WP/266/1999 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.266 OF 1999 Sarva Shramik Sanghatana, Pune ... Petitioner V/s. IEC Airr Tools Pvt. Ltd., Pune & Anr. ... Respondents Ms. Seema Sarnaik for the Petitioner. Mr. S.B. Deshmukh for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. DATE : 9 TH DECEMBER, 2010. ORAL JUDGEMENT : 1. The petitioner-Union has filed the present Writ Petition to impugn Awards dated 16th September, 1994 and 21st July, 1998 passed by the Labour Court, Pune in Reference (IDA) No.262 of 1986. The Reference has been rejected by the Labour Court. For the sake of convenience, the petitioner and the respondent No.1 will hereinafter be referred to as “the Union” and “the Company”, respectively. 2. The Union started representing the workmen engaged in the Company from 1984. A Charter of Demands was served on 27th April, 1984 by the Union on the Company. After the demands were raised, according to the Union, the Company engaged in unfair labour practices by obtaining signatures of the workmen on blank sheets of paper and using them as letters of resignation from the WP/266/1999 2 membership of the Union. The majority of the workmen, who were members of the Union, protested against the acts of the Company and hoisted red flags at the gate of the factory. On 7th May, 1984, a majority of the workmen proceeded on a token strike between 7:00 A.M. and 10 A.M. According to the Union, the strike was peaceful and all the workmen returned to resume their duties at 10:00 A.M. The Company, however, issued charge sheets to some workmen alleging that they had committed acts of misconduct under Model Standing Order 24(b) i.e. proceeding on an illegal strike or abetting, inciting, instigating or acting in furtherance thereof. It was also alleged in the charge sheet that the workmen had used force to compel those workmen who were willing to work to remain out of the factory premises and also abused them. It was further alleged that the workers had shouted slogans against the Company and had threatened and attempted to stop the working of the factory illegally. These charge sheets were issued mainly to the active workers of the Union which had led the agitation on 7th May, 1984. The concerned workmen submitted their replies to the charge sheets denying the allegations contained in the charge sheets. As the explanation tendered by the workmen was not acceptable to the Company, an enquiry was instituted against the five workmen namely Sudam Vaman Jadhav, Sudhakar Shivram Kumbharkar, Raghunath Balwant Patil, Raghunath Chandrasen Sonatakke and Laxman Shripati Gund. WP/266/1999 3 3. According to the Union, the workmen were immediately suspended on 18th May, 1984 and soon thereafter the enquiry was held against these workmen. According to the Union, the Enquiry Officer refused to permit the Divisional Secretary of the Union to defend the delinquent workmen at the enquiry and closed the enquiry on the same day. This action of the Company was challenged by the Union by preferring Complaint (ULP) No.205 of 1984. The Industrial Court, Pune held that the enquiry was vitiated and allowed the complaint. The Company, therefore, appointed another Enquiry Officer to hold an enquiry against the workmen. Five separate enquiries were conducted and it was decided to read the evidence in the enquiry against Sudam Vaman Jadhav as evidence in the other enquiries. On completion of the enquiries, the Enquiry Officer submitted his reports holding that the delinquent workmen were guilty of the alleged acts of misconduct. The Company, therefore, dismissed the workmen on 8th July, 1985. 4. The Union raised an industrial dispute for reinstatement and continuity of service and full back-wages in respect of the aforesaid workmen. A Reference was made for adjudication of this dispute before the Labour Court, Pune and it was registered as Reference (IDA) No.262 of 1986. In the statement of claim filed by the Union, it was contended that the enquiries held against the workmen were in breach of the principles of natural justice and fair play. It was contended that the action had been initiated against the concerned workmen only to victimize them as they were active members of the Union which was agitating for better service WP/266/1999 4 conditions for the workmen. It was contended that the Enquiry Officer had refused permission to the workmen to ask certain questions to the witness of the Company. According to the pleadings contained in the statement of claim, the Enquiry Officer was biased and although the workmen participated in the enquiries, no attempt was made by the Enquiry Officer to abide by the principles of natural justice and fair play. The Union pleaded that the five workmen had endeavoured to secure employment elsewhere after their dismissal. The Company had refused to issue them service certificates and, therefore, their efforts to secure employment proved to be futile. 5. The Company denied all these allegations in its written statement filed on 5th January, 1987. 6. The Labour Court, Pune passed Award Part I on 16th September, 1994. It held that procedurally the enquiry conducted against the workmen was fair, legal and proper. The Union then examined the workmen before the Court, except Raghunath Chandrasen Sonatakke as he had settled his dispute with the Company. 