WP/1178 & 3529/1996 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1178 OF 1996 The Indian Hotels Company Ltd., Mumbai ... Petitioner V/s. Namdeo V. Sanas & Anr. ... Respondents ALONG WITH WRIT PETITION NO.3529 OF 1996 Namdeo V. Sanas ... Petitioner V/s. The Indian Hotels Company Ltd., Mumbai & Anr. ... Respondents Mr. J.P. Cama, Sr. Advocate, with Ms. Neha Mehta and Mr. Z.A.K. Najam-es-sani i/b. Mulla & Mulla and Cragie Blunt & Caroe for the Petitioner in WP/1178/1996 and for Respondent No.1 in WP/3529/1996. Mr. N.M. Ganguli for Respondent No.1 in WP/1178/1996 and for the Petitioner in WP/3529/1996. CORAM :SMT. NISHITA MHATRE, J. RESERVED ON :10 TH AUGUST, 2010. PRONOUNCED ON:18 TH OCTOBER, 2010. JUDGMENT: 1. Both these Petitions challenge the Award “Part-II” in Reference (IDA) No.999 of 1999. The Petitions were therefore heard together. Writ Petition No.1178 of 1996 has been filed by the employer and Writ Petition No.3529 of 1996 has been WP/1178 & 3529/1996 2 filed by the workman. For the sake of convenience, the petitioner in Writ Petition No.1178 of 1996 will be referred to as “the Company” and the petitioner in Writ Petition No. 3529 of 1996 will be referred to as “the workman”. 2. The workman joined service with Taj Air Caterers, which is a unit of the Company, as an “Attendant” on 7th January, 1977. On 5th June, 1986, the workman was charge sheeted by the Company. The charge against the workman was that he had committed an act subversive of discipline or good behaviour on the premises of the establishment. The other charge levelled against him was refusal to accept a charge sheet, order or other communication served in accordance with these Standing Orders. On 17th August, 1986, another charge sheet was issued against the workman in which it was alleged that he had committed acts of : (i). Willful insubordination; (ii). Fraud or dishonesty in connection with the employers. (iii). Disorderly or indecent behaviour on the premises of the establishment. WP/1178 & 3529/1996 3 (iv). Subversive of discipline or good behaviour on the premises of the establishment. 3. An enquiry was held against the workman which resulted in his dismissal from service on 5th February, 1990. The workman raised an industrial dispute on 21st November, 1990 demanding reinstatement with continuity of service and full back-wages with effect from 5th February, 1990. The dispute was referred for adjudication before the Labour Court, Mumbai, being Reference (IDA) No.999 of 1990. The workman filed his statement of claim contending that; (a). the enquiry held against him was not fair and proper; (b). he had committed no acts of misconduct; (c). the findings of the Enquiry Officer were perverse and; (d). therefore he was entitled to reinstatement with continuity of service and full back- wages. WP/1178 & 3529/1996 4 4. The Company filed its written statement describing the past service record of the workman. The Company contended that certain articles were found in the workman’s locker which did not belong to him but were obtained by him unauthorizedly from the Company’s premises. He had fraudulently obtained these articles from the bonded items which were in possession of Taj Air Caterers. It further contended that the allegations levelled against the workman in the charge sheet had been proved after holding a proper and legal domestic enquiry. The Company further pleaded that the enquiry had been held in accordance with the principles of natural justice by giving the workman ample opportunity to defend himself at the enquiry. 5. The Labour Court by Award “Part-I” concluded that the workman had not been able to establish that the enquiry held against him was not fair and proper. The Labour Court was of the opinion that the findings recorded by the Enquiry Officer were not perverse and therefore upheld the same. 6. By Award “Part-II” the Labour Court, on considering the nature of the articles and the value of the articles found in the workman’s locker, concluded that the punishment of WP/1178 & 3529/1996 5 dismissal imposed on the workman was not warranted. The Labour Court held that the punishment being disproportionate to the misconduct proved against the workman, he was entitled to reinstatement with continuity of service and 50% back- wages. 