WP/948/1999 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.948 OF 1999 Prakash Dattatraya Kambale ... Petitioner V/s. The General Manager, Bajaj Auto Ltd., Akurdi, Pune & Anr. ... Respondents Mr. K.S. Bapat for the Petitioner. Mr. J.P. Cama, Sr. Advocate, with Ms. Subha Kher a/w. Mrs. Prachi Mhatre i/b. M.S. Bodhanwalla & Co. for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 21 ST DECEMBER, 2010. PRONOUNCED ON : 27 TH JANUARY, 2011. JUDGMENT : 1. The order and Award dated 7th October, 1998 impugned in this Writ Petition has been passed by the Presiding Officer, 3rd Labour Court, Pune in Reference (IDA) No.130 of 1993. 2. The petitioner was employed as an “Assembly Fitter” with the respondent- Company from 1984. He claims that he started organizing the workers into a WP/948/1999 2 Trade Union which conduct was not approved by the respondent-Company. The existing norms of production were increased by 30% to 40% from 1st October, 1991. A charge sheet was issued to the petitioner alleging that he had deliberately slowed down the work and had committed acts of willful insubordination. The other charge against him was of distributing hand-bills to his co-workers. By a letter dated 11th December, 1991, the petitioner denied the charges levelled against him. Another charge sheet was issued to him on 20th December, 1991 for the same act of misconduct of deliberately slowing down the work. This charge was refuted once again by the petitioner. An enquiry was held against him. He was found guilty of the acts of misconduct alleged against him. By an order dated 20th July, 1992, the petitioner was dismissed from service. 3. A demand was raised by the petitioner for reinstatement with continuity of service and full back-wages. As the demand was unheeded by the respondent- Company, the petitioner obtained a Reference for adjudication of his dispute under the Industrial Disputes Act, 1947. The dispute was referred to the Labour Court, Pune and registered as Reference (IDA) No.130 of 1993. In his statement of claim, the petitioner pleaded that the enquiry conducted against him was unfair and contrary to the principles of natural justice and fair play. It was contended that documents sought from the respondent-Company were not WP/948/1999 3 produced before the Enquiry Officer. He further pleaded that after the change in the norms of production, the workers took some time to get acquainted with the change in the working systems and to achieve the norms of production. 4. In the written statement, the respondent-Company denied the allegations contained in the statement of claim. The dates on which several warning letters were issued to the petitioner, the dates on which he was suspended for various periods of time and the acts of misconduct for which these suspension orders were issued were enumerated. The respondent-Company justified its action against the petitioner in its pleadings. 5. By Award Part I dated 13th February, 1997, the Labour Court held that the enquiry conducted against the petitioner was legal, fair and proper. Parties thereafter led evidence on the proportionality of punishment imposed on the petitioner. Thereafter, by Award Part II dated 7th October, 1998, the Labour Court held that the misconduct was proved against the petitioner on the basis of the evidence led before the Enquiry Officer. It further concluded that the punishment imposed on the petitioner could not be said to be unwarranted or disproportionate. The Labour Court thus upheld the order of dismissal passed against the petitioner. WP/948/1999 4 6. Mr. Bapat, the learned Advocate appearing for the petitioner, submitted that production norms were set by the respondent-Company unilaterally. No time study was conducted, which is the normal practice, while increasing the production norms. According to Mr. Bapat these norms were raised by 120%. He submitted that the Labour Court has not cared to consider the fact that the Enquiry Officer had disallowed questions which the petitioner wished to ask the witness under cross-examination in respect of the allegation of deliberate slowing down of work. He pointed out that these questions were disallowed by the Enquiry Officer on the ground that there was no charge of slowing down the work against the petitioner. He submitted that the production reports which were placed on record before the Enquiry Officer were not signed by the petitioner. 265 workmen including the petitioner submitted a representation to the respondent- Company to the effect that it was not possible to achieve the norms of production set by the Company as there were several other circumstances which were not factored in while setting the norms of production. The learned Advocate then submitted that the punishment of dismissal was too harsh, even assuming that the misconduct could be said to be proved against the workman. He submitted that the Labour Court has not exercised its powers available under Section 11A of the Industrial Disputes Act while dealing with the proportionality of the punishment imposed. WP/948/1999 5 7. Mr. Cama, the learned Counsel appearing for the respondent-Company, submitted that the production norms were predetermined as can be seen from the statement of claim. He submitted that the petitioner had not pleaded anywhere in the statement of claim that the norms of production fixed by the Company were arbitrary or that they were unachievable. The learned Counsel pointed out that the pleading in the statement of claim with respect to the production norms was that the workman required 4 to 5 months to get acquainted with the new methods of production in order to achieve the norms set by the Company. The learned Counsel then pointed out that the respondent-workman had not cared to step into the witness box before the Enquiry Officer and, therefore, he cannot claim that the enquiry was vitiated. He further submitted that the petitioner has not challenged Award Part I in the present Petition by which the Labour Court had found that the enquiry conducted against the petitioner was not vitiated. The learned Counsel submitted that there was no practice to sign production reports; therefore the contention of the petitioner that the unsigned reports should not be accepted was unsustainable. The learned Counsel then submitted that there was no pleading regarding a deliberate violation of the