WP/3989/1998 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3989 OF 1998 V.R. Thombre ... Petitioner V/s. Pieco Electronics & Electricals Ltd & Anr. ... Respondents Mr.S.M. Dharap for Petitioner Mr.K.S. Bapat for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED : OCTOBER 27, 2010 JUDGMENT: 1. The petitioner was employed with the respondent company. A dispute arose between the union representing the workers and the respondent in 1982-1983 in respect of certain demands raised by the union. According to the Petitioner, the members of the Philips Employees Union were harassed by the respondent by issuing false chargesheets, initiating disciplinary action with an ulterior motive, etc. The petitioner was issued a chargesheet on 4.7.1983 in which it was alleged that he had abused some officers in filthy, vulgar language and that he had fisted one of the officers on his neck. He was therefore charged with having committed acts of misconduct under Standing Order 24(k) and 24(l) of the Certified Standing Orders. The enquiry against the petitioner commenced on 5.8.1983. During the pendency of this enquiry, a second chargesheet was issued to the petitioner on 19.11.1984. It WP/3989/1998 : 2 : was alleged that the petitioner had, on 18.11.1984, abused one of his co-employees and had hit him repeatedly on his face and neck. It was also alleged that he had abused and threatened his officers and supervisors in the department in which he was working. The enquiry in respect of this chargesheet progressed simultaneously with the earlier enquiry. 2. The enquiry officer submitted his report in respect of the first chargesheet on 31.3.1987 although the recording of evidence was completed and the Petitioner had filed his statement of defence by 25.10.1985. The report in respect of the second chargesheet was submitted on 24.4.1987. The enquiry officer had found the petitioner guilty of the acts of misconduct alleged against him in both the chargesheets. The respondent company on considering the reports of the enquiry officer and the past service record of the petitioner dismissed him from service on 19.5.1987. Since there was a reference pending adjudication before the Industrial Tribunal, approval was sought by the respondent u/s 33(2)(b) of Industrial Disputes Act of the dismissal order passed against the Petitioner. In the meantime, the petitioner approached the machinery available under the Industrial Disputes Act and obtained a reference for adjudication of his demand for reinstatement and continuity of service and full backwages before the Labour Court. The approval application was granted by the Industrial Tribunal. 3. Pleadings were filed by both the petitioner as well as the respondent in the reference before the Labour Court. The petitioner contended that the enquiries held against him were not conducted in a fair and proper manner. He also pleaded that the Company had taken action against him only because he was a member of a WP/3989/1998 : 3 : particular union. He denied the charges and contended that the findings of the enquiry officer were perverse. 4. The Labour Court accepted the findings of the enquiry officer in both the enquiries and by award part I dated 4.1.1995 concluded that there was no need to interfere with the findings as they were not perverse. The Petitioner then led evidence with respect to his past service record and his lack of employment during the period after his services were dismissed. The Labour Court by award part II dated 2.9.1995 held that there was no need to take a lenient view in the matter as the punishment of dismissal was not shockingly disproportionate in view of the misconduct committed by the petitioner. Being aggrieved by the awards of the Labour Court, the petitioner has approached this Court in its writ jurisdiction. 5. Mr.Dharap, appearing for the petitioner, has submitted that the Respondent had a design to harass the members of a particular union. According to hm, the action taken by the respondent against the petitioner revealed the malafide attempt on the part of the respondent to involve the petitioner in some misconduct or the other and to issue chargesheets to him, one after the other. He pointed out that although the enquiry in respect of first chargesheet was concluded on 25.10.1985, the report of the enquiry officer was not submitted till 31.3.1987. No explanation whatsoever was given for not furnishing the report for more than one year. He then submitted that the issuance of the second chargesheet revealed the ulterior motives of the Respondent to ensure that the Petitioner was dismissed from service. He submitted that although the first chargesheet mentioned that the officer Godbole was abused and assaulted by the petitioner, the statement of Godbole recorded before WP/3989/1998 : 4 : the enquiry officer discloses that he was abused and the workman had pelted stones on him, one of which hit him on his right leg. He has stated that another officer Murthy disclosed to him that he had seen the person who had assaulted him on his neck. Murthy was also examined and confirmed that he had seen the petitioner assault Godbole on the neck at about 11.15 am. The respondent had examined one Madiwale who was in charge of the department where the petitioner was employed. He deposed that the petitioner was not on duty at the relevant time i.e. around 11.15 am. Another witness Vaid has stated that he saw the petitioner with a mob which had gathered outside his office, through the glass while sitting in his office. Mr.Dharap pointed out that this story of the officer Vaid was fair fetched and concocted as it would be impossible to see a person in a mob through a glass screen. The learned advocate urged that the evidence on record did not establish the misconduct alleged against the workman. He further submitted that the findings of the enquiry officer are mere conjectures and surmises. According to him, the preponderance of probabilities was not established and the report of the enquiry officer was perverse. He, therefore, submitted that the charge had not been established against the petitioner. As regards the second chargesheet, Mr.Dharap submitted that the allegation was that the Petitioners had hit one of his co-employees, Shinde, as he had changed his membership from the Philips Employees' Union to another