1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 1224/1992 Vidarbha Stone Mine Workers Union, Sindola Lime Stone Mine, Sindola, Taluq Wani, District-Yavatmal PETITIONER ...VERSUS... 1. The Associate Cement Company Ltd., Chanda Cement Works, Sindola Lime Stone Mines, Sindola, Tah. Wani, Distt. Yavatmal 2. Shri M.N.Chandurkar, Chief Justice (Retd.), Bombay and Madras High Court, Hon'ble Arbitrator. (Deleted as per Courts Order dt.6.1.1994) RESPONDENTS ------------------------------------------------------------------------------- Shri S.A.Mohta, Adv. for Petitioner Shri R.E.Moharir, Adv. for Respondent ------------------------------------------------------------------------------- CORAM: R. K. DESHPANDE, J. CLOSED FOR JUDGMENT : 19 th APRIL , 2010. JUDGMENT PRONOUNCED ON : 27 th APRIL, 2010 2 1. This writ petition is preferred by Vidarbha Stone Mine Workers Union, which is a registered Trade Union under the Indian Trade Union Act, 1926, and operating in the establishment of respondent no.1, the Associated Cement Company. The petition challenges an award dated 20th March, 1992, passed by the learned Arbitrator Hon'ble Shri M.N.Chandurkar, Retired Chief Justice of the Bombay and Madras High Court in the reference under Section 10-A of the Industrial Disputes ACT, 1947, holding that the dismissal of the 5 workmen viz. Shri L.Z.Khade, Shri P.D.Bhongale, Shri P.L.Milmile, Shri Y.B.Raut and Shri S.K.Giri, is proper and justified and consequently refusing to grant any relief to them. 2. The respondent no.1 Associated Cement Company, which is an Industry, has dismissed the aforesaid 5 employees from service by order dated September 19, 1990, on the basis of the misconduct proved in an enquiry conducted by one Shri Bose, in respect of the charges contained in the show cause notice dated 8.4.1990. 3 As per the Memorandum of Settlement under Section 12(3) of the Industrial Disputes Act, 1947, the industrial dispute regrading dismissal of the aforesaid 5 workers was referred to the Sole Arbitrator under Section 10-A of the Industrial Disputes ACT. The dispute referred in terms was as under; “Whether the dismissal of 5 workmen, namely ShriL.Z.Khade, T.No. 917 (OHEO), Shri P.D.Bhongale, T.No. 922 (OHEO), Shri P.L.Nilmile, T.No. 940 (OHEO), Shri Y.B.Raut, T.No.1123, Blaster and Shri S.K.Giri, T.No. 1098, Mazdoor of Messrs ACC Ltd., Sindola Lime Stone MInes, with effect from 19-9-1990 is proper and justified. If not, to what relief they are entitled.” The learned Arbitrator has, by his award dated 30.3.1992, answered the said reference in the affirmative, holding that the dismissal of the aforesaid 5 employees w.e.f. 19.9.1990 was proper and justified and hence they are not entitled to any relief. 3. The facts in details are as under; One Suratsingh, Hawaldar, is alleged to have 4 misbehaved with the wife of Shri Pruthwisingh Chotta, the watchman, on 27.1.1990, as a result of which the employees and the members of the petitioner Union resorted to strike w.e.f. the midnight of 22nd March, 1990. The strike went on till 8th April, 1990. During this period of strike, it is alleged that about 12 workmen assaulted (1) Shri Vivek Singh, Senior Engineer; (2) Shri Narhari, the Trainee Engineer; (3) Shri B.R.Nagpurey, the Officer and (4) Shri S.K. Gupta, Officer Mines, when these Officers were patrolling the rope way between the factory and Sindola mines for its safety in Company's truck. Hence, charge sheet cum notice of enquiry was issued on 8.4.1990 to all the 12 workmen levelling a common charge as under. “On 6th April, 1990, during the day time, when Shri Vivek Sikngh, Sr. Engineer, Plant and Shri Narhari, Trainee Engineer, along with two other officers viz. Shri B.R.Nagpurey, Officer Mines and Shri S.K.Gupta, Officer Mines of the Company were patrolling the areal rope way between the factory & Sindola Mines for its safety in Company's trucks. Shri Narhari and Shri B.R.Nagpurey were in the truck bearing registration No.MH-34/A-83 and Shri Vivek Singh and Shri S.K.Gupta were in the Co's Truck bearing registration No. MTG-6214. At 5 about 12 noon when the above persons in their respective trucks, reached the approach road parallel to rope way line about 350 meters away from the rope way loading station, you along with M/s. N.Z.Khade, T.No. 917, O.H.E., James Anandrao – T.No. 1113 – Fitter, J.S.Satputer T.No. 983 - Diesel Mechanic, S. Vishwakarma, T.No.1117-Welder, P.D.Bhongle- T.No. 922, OH.E.O., M.N.Wandhre, T.No. 979- Carpenter, Y.B.Raut- T.No.1323-Blaster, A.B. Bobade – T.No. 994, Diesel Mechanic, M.A.Bhutto-T.No.987, Diesel Machanic, P.L.Milmile, T.No. 910-Q.H.E.O. and Shri S.K.Giri, T.No. 1098-Mazdoor, forcefully stopped the truck and compelled under threat M/s. Vivek Singh and Narhari to get down from their truck. As soon as M/s. Vivek Singh and Narhari got