principles of natural justice during the conduct of the enquiry. There was no pleading or proof of any prejudice being caused to the respondent-workman because of the manner in which the enquiry was conducted, according to Mr. Cama. He submitted that WP/948/1999 6 slowing down the production without any reason amounts to a misconduct as contemplated under the Standing Orders. He further pointed out that the respondent-workman had an opportunity before the Enquiry Officer to explain his production levels and the reasons for not achieving the norms set by the respondent-Company. He failed to avail of that opportunity and, therefore, he cannot contend that the enquiry was vitiated. The learned Counsel then drew my attention to the past record of the petitioner while working with the respondent- Company. A warning letter was issued to him once a caution memo on another occasion and suspension orders for various periods which were issued on at-least six occasions. Mr. Cama urged that with such a record and considering the misconduct proved against the respondent-workman, the Labour Court had committed no error by upholding the dismissal order passed against the petitioner. 8. The Award Part I is not challenged in this Petition. Therefore, it is necessary to proceed on the footing that the enquiry has been held in a procedurally fair and proper manner. The submission of Mr. Bapat that the Enquiry Officer had disallowed certain questions going to the very root of the matter and, therefore, the enquiry is vitiated need not be considered as Award Part I has not been challenged. WP/948/1999 7 9. Mr. Bapat, the learned Advocate appearing for the petitioner, has argued that the production norms were set unilaterally without conducting a time study. It appears from the statement of claim that the workman knew what the production norms were. He had not made any grievance about these production norms. He had, in fact, pleaded that there was change in the working system and, therefore, all workers were not acquainted with the change. The normal production under the new working system could have taken effect within four to five months, according to the workman. The new production norms were set prior to the issuance of the charge sheet on 20th December, 1991. The Labour Court has found that there was sufficient evidence before the Enquiry Officer to establish the charge of deliberate slowing down of the work. At first blush, Mr. Bapat’s submission that production norms increased unilaterally by the Company and could not have been imposed on the workman without any time study being carried out appeared to be attractive. However, as pointed out by Mr. Cama, the learned Counsel for the Company, the workman had not availed of any opportunity to lead any evidence to explain the charge of slowing down of his work. Surprisingly, the workman did not care to step into the witness box before the Enquiry Officer to establish his case that the production norms have been fixed without a time study being conducted or that they had been introduced unilaterally. WP/948/1999 8 10. In his deposition before the Labour Court as well, the workman has not bothered to state his case in respect of the time study not being conducted. Furthermore, there is material on record to indicate that the Supervisor used to maintain the production reports and that there was no practice to sign those reports. 11. The Labour Court has found that seven witnesses were examined by the Company before the Enquiry Officer. It had produced several documents including the production reports for the relevant dates. The Labour Court has found, on the basis of the evidence on record, that the workman had not given any reason for refusing to do the work of Connector Assembly Fitter. It has observed that the workman had not made any grievance in writing to his superior officer with respect to the production norms. Nor was there any material on record to show that the work allotted to him was beyond his control in as much as he was unable to complete the same due to want of raw material or want of sufficient time. The Labour Court therefore accepted the findings of the Enquiry Officer that the petitioner was guilty of habitual negligence under Clause 24(m) of the Model Standing Orders. He was also guilty of willful insubordination for not following the lawful and reasonable orders of his superiors as per Clause 24(a) of the Model Standing Orders. The Enquiry Officer has also found him guilty of distributing WP/948/1999 9 pamphlets in the Company without prior permission of the Manager, thus, violating the discipline and good behaviour in the Company as per Clause 24(l) of the Model Standing Orders. 12. In my opinion, the Labour Court has by a well reasoned order has affirmed the findings of the Enquiry Officer. It has concluded that the workman has committed the misconduct alleged against him in the charge sheet issued by the Company The act of distributing pamphlets may not by itself constitute a misconduct which is so grave as to warrant the punishment of dismissal. However, the misconduct of deliberately slowing down the work is grave. The past service record of the petitioner is not at all complimentary. He has been warned on atleast four occasions and suspended on six occasions for various period. These orders have been passed for varied acts of misconduct. In fact he had been suspended earlier for deliberately slowing down the work, disobeying the lawful orders of his superiors, insubordination etc. There was no improvement in the petitioner’s conduct. Mr. Cama has relied on the judgments of this Court in the case of The General Secretary, B.E.S.T. Workers’ Union vs. The General Manager, The B.E.S.T. Undertaking & Ors., reported in 1997 I CLR 898, and in the case of Maharashtra State Road Transport Corporation, Nanded vs. Bhimrao Ganpatrao Gundle, reported in 1999 II CLR 926, where two learned Single WP/948/1999 10 Judges of this Court have held that no indulgence should be shown to a workman who repeats the misconduct for which he had been punished in the past. As I have stated, the past service record of the workman is replete with disciplinary action taken against him and, therefore, in my opinion, no interference is warranted with the Award of the Labour Court. 13. The Writ Petition is dismissed. 14. Rule discharged. 15. No order as to costs.