7. These workmen deposed either that they were unemployed or that they were employed on a casual basis where they earned a certain amount which was just enough to keep their body and soul alive. By Award Part II dated 21st July, WP/266/1999 5 1998, the Labour Court dismissed the Reference. It concluded that the findings of the Enquiry Officer were not perverse as the workmen had proceeded on a strike, which was not legal. It was further observed that there was sufficient evidence on record to establish that there was a token strike observed by the workmen at the behest of the Union, as the Charter of Demands submitted by the Union had not been considered by the Company. The Labour Court recorded the fact that the Company had terminated the services of eight workmen, five of whom had challenged their dismissal from service. It noted that the three workmen who were examined on behalf of the Company at the enquiry had deposed that they were stopped from entering the factory premises by groups of people, although they wanted to report for work. They have further deposed that slogans were shouted and that the police were called by the Company. Accordingly, the Court concluded that the four workmen concerned in the Reference had indulged in riotous, disorderly and indecent behaviour on the premises of the establishment which had been proved at the enquiry. The Court then observed that none of the delinquent employees had deposed before the Court that they were not present when the crowd had gathered outside the factory gate on the relevant date. A finding has been recorded on the basis of material on record that there was some indecent and disorderly behaviour on the part of the workmen, including the delinquent employees. In these circumstances, it was held that the charge sheet had been proved at the domestic enquiry by the Management. The charge of WP/266/1999 6 victimization made by the Union was not accepted by the Labour Court. The Labour Court also noted that the stoppage of production between 7:00 A.M. to 10:00 A.M. on 7th May, 1984 had caused inconvenience to the Company. A presumption was drawn by the Court that the past service record of these employees concerned in the Reference was clean and unblemished as no adverse record had been produced by the Company. Raghunath Balwant Patil had been employed for over 10 years before the strike whereas the other workmen were employed for about 4 – 5 years with the Company. 8. Ms. Sarnaik, the learned Advocate for the Union has criticized the Awards by submitting that the Labour Court has erred in holding that there was no bias on the part of the Enquiry Officer and that he had recorded the evidence correctly. She submits that the Enquiry Officer had not afforded adequate opportunity to the workmen to be represented by a person of their choice; he had also not permitted several questions which the workmen wanted to ask to the witness of the Company. She, therefore, submits that the enquiry ought to have been set aside by the Labour Court as it was vitiated. As regards Award Part II, the learned Advocate submits that the Labour Court has arrived at improper conclusions. According to her, there was no evidence on record to prove that the workmen concerned had committed any acts of misconduct. She submits that although the charge sheet indicates that the workmen have been charged for the misconduct under 24(b) of the Model Standing Orders, the Labour Court has held that they WP/266/1999 7 were guilty of acts of misconduct under 24(k) of the Model Standing Orders. According to Ms. Sarnaik, the witnesses of the Company have not identified the workmen who were concerned in the Reference and instead they had merely stated that all the workmen were agitating at the factory gate. She, therefore, submits that the presence of the workmen at the factory gate between 7:00 A.M. and 10:00 A.M. on 7th May, 1984 has not been proved by the Company. She further submits that even assuming without admitting that the workmen had committed the alleged acts of misconduct, these acts were not so serious as to warrant the punishment of dismissal. 9. The learned Advocate for the Company submits that the Labour Court has passed an appropriate order in the circumstances of the case. He points out that the Award of the Labour Court is well reasoned and based on legal inferences drawn from the material on record. He submits, therefore, that this Court should not interfere with such an Award in its writ jurisdiction. He further points out that the workmen had proceeded on an illegal strike and had, therefore, been dismissed. Apart from this, they had indulged in several other acts of misconduct including using force and threats, to prevent those workmen who wanted to report for duty at the factory gate. They had compelled them to join the illegal strike. According to him, once the Enquiry Officer had found that the workmen had indulged in riotous, disorderly and indecent behaviour on the premises of the establishment on the basis of the evidence on record, the Labour Court had WP/266/1999 8 chosen not to interfere with the punishment imposed since the charges against the workmen had been established by cogent evidence. He submits that the charges were so grave as to warrant a punishment of dismissal and, therefore, the Labour Court has rightly not interfered with the punishment. 