7. Mr. Cama, the learned Counsel appearing for the Company, submitted that the workman had committed theft of the employer’s property and had thus shattered the confidence reposed in him. He submitted that the quantum of the loss suffered by the Company or the value of the articles stolen is immaterial; once there is a theft committed by a workman, he must be dealt with a firm hand. He then relied on the judgments of the Supreme Court in the cases of Divisional Controller, N.E.K.R.T.C. vs. H. Amaresh, reported in 2006 III CLR 11 and Depot Manager, A.P.S.R.T.C. vs. B. Swamy, reported in 2007 II CLR 567 and of this Court in the cases of Prabhu Nagnath Surve vs. I.B.P. Company Ltd. & Anr., reported in 2006 I CLR 172 , and Narayan Bapuji Dhote, Nagpur vs. Divisional Controller, M.S.R.T.C., Nagpur, reported in 2007 II CLR 368. He then submitted that although several charges have been levelled against the workman, they have not been considered while punishing the workman. The workman’s past WP/1178 & 3529/1996 6 service record was not good at all and therefore the Labour Court ought not to have interfered with the judgement of the Company of dismissing the workman. According to Mr. Cama, several opportunities were given to the workman to improve himself but rather than doing so, he had continuously indulged in acts of misconduct. He then submitted that the Labour Court had no basis to conclude that the workman was entitled to back-wages. The learned Counsel pointed out that the workman had not led any evidence on the issue of back- wages and his gainful employment during the period when he was out of service with the Company. He, therefore, submitted that the Award “Part-II” be set aside. 8. Mr. Ganguli, the learned Advocate appearing for the workman, urged that the Award “Part-II” of the Labour Court is erroneous only so far as it does not grant the workman full back-wages. He submitted that the enquiry report was, in fact, perverse and the Labour Court was not right in concluding that the findings of the Enquiry Officer were correct. He submitted that under Section 11A of the Industrial Disputes Act, it is incumbent on the Labour Court to exercise its jurisdiction to ensure that a disproportionate punishment is not imposed on the workman. WP/1178 & 3529/1996 7 The punishment, according to Mr. Ganguli, must be commensurate with the misconduct allegedly committed by the workman. He further submitted that the workman has been out of employment due to the stay granted by this Court for well over 20 years. According to him, the Award “Part-II” of the Labour Court must be modified by granting full back-wages to the workman. He further submitted that the findings of the Labour Court that the punishment was shockingly harsh should not be interfered with by this Court in its writ jurisdiction. In support of this proposition he relied on the judgement of the Supreme Court in the case of Syed Yakoob vs. K.S. Radhakrishnan & Ors., reported in AIR 1964 SC 477 , which has been followed by the Court in the case of Anoop Sharma vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana), reported in 2010 II CLR 1 . 9. The Award “Part-I” of the Labour Court has been passed on 13th January, 1995. The Labour Court has held by this Award that the enquiry conducted against the workman was fair and proper. The Labour Court has then scrutinized the findings of the Enquiry Officer and found that they were not perverse. Although Mr. Ganguli has submitted that the Labour Court’s Award “Part-I” is incorrect in as much as the findings of the WP/1178 & 3529/1996 8 Enquiry Officer were perverse, that Award has not been challenged by the workman in his Writ Petition. Therefore, this submission of Mr. Ganguli need not be considered at all. The Labour Court has found that the findings of the Enquiry Officer were supported by the evidence on record which established that the workman had committed the alleged acts of misconduct. These acts included theft and dishonesty on the premises of the establishment and commission of an act subversive of discipline or good behaviour on the premises of the establishment. 10. In Award “Part-II”, the Labour Court has re-appreciated the evidence on record while exercising its jurisdiction under Section 11A of the Industrial Disputes Act. It has found that the workman had committed theft of bonded articles i.e. 1 tin of Talcum Powder and 2 cakes of Soaps. These items were found in the workman’s locker. The Labour Court, therefore, held that the charge of theft and dishonesty had been proved since the workman had been found to be in unauthorized possession of these bonded articles. The Labour Court observed by relying on certain judgments that the punishment of dismissal was not warranted. The Court observed that admittedly the value of the stolen property was less WP/1178 & 3529/1996 9 than Rs.10/- and therefore there was no justification to punish the workman with dismissal. 