down from the truck, you along with M/s. N.Z.Khade, James Anandero, J.S.Satpute, S.Vishwakarma, P.D.Bhongle, M.N.Wandhre, Y.B.Raut, A.B. Bobade, N.A. Bhutto, P.L.Milmile and S.K.Giri, started mercilessly beating both of them with hand, Chappels, Stone & Helmet. As a result of the assault, Shri Vivek Singh received severe injuries all over his body and particularly in his head, face, back and left ear and left eye. On account of above assault, Shri Vivek Singh is unable to see from his left eye and his left ear drum is damaged resulting in impairment to hearing from his left ear. Further as a result of physical assault by you along with others, Shri Narhari, received severe injuries on his nose, head, face and back. This assault has resulted in fracture of Mr. Narhari's nose.” 4. It was alleged that these employees have 6 committed the acts of misconduct which fell under Clauses 19(iv)(a) and (c); 19(xx); 19(xi) and 19(xlii) of the Standing Orders. The workmen were asked to submit their written explanation within 72 hours from the receipt of charge sheet- cum-show cause notice. They were informed that a joint enquiry into the charges levelled against each of them will be held on 14.4.1990 at 10 a.m. in the office of the Manger, Mining, by one Mr. B.N.Wadhwani, Senior Manager (Personnel) of Bombay Office. It was further stated that they will be given full opportunity to produce the witnesses and to defend themselves. It was also stated that they will be given full opportunity to cross examine the witnesses produced in respect of the charges. It was further made clear that if they failed to attend the enquiry on the schedule date and time, or being present at the enquiry or refuse to participate in the enquiry, the enquiry will proceed. The enquiry was, however, finally conducted by Shri T.K.Ghosh, who was Manager (Personnel Administration) at Jamul Cement Works. 7 5. Although, the workmen denied the charges levelled against them, they did not participate in the enquiry. The enquiry was fixed on 28.4.19990. It was adjourned to 4.5.1990. Thereafter it was adjourned to 17.5.1990, on which date the Enquiry Officer recorded the evidence of the witnesses for the management viz. (i) Shri Ashokkumar, Superintending Engineer, Mines, (ii) Shri B.R.Nagpurey and (iii) S.K.Gupta, Officers (Mines), (iv) Shri B.M.Karlekar, Manager, Health Services, (v) Vivek Singh, Senior Engineer and (vi) Shri Narhari, Trainee Engineer. The Enquiry Officer submitted his findings on 29.8.1990, holding the aforesaid 5 workmen guilty of the charges levelled and discharged rest of the workmen on the ground that these 5 workmen have played a vital role in the whole incident and therefore, their gravity of misconduct is much more than that of the other 7 workmen. It was held that these 5 workmen were leading the crowd and were instigating the crowd to beat Shri Narhari and Shri Vivek Singh and they were the first persons for the act of instigation and assault. 8 6. On the basis of the findings of the Enquiry Officer, an order of dismissal dated September 19, 1990, was issued to each of the 5 workmen and the contents of the same were identical. These 5 workmen were dismissed from service with immediate effect after taking into consideration their past service record. The order of dismissal recited that arbitration proceedings are pending before the Hon'ble Arbitrator Shri M.N.Chandurkar at Bombay and an application seeking approval has been made today and one month wages have also remitted by money order as required under Section 33(2)(b) of the Industrial Disputes Act. The workmen were requested to collect all other dues immediately from the Company. 7. On 29.10.1990, a settlement was entered into in between the petitioner Union and the Management of Respondent No.1 Establishment under Section 12(3) of the Industrial Disputes Act, over the Industrial Dispute, on the issue of alleged wrongful dismissal of 5 workmen w.e.f. 19.9.1990, to the Sole Arbitrator Hon'ble Shri M.N. 9 Chandurkar. Accordingly, reference under Section 10-A of the Industrial Disputes Act, 1947, was made. 8. The learned Arbitrator delivered his award on 30th March, 1992. It was held that the question whether the misconduct in a given case is serious or not, has to be determined on the facts of each case. The misconduct of a person who actually assaults the officer of the Company and instigates others, who do not actually take part in the assault, must be considered as more serious than the other persons who were instigated. Hence, it was held that, it would be quite permissible to award more serious punishment to the persons, who have actually indulged in the bodily assault on the Officers of the Company. On the aspect of inquiry, it was held that, there is enough evidence in the enquiry papers to show that notices