WP/3689/1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3689 OF 1999 D.K. Bhagat ... Petitioner V/s. Tata Engineering & Locomotive Company Ltd. & Anr. ... Respondents Mr.N.A. Kulkarni for Petitioner Mr.J.P. Cama with K.S. Bapat, H.N. Vakil i/b M/s.Mulla & Mulla for Respondent No.1 CORAM: SMT.NISHITA MHATRE, J. JUDGEMENT RESERVED ON: NOVEMBER 25, 2010 JUDGEMENT DELIVERED ON: DECEMBER 23, 2010 JUDGMENT: 1. The awards impugned in this Petition have been passed on 10.7.1995 and 28.6.1998 in Reference (IDA) No.288 of 1991. The demand of the Petitioner for reinstatement with continuity of service and full backwages has been rejected. 2. The facts giving rise to the present petition are as follows: The Petitioner was appointed as a Driller in December 1980 by the respondent company. He was drawing a monthly wage of Rs.2,349/-. After working for about nine years, the workman was issued a chargesheet on 12.9.1989 in which it was alleged that he had abused and assaulted his co-workers. He was charged with having committed misconduct under Standing Order 24(k) – riotous and disorderly or indecent behaviour on the premises of the establishment and 24(l) – commission of an act subversive of discipline and good behaviour on the premises of the WP/3689/1999 : 2 : establishment. The petitioner denied the charges levelled against him through his reply dated 30.8.1989. As the Respondent Company was not satisfied with the reply of the petitioner, an enquiry was instituted against him. The enquiry officer found the petitioner guilty of the acts of misconduct alleged against him and submitted a report accordingly. The company accepted the report and dismissed the petitioner on 22.10.1990. While doing so, the company also considered the past service record of the petitioner. 3. Aggrieved by the decision of the respondent, the petitioner approached the machinery available under the Industrial Disputes Act and obtained a reference for adjudication of his demand for reinstatement for continuity of service and full backwages. The main contentions raised in the statement of claim filed by the petitioner were that the enquiry had been held in utter disregard of the principles of natural justice and fair play. He contended that the charges levelled against him of assaulting his co-worker, one Pandey, had not been established as no eye witnesses were examined. He also contended that action had been initiated against him only to victimise him because he was a member of the TELCO Kamgar Sanghatna. He therefore claimed that his demand should be granted. 4. The Company opposed the reference by submitting its written statement. It also produced on record the enquiry proceedings to establish that it had been conducted in accordance with the principles of natural justice. 5. By an award part I, the Labour Court held that the enquiry conducted against the petitioner was fair and proper. The workmen had received the chargesheet and WP/3689/1999 : 3 : copies of documents which the company had relied on before the enquiry officer were furnished to the petitioner. He was permitted to participate in the proceedings. In these circumstances, the Labour Court in my opinion, has rightly held that the enquiry was conducted fairly and in accordance with the principles of natural justice. Evidence was then recorded regarding the proportionality of the punishment and the backwages if any to be awarded to the workmen. 6. By award part II dated 28.1.1998, the Labour Court held that the company had established the misconduct before the enquiry officer on the basis of the evidence led by it. It was of the view that the dismissal was justified as the past service record of the petitioner was not blameless. The reference was therefore dismissed. 7. Mr.Kulkarni, appearing for the petitioner, has submitted that assuming an enquiry has been held procedurally in accordance with the principles of natural justice, the findings of the enquiry officer are perverse. He submitted that the Labour Court ought to have interfered with the findings of the enquiry officer as they were not based on the evidence on record. The learned advocate pointed out that Pandey who was allegedly assaulted, claimed that he had lodged a complaint with the Pimpri police station immediately. However, that complaint was not produced before the enquiry officer. Mr.Kulkarni therefore submitted that the incident itself had not taken place. He then drew my attention to the fact that a copy of the complaint which was produced before the enquiry officer was a complaint recorded at Talegaon Police Station on 17.9.1989 by Pandey, five days after the alleged incident. Mr.Kulkarni therefore submitted that the complaint cannot be relied on and must be ignored. He WP/3689/1999 : 4 : then urged that the appreciation of evidence by the enquiry officer was not proper and that the findings were not based on the evidence before it. He submitted further that the company was not consistent in its action against the petitioner as had the company been serious about the charges levelled against the petitioner regarding the abuse, threat and assault of Pandey, it would have pursued the police complaint filed against the Petitioner. Therefore it was unbelievable that the incident had occurred, according to the learned advocate. He then submitted that the charges levelled against the petitioner were trumped up and the action had been taken against him only to victimise him for being a member of the TELCO Kamgar Sanghatna. He then urged that the punishment of dismissal was not warranted, even if it is to be believed that the incident of abuse and assault had occurred. According to Mr.Kulkarni, the petitioner has been dismissed after putting in nine years of service only with a view to victimise him. He submitted that the past service record of the workman, though not unblemished, also did not warrant punishment of dismissal. The learned advocate therefore urged that the petitioner should be reinstated in service with continuity of service and full backwages else, compensation should be paid to the petitioner. 