11. It would be necessary now to consider whether the acts of misconduct established against the workman warranted the extreme punishment of dismissal as suggested by Mr. Cama. There can be no doubt that the Labour Court or Industrial Tribunal can exercise jurisdiction under Section 11A of the Act for drawing a conclusion on this issue. 12. In the case of Divisional Controller, N.E.K.R.T.C. (supra), the Supreme Court was dealing with a case where a Bus Conductor was dismissed from service for pilferage after an enquiry. The Court observed that in such a case there would certainly be a loss of confidence of the employer when there is misappropriation of the funds of the employer by a delinquent employee. The Court then reiterated its view taken in a catena of judgments that the loss of confidence is the primary factor and not the amount of money misappropriated, of which cognizance must be taken while imposing punishment. The Court observed that there was no place for generosity or misplaced sympathy on the part of the judicial fora while interfering with the quantum of punishment. The Court further WP/1178 & 3529/1996 10 observed that once a domestic Tribunal comes to a particular conclusion, normally it would not be open for the Tribunal and Courts to substitute their subjective opinion in place of the one arrived at by the domestic Tribunal. The Court, therefore, found that the punishment of dismissal of the Conductor, who had pilfered certain amounts, could not be considered as shockingly disproportionate. 13. In the case of Depot Manager, A.P.S.R.T.C. (supra), the Supreme Court was again dealing with a case where a Bus Conductor had been dismissed from service for misappropriation of the ticket collections. The Court held that a Bus Conductor enjoys the faith reposed in him and is obliged to account for the money collected by him after issuing proper tickets to the passengers. In such circumstances, if Conductors are dishonest in performing their duties, it would cause serious pecuniary loss to the employer. In these circumstances, the Court observed that even one act of dishonesty amounted to a breach of faith and could invite serious punishment. 14. Similarly, the case of Narayan Bapuji Dhote, Nagpur (supra) decided by a learned Single Judge of this Court was WP/1178 & 3529/1996 11 also with respect to a Bus Conductor who had misappropriated a certain amount from the ticket collections. The punishment of dismissal of the conductor was upheld. 15. In the case of Prabhu Nagnath Surve (supra), the workman was charge sheeted for a theft. The workman was a watchman / security guard and had removed the property of the Company, unauthorizedly and dishonestly. The Court, therefore, observed that the punishment of dismissal could not be said to be disproportionate as the involvement of the workman in aiding the removal of the property from the precincts of the Company while he was working as a security guard itself amounted to a serious act of misconduct and therefore the dismissal was confirmed. 16. Mr. Ganguli, the learned Advocate for the workman, has submitted that all these judgments are not relevant in the present case. According to him, the judgments relate to pilferage or misappropriation of certain amounts by Bus Conductors. He submitted that the confidence reposed by an employer in a Bus Conductor is far greater than that reposed in an ordinary workman by his employer. Similarly the degree of faith in a security guard is far greater, according to him. Admittedly, the workman was working as an “Attendant” in WP/1178 & 3529/1996 12 the Flight and therefore Mr. Ganguli contended that the same criteria cannot be applied to him as was applied to a Bus Conductor or a security guard. 17. It is true that the workman has been found to be guilty of the alleged misconduct. However, it is always open for the Labour Court to consider whether the punishment is commensurate with the misconduct committed by the workman. In the present case, the Labour Court has accepted the findings of the Enquiry Officer that certain articles, i.e. a tin of talcum powder and two cakes of soap, were found in the locker of the workman. In these circumstances, the Labour Court has accepted the findings of the Enquiry Officer that he was in unauthorized possession of these articles. However, the Labour Court was of the view that the value of these articles was less than Rs.10/- and has therefore observed that by inflicting the punishment of dismissal “the 1st party company has brought road roller to crush a fly while imposing of penalty of dismissal from the service on the workman herein. It is well settled that the punishment of dismissal from the service is an economic death of an employee. It is a lot of repressive not only on the workman but on his entire family. It is also well settled that the punishment for misconduct WP/1178 & 3529/1996 13 shall be in accordance with the seriousness and gravity of misconducts plus the past record of the workman.” 