10. The Labour Court by Award Part I has held that the enquiry was conducted in accordance with the principles of natural justice. It appears from the Award that based on the proceedings of the enquiry, the Labour Court has found that the workmen were permitted to be represented at the enquiry by a defence representative of their choice. They were also granted an opportunity to cross examine the witnesses of the Company. In these circumstances, the Labour Court has held that procedurally the departmental enquiry was fair and proper. In my opinion, there is no need to interfere with this Award of the Labour Court. 11. This takes me to the Award Part II. On a perusal of this Award, in my opinion, the Labour Court has completely erred in dismissing the Reference. The Labour Court has concluded that the workmen had indulged in riotous, disorderly and indecent behaviour on the premises of the establishment when such a charge was not framed against them. The only charge levelled against the workmen in the charge sheet was under 24(b) of the Model Standing Orders, namely, inciting, going on an illegal strike or abetting, inciting, instigating or acting in furtherance thereof. Therefore, the Labour Court could not have found the workmen guilty of WP/266/1999 9 charges which had not been levelled against them at the enquiry. The narration of the charge, however, indicates that the workmen had prevented willing workers from entering the factory premises by using force and abusive language. The Labour Court surprisingly held that none of the employees had deposed before it that they were not present in the crowd before the factory gate and, therefore, the Company’s case must be accepted. The question of the workmen deposing before the Labour Court in respect of the charge of misconduct did not arise as the enquiry was found to be procedurally correct. The Labour Court was only called upon to consider the enquiry proceedings and decide whether the findings were perverse. Thus, there was no occasion for the workmen to step into the witness box before the Labour Court to deny the charges levelled against them. However, it appears from the evidence on record that not a single witness, who was examined on behalf of the Company before the Enquiry Officer, has identified these workmen in the crowd. Therefore, the findings of the Enquiry Officer are perverse. 12. The main allegation against the workmen was that they had crowded outside the factory gate between 7:00 A.M. to 10:00 A.M., shouting slogans against the Company and had thus proceeded on an illegal strike. However, when the workmen have not been identified by any of the witnesses for the Company, it is difficult to believe that only eight workmen out of the several workmen employed by the Company had managed to prevent the willing workmen from WP/266/1999 10 entering the factory premises. Therefore, it is apparent that these workmen had been singled out by the Company for their involvement in trade union activities. 13. In my opinion, for a strike of three hours, the punishment of dismissal is too severe. The workmen were agitating because their Charter of Demands were not met and also because the red flags that they had hoisted had been torn down by the Company. In my opinion, the Labour Court ought to have granted them reinstatement with continuity of service and back-wages. 14. However, the workmen have admitted while deposing before the Labour Court that each of them was employed on contract basis and was drawing a paltry sum whenever work was available. In these circumstances, in my opinion, it would not be proper to grant reinstatement with continuity of service and full back-wages at this stage. Instead, they would be entitled to compensation. The Company has settled the dispute with one of the charge sheeted workman, namely, Raghunath Chandrasen Sonatakke, who was paid Rs.700/- plus interest of Rs.1,820/- in full and final settlement of his dues. This offer is again made by the Company to settle the dues of these workmen. In my opinion, this offer is ridiculous and the workmen have rightly refused the offer. The learned Advocate for the Union submits that other workers in the factory having the same seniority as the concerned workmen, are drawing around Rs.12,000/- per month today. The minimum wages in the Engineering Industry are Rs.6,000/- per month. WP/266/1999 11 15. The last drawn wages of these workmen were Rs.700/- per month. Even if the back-wages are calculated at this rate and not the incremental rate, the workmen would be entitled to approximately Rs.2 lacs depending on their respective ages of retirement. Sudam Vaman Jadhav and Raghunath Balwant Patil would have been entitled to Rs.1,84,800/-, while the other two workmen, namely, Sudhakar Shivram Kumbharkar and Laxman Shripati Gund would be entitled to Rs.2,10,000/- as back-wages alone. They would be entitled to Gratuity as well. Considering all the circumstances of the case, the Award Part II is set aside. Sudam Vaman Jadhav and Raghunath Balwant Patil are entitled to Rs.2.50 lacs and Sudhakar Shivram Kumbharkar and Laxman Shripati Gund are entitled to Rs.2.75 lacs as compensation in lieu of reinstatement with continuity of service and full back-wages. They would be entitled to gratuity as well. 16. The Writ Petition is allowed. 17. Rule made absolute accordingly. No order as to costs.