about the dates of inquiry were sent to the concerned employees, but none of them made an inquiry as to the dates of enquiry and hence, no infirmity in the course adopted by the Inquiry Officer can be found. On the aspect of permission as 10 contemplated of Section 33(2)(b) of the Industrial Disputes Act, it was held that, substantive reference having been made regarding the validity of the order of dismissal, the question as to whether permission under Section 33(2)(b) of the Act should be granted or not, become wholly academic, and the application had become infructuous. In respect of the plea that no second show cause notice was issued in respect of punishment, it was held that no reliance can be placed either on the provisions of Article 311 or the decisions of the Apex Court rendered on the said provision, as the inquiry proceedings were governed by the certified standing orders of the Company, which did not provide for, giving any such opportunity in the matter of punishment. In respect of the contention that the enquiry report is liable to be rejected being unreasoned, it was held that though no separate findings are recorded in respect of each charge, the observations of the Enquiry Officer will have to be read in the light of the charges reproduced by him in his report. 9. Shri Mohta, the learned counsel appearing for the 11 petitioner Union has challenged the findings of the learned Arbitrator, confirming the dismissal of 5 workmen by the management on the ground that they have taken active, leading and vital role in the matter of assault, which distinguishes their cases from other 7 workmen. According to him, this finding of the management is nothing but an act of victimization and discrimination. According to him, the charge-sheet was issued to all the 12 workmen, levelling identical charges, and there was no specific act of active, leading and vital role played by these 5 dismissed workmen alleged in the charge sheet, as a result of which, the 5 workmen were denied an opportunity to defend themselves. He urged that there was nothing on record to separate the cases of these 5 workmen from the cases of remaining 7 workmen. According to him, the gravity has to be seen from the charges levelled and there was no difference in the charge levelled against all the 12 employees and hence the finding only in respect of 5 employees holding them guilty, was discriminatory. He has relied upon the portion of the cross examination of the Enquiry Officer, wherein he has 12 admitted that he has not referred to particular action of misconduct and has further admitted that he did not come across any complaint made by Shri Vivek Singh or Shri Narhari, to the management with regard to the alleged assault. According to Shri Mohta, the Enquiry Officer has further admitted that the management has not produced any fact finding report with regard to the alleged incident. For these reasons, according to him, the findings of Arbitrator in that respect is liable to be set aside. 10. Shri Mohta, the learned counsel has also challenged the finding recorded by the learned Arbitrator that the Enquiry Officer was justified in proceeding with the enquiry exparte as the concerned employee has failed to appear inspite of the notice, on the dates on which the enquiry was conducted. According to him, it was an exparte enquiry, without giving an opportunity to defend the charges and without intimating them the dates of holding of enquiry. According to him, in view of the order of status- quo dated 2.5.1990 passed by the Assistant Commissioner 13 of Labour, the Enquiry Officer should not have proceeded with the enquiry. Thus, according to him, the enquiry is liable to be set aside on the ground of the breach of the principles of natural justice. 11. The next contention of Shri Mohta, the learned counsel for the petitioner, is that the Arbitrator has committed an error of law, in holding that the question of obtaining of permission of Assistant Labour Commissioner under Section 33(2)(b) of the I.D.Act, was wholly academic. It was urged that inspite of the fact that the provision is mandatory and no permission, was obtained, the Arbitrator has committed an error in holding that the dismissal was legal and proper. For this, he relied upon the decision of the Constitution Bench of the Apex Court6 reported in AIR 2002 SC 643; Nagpur Zilla Sahakari ...vs.... Shri Ram Gopal and others; wherein it has been held that non approval of order of dismissal or failure to make attempt under Section 33 (2)(b) of I.D. Act for seeking approval, renders the dismissal inoperative and the employee is 14 entitled to reinstatement with full back-wages. 