union. He pointed out that the injury if at all inflicted on Shinde was not serious. According to Mr.Dharap, the evidence of the other witnesses led before the enquiry officer was merely an improvement on Shinde's testimony. He therefore submitted that the chargesheet had not been proved and that the petitioner had been wrongly charged for acts which he had not committed. WP/3989/1998 : 5 : 6. Mr.Bapat appearing for the respondent on the other hand submitted that this Court in its writ jurisdiction should not reappreciate the evidence led by the parties before the enquiry officer. He urged that the jurisdiction which this Court is exercising in the present writ petition is not its appellate jurisdiction but its supervisory jurisdiction, which is circumscribed by the powers of the Court under Article 227 of the Constitution of India. He therefore submitted that there are no infirmities in the impugned Awards. He drew my attention to the fact that there was no material on record to indicate that the Petitioner was an office bearer or an active worker of the union and, therefore the question of victimisation does not arise. He urged that once the misconduct is established, victimisation is an antithesis of the same. He then submitted that abusing the officers of the company and assaulting them cannot be treated as acts of minor misconduct. He submitted that the punishment imposed on the workman is not disproportionate, the workman having worked only for 5 years prior to his dismissal from service. He then pointed out that there were no improvements in the evidence of the witnesses of the company nor were the statements made by them unsupported or uncorroborated. He, therefore, submitted that the petition be dismissed. 7. By award part I, the Labour Court has dealt with the issue as to whether the enquiry held against the workman was fair and proper. The Labour Court has not accepted the workman's contention that the chargesheets issued to him were vague. The Labour Court on considering the enquiry proceedings has found that sufficient opportunity was given to the petitioner to defend himself. He has examined three witnesses at the enquiry. The workman was also defended by a person of his choice. WP/3989/1998 : 6 : The Labour Court therefore held that the enquiry had been conducted in a fair and proper manner and in accordance with the principles of natural justice. In my opinion, Mr.Dharap has been unable to point out any infirmities in these findings. Therefore, the award part I must be upheld. 8. The Labour Court while dealing with the issue as to whether the findings of the enquiry officer were perverse has observed that on the basis of the preponderance of probabilities the evidence led before the enquiry officer unmistakably proved that the charges levelled against the petitioner had been proved. The submission of Mr.Dharap that the charges have not been established and that the Labour Court has not reappreciated the evidence on record as required u/s 11A, is unsustainable. The Labour Court is empowered, u/s 11A, to reappreciate the evidence led before the enquiry officer. However, it has been held by the Supreme Court in the case of Mahindra & Mahindra Ltd. vs. N.B. Narawade, 2005 I CLR 803 that the Labour Court can exercise such discretion as is available u/s 11A of the Industrial Court only when the punishment imposed on the workman is disproportionate to the gravity of the misconduct established against him. 9. The Labour Court in the present case has considered the charges levelled and the evidence on record and concluded that the findings of the enquiry officer are justified. It has held that the charges of abusing and threatening co-workers and superiors have been proved on the basis of the evidence led before the enquiry officer by the Respondent. Although the Labour Court has not discussed the evidence of each witness in great detail, it is evident that it has considered the preponderance of probabilities and concluded that the findings of the enquiry officer WP/3989/1998 : 7 : were not perverse. As observed by the Supreme Court in Usha Breco Mazdoor Sangh vs. Management of Usha Breco Ltd. & anr., (2008) 5 SCC 554 the Labour Court must review the findings of the enquiry officer judiciously and not whimsically or capriciously. The findings should not be reviewed by acting as a Court of appeal, in order to substitute its own view for that of the management. 10. In my opinion, the Labour Court has correctly approached the issue as to whether the findings are perverse and held that the charges have been established against the workman. Mr.Dharap has attempted to establish that the findings recorded by the Enquiry Officer which have been accepted by the Labour Court are perverse. For this, he wanted me to scrutinise the entire evidence and consider whether the misconduct was proved when a different view or conclusion was possible. It is trite that the Writ Court must consider whether the findings recorded are based on a preponderance of probabilities. In my view, the Labour Court has not committed any error apparent on the face of the record nor are the findings perverse. 11. The submission of Mr.Dharap that the workman has been victimised on account of his being member of a particular union is not borne out from the evidence on record. The case of victimisation must be established to the hilt. It is well settled that victimisation is the antithesis of proved misconduct. The Petitioner has failed to demonstrate that he has been victimised. In the present case, the punishment of dismissal cannot be considered as shockingly disproportionate. The charge of abusing his superior officers and assaulting them has been proved. Such charges warrant the punishment of dismissal and, therefore, in my view, the Labour Court was right in not imposing a lesser punishment. It appears that there were no mitigating WP/3989/1998 : 8 : circumstances warranting any change in the punishment imposed, considering the past service record of the Petitioner. The present petitioner has not established any reason for me to interfere with the findings recorded by the Labour Court which are based on the evidence on record. 12. In these circumstances, the award part II of the Labour court is also upheld. The petition is dismissed. Rule discharged. No order as to costs.