8. Mr.Cama, appearing for the company, has submitted that the statement of claim filed by the petitioner does not contain any pleadings with respect to their being any breach of the principles of natural justice in the conduct of the enquiry. He pointed out that in the past i.e., prior to the dismissal of his services, the workman had been issued a warning letter on 13.2.1983 for the misconduct of drunkenness, riotous and disorderly behaviour. He was also cautioned on 17.4.1983 for the misconduct of insubordination. According to Mr.Cama, therefore, such a person should not be reinstated in service. He also pointed out that the respondent is WP/3689/1999 : 5 : running a workshop in Aundh, Pune and, therefore, there was no need to reinstate him. He pointed out the affidavit of Ratnakar R. Raut, the Manager – H.R. of Respondent No.1 in which the affiant has averred that the petitioner was running a foundary in Aundh and that the petitioner is described as the owner of the establishment in the licence obtained for the establishment. In addition, the petitioner was running a small scale industry in the MIDC area at Pimpri under the name of “Glow Heater” where apparently he was a partner of the firm. In such circumstances, according to Mr.Cama, there is no need to reinstate the workman and the order of dismissal must be upheld. He submitted that the findings recorded by the enquiry officer have not been found to be perverse by the Labour Court and this Court in its writ jurisdiction should not normally interfere in such a case. 9. The allegation against the petitioner is that he had assaulted his co-employee one S.B. Pandey on the ground that he refused to pay the membership subscription to Telco Kamgar Sanghatna, a trade union representing the employees working in the respondent company. Pandey also refused to wear a red head band like the other members of the union. It is because of this refusal that the petitioner assaulted Pandey who had lodged a police complaint in that regard. 10. The Labour Court, on the basis of the enquiry report, has found that the misconduct alleged against the petitioner has been proved. I have perused a copy of the award of the Labour Court and in my opinion cogent reasons have been mentioned by the Labour Court for accepting the findings of the enquiry officer. The Labour Court has arrived at a possible conclusion in view of the evidence recorded before the enquiry officer. The learned advocate for the petitioner has been unable to WP/3689/1999 : 6 : establish any reasons for me to take a different view in the matter. It is now well settled that when an employee breaches discipline and efficient working of an organisation, the employer would be well within his rights to take action against such an employee. Mr.Kulkarni has relied on the judgment of the learned Single Judge of this Court in the case of K. Ramchandra Nair vs. The Bombay Gymkhana Ltd. & Ors., 1988(56) FLR 420 in support of his submission that since the management had not pursued the police complaint filed by Pandey, the misconduct had not been proved. This submission of Mr.Kulkarni cannot be accepted. The fact that the workman had lodged a police complaint is not denied by the petitioner. Merely because the police complaint was not pursued would not in my opinion, lead to the inference that the incident had not occurred. Mr.Kulkarni had also relied on a judgment in the case of Ganesh Rajan Servai vs. Benett Coleman & Co. Ltd. & Anr., 1988 (56) FLR 652. In this case, no domestic enquiry was held against the delinquent workman. However, the Tribunal had permitted the management to lead evidence before it to prove the charges levelled against the workman. This Court found that the Industrial Court had not conducted a full scale enquiry on merits as required when no domestic enquiry is held against a delinquent workman. This judgment has no application to the facts in the present case as admittedly an enquiry was held. 11. Mr.Kulkarni has also relied on the judgment in the case of Ramakant Misra vs. Stat of U.P. (SC), 1982 (45) FLR 432 in support of his submission that the penalty imposed on a workman found guilty of misconduct must be commensurate with the gravity of the offence charged. This principle is well settled and I am bound by the judgment of the Supreme Court. However, in the present case, the petitioner has WP/3689/1999 : 7 : been charged with not only abusing but also assaulting a co-employee who had lodged a police complaint soon after the incident. It is also true that while imposing the penalty, the Tribunal is expected to consider the past service record of the delinquent workman. In the present case, the workman has been charged for the similar acts of misconduct in 1983 as well i.e. within three years of being employed in the establishment. In my opinion, there is no need to interfere with the order passed by the Labour Court which is based on the findings recorded by the enquiry officer. No case for interference under Article 227 has been made out by the Petitioner. 12. Rule discharged. No costs.