12. The next contention of Mr. Mohta, the learned counsel for petitioner, is that no separate findings are recorded in respect of each charge by the learned Arbitrator or even by the Enquiry Officer. According to him, no reasons are recorded. It is merely a general finding on the basis of which five workmen are held guilty. He relied upon decision of the Apex Court reported in Anil Kumar ..vs.. Presiding Officer and ors. AIR 1985 SC 1121. He submits that the Arbitrator ought to have remanded the matter back to the Enquiry Officer. 13. The last contention of Mr. Mohta is that before imposing punishment, no show cause notice was issued to 5 workmen and relied upon Section 17 of the Industrial Disputes Act. 14. Shri Moharir, the learned counsel appearing for respondent no.1 has submitted that the learned Arbitrator 15 has considered the question of discrimination and has recorded a finding that there was no question of discrimination. This finding of fact recorded, according to him, is not shown to be perverse, so as to warrant interference by this Court under Articles 226 and 227 of the Constitution of India. According to him, the learned Arbitrator has taken into consideration the entire evidence on record, including the so called admissions of the Enquiry Officer and has recorded a finding, on appreciation of evidence, which is just and proper. 15. On the question of opportunity, Shri Moharir, the learned counsel has urged that the learned Arbitrator has recorded a finding on fact that in spite of opportunity given to the employees, they have not participated in the enquiry. The dates of enquiry were made known to them and the Assistant Labour Commissioner had no authority to grant status quo. According to him, the said order of status-quo was not brought to the notice of the Enquiry Officer, and therefore, the Enquiry Officer was right in 16 proceeding with the enquiry after intimating the dates of enquiry to the employees. The employees have failed to participate in the enquiry and to avail the opportunity to defend the charge and they cannot now turn around and complain about lack of opportunity. According to him, the findings recorded by the learned Arbitrator on the aspect of opportunity is based upon appreciation of the relevant material available on record and no perversity is pointed out. 16. On the aspect of permission under Section 33(2) (b) of the Industrial Disputes Act, Shri Moharir, the learned counsel for Respondent No.1 submitted that there was a full compliance as was stipulated in the order of dismissal dated September 19, 1990. According to him, the provisions of Section 33(2)(b) have been fully complied with. According to him, the learned Arbitrator has recorded a finding that the question of obtaining of permission under Section 33(2)(b) has become academic and there is no illegality or infirmity in recording such finding. The learned counsel, therefore, 17 supports the findings recorded by the learned Arbitrator. 17. Mr. Moharir, the learned counsel for the respondent, has submitted that the Enquiry Officer has recorded the finding on each aspect of the matter and the Arbitrator was concerned with the question whether the Enquiry held by Enquiry Officer is just and proper. The Arbitrator has confirmed the finding recorded by the Enquiry Officer holding five workmen guilty of the charges levelled and has accordingly maintained the order of dismissal. 18. In support of the contention regarding the second show cause notice against the punishment, Mr. Moharir, the learned counsel for the respondent, submitted that there is no requirement under the standing orders prevailing in the respondent-Establishment, to issue the second show cause notice against the punishment to the employee. He further submits that such a requirement contemplated under the provisions of Article 311 cannot be 18 imported in the standing orders governing the field. 19. To deal with the first contention of Mr. Mohta, the learned counsel for the petitioner, about victimisation and discrimination, the contents of chargesheet-cum-notice of enquiry issued to all 12 employees on 08.04.1990 are required to be seen. The contents of this charge-sheet were identical. The charge in substance against all the 12 employees was that each of them along with others have forcibly stopped the truck and compelled and threatened Mr. Vivek Singh and Mr. Narhari to get out of their truck. It is alleged that as soon as both these persons got down from the truck, the chargesheeted employees along with 11 other persons specifically named therein started mercilessly beating both of them with hands, chappals, stones and helmets. As a result of this assault, it is alleged that Mr. Vivek Singh received severe injuries over his body and particularly on his head, face, back and left ear and left eye. On account of the said assault, Mr. Vivek Singh became unable to see from his left eye and his left ear drum 19 is damaged resulting in impairment to hearing from his left ear. It is further alleged that as a result of physical assault by all the chargesheeted employees along with others, Mr. Narhari received several injuries on his nose, head and back, which has resulted in fracture of Narhari’s nose. It was alleged that these acts amounts to misconduct under the Standing Orders falling under Clause nos. 19 (iv) (xx) (xxi) (xiii), which were reproduced in the chargesheet-cum- show cause notice and the explanation was called in respect of these charges. 