18. In my opinion, this observation of the Labour Court cannot be called perverse. It is always open for the Labour Court to consider whether the punishment imposed is commensurate with the misconduct committed by the workman while exercising powers under Section 11A of the Act. 19. Undisputedly, the workman has also been found guilty of committing acts subversive of discipline and good behaviour on the premises of the establishment. The Labour Court, it appears, has considered these acts also and has found that the punishment is disproportionate. The Labour Court has also considered the past service record of the workman and has found that though it is not without blemish, the record is not such that it would be necessary to keep the workman out of service. 20. In the case of State of M.P. & Ors. vs. Hazarilal, reported in 2008 I CLR 987 , the Supreme Court was considering the termination of service of a Peon after being convicted in a case of criminal assault. The Court found that the order of dismissal of the Peon was unreasonable. WP/1178 & 3529/1996 14 21. In the case of Color-Chem Ltd. vs. Alaspurkar A.L. & Ors., reported in 1998 SCC 694 , the Supreme Court was dealing with a case where a workman was found sleeping during the night shift and had kept the machine running without bothering to ascertain whether the raw material was being fed into it. The Supreme Court while considering the past service record of the workman has observed that if a workman is made to suffer by some exceptional treatment, it would amount to victimization. The Court observed that by imposing a grossly disproportionate punishment on the workman, “the Management had tried to kill the fly with a sledge hammer”, which would amount to legal victimization, even if it was not factual victimization. 22. In the present case, the Company has dismissed the workman for a misconduct involving Rs.10/-. Although it is true that theft should not go unpunished, in my opinion, the punishment of dismissal is fully disproportionate. The Labour Court has, therefore, committed no error in granting reinstatement. Apart from this the finding of the Labour Court on this aspect cannot be termed as perverse warranting interference from this Court under its writ jurisdiction. WP/1178 & 3529/1996 15 23. The question now arises whether back-wages should be payable to the workman. The Labour Court has granted 50% of the back-wages. The learned Counsel for the Company has submitted that there is no evidence on record to show that the workman was unemployed after he was dismissed from the service. He pointed out the judgment of the Division Bench of this Court in the case of Sadanand Patankar vs. New Prabhat Silk Mills, reported in 1974 II L.L.J. 52 , where it has been held that it is necessary for the workman to state that he is unemployed or not gainfully employed from the date of his dismissal. The Division Bench has also observed that it was the duty of the adjudicator to frame an issue as to whether the workman would be entitled to back-wages. It is also held that failure to do so would amount to failure on the part of the adjudicator to exercise jurisdiction. 24. It is true that in the present case, the Labour Court has not framed any issue regarding back-wages payable to the workman. There is no evidence on record to indicate whether the workman was employed after the date of dismissal from the service. In these circumstances, in my opinion, it would be appropriate to remand the Reference (IDA) No.999 of 1990 to the Labour Court, Mumbai to decide the question whether the WP/1178 & 3529/1996 16 workman was gainfully employed after he was dismissed from service by the Company. If the answer is in the negative, the Labour Court will award a certain percentage of the back- wages as the misconduct has been established. The Labour Court, Mumbai will permit parties to lead evidence on the issue of back-wages payable and shall pass appropriate orders within a period of three months from today. 25. The Reference (IDA) No.999 of 1990 is remanded to the Labour Court, Mumbai for a decision on whether the back-wages are payable to the workman. 26. Both these Writ Petitions are disposed of. 27. Rule made partly absolute in Writ Petition No.1178 of 1996. 28. Rule made absolute in Writ Petition No.3529 of 1996. 29. No order as to costs.