.C. Chaturvedi (supra). 18. On the other hand, Mr. Dharap relied on the judgment of the Supreme Court in the case of Palghat BPL & PSP Thozhilali Union vs. BPL India Ltd. & Anr., reported in 1996 I CLR 368 , where the Supreme Court was concerned with the case where the Labour Court had found that the officers of the Company were attacked by the workers by pelting stones at them. They sustained grievous injuries. It was found that the delinquent workmen were not the only members of the assembly of workmen standing at the bus stop where the incident occurred. The Labour Court exercised its discretion under Section 11A of the Industrial Disputes Act and awarded reinstatement with 25% back-wages. The Supreme Court observed as follows : “6. ..................................... In view of the surging circumstances, viz., the workmen were agitating by their collective bargain for acceptance of their demands and when WP/1425/1998 : 19 : the strike was on the settlement during conciliation proceedings, though initially agreed to, was resiled later on. They appear to have attacked the officers when they were going to the factory. Under these circumstances the Labour Court was well justified in taking lenient view and in setting aside the order of dismissal and giving direction to reinstate the workmen with a cut of 75% of the back wages upto the date of the award. In our considered view, the discretion exercised by the Labour Court is proper and justified in the above facts and circumstances. The High court had not adverted to these aspects of the matter. It merely had gone into the question whether the act complained of is a misconduct.” 19. In my opinion, this Judgment does not advance the case of the Petitioner as the Labour Court has rightly concluded that he had willfully damaged the property of the employer and had also abused and assaulted one of the Managers of the Company. There is no material on record to establish that these acts of misconduct were committed due to grave provocation. There are no mitigating circumstances which would warrant a lesser punishment. The preponderance of probabilities established that the WP/1425/1998 : 20 : Petitioner has committed the misconduct alleged against him. 20. The Writ Petition is dismissed. 21. Rule discharged. 22. No order as to costs.