20. It is thus apparent that each of the twelve workmen was charged that he has forcibly stopped the truck, compelled and threatened Mr. Vivek Singh and Mr. Narhari to get out of truck, started beating both of them mercilessly with hands, chappals, stones and helmets, as a result of which both the aforementioned persons suffered severe injuries. Thus, the charges against each of the twelve employees are not only specific but are, as serious as they could be and none of them is charged with any lesser kind 20 of misconduct than the others. It is only on the basis of the evidence which came on record, it is found that the cases of remaining seven workmen cannot be equated with the cases of five workmen, who are dismissed from service. It is not at all a case of levelling any additional or different charges upon the dismissed workmen. The adjectives of playing active, leading or vital role or of instigation are merely to distinguish the gravity of misconduct on the part of the persons who are not found to have actually forced, threatened and beaten the two persons and such a distinction could be made only on the basis of evidence on record. It is not a case of any lesser kind of misconduct alleged against seven workmen who are not dismissed from service. It is a matter of proof, which makes the distinction. 21. The learned Arbitrator has recorded a finding on internal page 45 of the award (running page 192) as under; “The evidence of the two victims, namely Nasrhari and Viveksingh, clearly justifies the conclusion arrived at by the Owner that the 5 workmen in question had taken a leading part in the assault made on them and it was, in my 21 opinion, quite permissible to award a higher degree of punishment to them. Such a course appears to be quite permissible as will be clear from the decision of the Supreme Court in Workmen of Motor Industries Co. Ltd. vs. MICO (1969) 2 LLJ 673. The decision of the Delhi High Court in Usha Kumar vs. Super Bazar Co-operative Stores Ltd., (1991) 1 C.L.R. (H.C. Del.) 840, is clearly distinguishable on facts.The punishment of dismissal in that case was considered to be too harsh on the ground that the misconduct was not serious and another employee similarly charged was given much lesser punishment. The question as to whether the misconduct in a given case is serious or not has to be determined on the facts of each case. The misconduct of a person who actually assaults an Officer of the company and instigates other people who do not actually take part in the assault must be considered as more serious than the other persons who were instigated. It would, in my opinion, be quite permissible to award more serious punishment to be persons who have actually indulged in the bodily assault on the officers of the company. The decision of the Supreme Court in Sengara Singh's case (AIR 1984 SC 1499) is also distinguishable because in that case it was found that when out of about 1100 members of the Police Force only 1000 were reinstated and there was no distinguishing feature on account of which the remaining were not entitled to reinstatement. I may however be pointed out that in that case the Supreme Court held that there was no justification in treating the persons who were not reinstated differently without pointing out how they were guilty of more serious misconduct or the degree of indiscipline in their 22 case was higher than compared to those who were reinstated. It must necessarily follow from the decision of Singara Singh's case itself that if some persons are guilty of more serious misconduct than the other persons who were also similarly charged, it would be quite permissible to award higher punishment to such persons found guilty of serious misconduct”. It was thus a matter of evidence, on the basis of which, the finding regarding the active, leading and vital role in the matter of assault was required to be recorded and such course is held to be permissible by the learned Arbitrator, relying upon the decisions of the Apex Court. In view of this, there is no question of victimization or discrimination. The employees were made known of the specific charge for which they have been held guilty. Hence, no fault can be found with the view taken by the learned Arbitrator on this aspect. 22. In respect