1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6462 OF 1997 Ramaesh K. Pullellu ...Petitioner vs. A-Dor Welding Limited & Anr. ...Respondents with WRIT PETITION NO. 6486 OF 1997 Shamsunder Mahadev Morye ...Petitioner vs. A-Dor Welding Limited & Anr. ...Respondents Appearance in above matters :- Mr.S.M. Dharap for the Petitioners. Mr.R.S. Pai, Sr.Counsel i/b. M/s.Haresh Mehta & Co. for Respondent No.1. CORAM : V.M. KANADE, J. DATED : JULY 18, 2009 2 ORAL ORDER :- 1 The petitioner by writ petition no.6462 of 1997 is challenging the order and award dated 27.5.97 passed by the Presiding Officer, 1st Labour Court, Pune in Reference IDA No.98/89. Brief facts are as under :- 2 The petitioner herein was working as a welder in the respondent company and he was also a representative of the workers on behalf of the union. The petitioner had joined the company with effect from 2.5.76. 3 The petitioner was issued a charge-sheet dated 20.4.1986 in which it was alleged that he had instigated the workers to go on illegal strike and disobey the orders of the superior and had led nearly 35 workers to leave the factory without obtaining signature of any of the authorities. It was also alleged that he was loitering in the 3 company instead of going to the department and was instigating the workmen to attend the funeral of Shri Tambe who expired on that day. It was alleged that he was pressuring the other workmen in other departments to follow him. He was asked to submit his explanation for committing the serious misconduct under the Model Standing Orders of 1946 Items 24 and 26. The petitioner denied all the allegations and he has stated in his reply that he had tried to prevent workers from leaving the company s gate and requested them to go to work and persuaded the officers to relieve the 3-4 workers from each department. He also stated that he had taken the gate pass at 11.30 a.m. and had left for the funeral since he was representing for the union and as per the unwritten practice, 3-4 persons from each department are permitted attend the funeral. 4 The management was not satisfied with the explanation which was given by him and decided to hold an enquiry and charge-sheet was issued against 4 the petitioner. Accordingly, an enquiry was held and Enquiry Officer held that the charges which were levelled against the petitioner were proved. The management, accordingly, issued an order of termination on the basis of Enquiry Report. The petitioner thereafter approached the government and since the conciliation failed, matter was referred to the Labour Court. The Labour Court, however, dismissed the reference. 5 Shri Dharap, learned Senior Counsel appearing for the petitioner firstly, submitted that the allegations which were levelled against the petitioner in the charge-sheet under item nos.1 to 5 were totally vague. He submitted that the findings recorded by the Enquiry Officer are perverse and contrary to the testimony of the witnesses. He invited my attention to the charges which were levelled against the petitioner, the statement made by the witnesses and the findings of the Enquiry Officer. He submitted that it was apparent that the 5 said findings of the Enquiry Officer were totally perverse. He submitted that the Labour Court also had accepted the finding of the Enquiry Officer without verifying whether the witnesses had, in fact, stated and the Enquiry Officer in his findings had observed. He, therefore, submitted that the findings recorded by the Enquiry Officer and the Labour Court, therefore, were totally perverse and were liable to be set aside. He further submitted that in the charge-sheet itself, it was stated that it was the practice in the factory that authorised representative of the union would attend the funeral of the workman. Shri Dharap submitted that the petitioner himself was authorised representative of union and as such, was authorised to attend the funeral. He further submitted that the management witnesses themselves had stated that the petitioner had obtained the gate pass for the purpose of attending the funeral, yet the Enquiry Officer and the Labour Court had given finding to the contrary. He further submitted that the Enquiry Officer and 6 the Labour Court had both held that the petitioner had instigated the other workers though in fact, the management s representative had not said anything on that ground. In support of the submission, the learned Counsel for the petitioner has submitted written arguments and has also relied on various judgments which shall be dealt with at the subsequent stage. 6 Shri Pai, learned Counsel for the respondent, on the other hand, submitted that Part I Award clearly stated that the enquiry had been held to be fair, legal and proper. He submitted that where the Labour Court had held that the enquiry was fair and proper, the appellate Tribunal could not substitute its opinion in the place arrived at by the Domestic Tribunal. Secondly, it was submitted that the High court while exercising jurisdiction under Article 226 of the Constitution of India could not substitute its own view to the view taken by the Labour Court unless the report of the Enquiry 7 Officer was perverse. He submitted that this Court while exercising writ jurisdiction could not reappreciate the evidence and interfere with the finding of the Enquiry Officer or the Labour Court. He further submitted that the petitioner had never advanced any argument of perversity of finding before the Labour Court and therefore, it was not open for the petitioner to advance the said argument before this Court. On the question of victimization, it was submitted by the respondent that the workman had not led any oral evidence to the Tribunal to establish the allegation of the victimization by the respondent company. He, therefore, submitted that the Labour Court had rightly rejected the plea of victimization alleged by the petitioner. He then submitted that so far as the preportionality of the punishment is concerned, the Labour Court had noticed that the workman was held guilty by the Enquiry Officer for serious acts of misconducts falling under Model Standing Order 24(a), 24(b), 24(k) and 24(l) and therefore, he submitted that no 8 case was made out by the petitioner for interference with the punishment imposed by him. He submitted that even this Court came to the conclusion that the punishment required any interference by this Court, even in the said case, the petitioner was not entitled for back wages. Both the learned Counsel for the petitioner and the respondent have tendered the written submission and have relied on judgments which would be considered at an appropriate stage hereinabove. 7 I have heard the learned Senior Counsel for the petitioner and the learned Counsel for the respondent, at length. I have perused the written submissions tendered by both the Counsel as also they have taken me through the judgments of this Court, Apex Court and other High Court on which reliance is placed and relevant portion on which reliance is placed by the petitioner. 8 Before I consider the rival submissions, it 9 is necessary to briefly give a chronology of events. Admittedly, the petitioner is office bearer and active played member of the company. The workman hereinafter referred for the sake of convenience the shall be referred to as  the petitioner and the respondent shall referred to as  the company . 9 On 16.4.1986, one Tambe who was employee in the respondent company expired. According to the petitioner, one workman has authority to attend the funeral. According to him, he and one Vavale told the workmen that they should first obtain permission from the higher officials and if permission is granted, only then they should attend the funeral. According to the petitioner, it was a unwritten custom in the company that in the event of death of one of the workers, two representatives of the union will be permitted to attend the funeral along with 3-4 persons from each department. The case of the petitioner is that he had obtained appropriate gate pass signed by the persons authorised to signed the 10 gate pass and had left the factory at 11.30 a.m. to attend the funeral. On the other hand, it is the case of the company that the petitioner had instigated the workers to attend a funeral and was seen loitering from one department to other and instigating the workers to attend the funeral without obtaining the gate pass and permission from the officer of the company. It is alleged that he had abused the officers and had taken away the workers along with him and therefore, had abandoned his work along with 35 other workers. 10 Similarly, the allegations had been made against the petitioner in Writ Petition No.6486/97 Shyamsunder Mahadev Morye who also admittedly an active member and the representative of the union. In the charge-sheet which was served, it was alleged that though according to the custom which was prevalent in the company that on such occasions, the representative of the union along with some workers from the other department would attend the funeral, 11 the petitioner had without taking permission of his superior officer during office hours and after leaving his place of work from 8 O clock in the morning, was loitering in the factory from place to place and instigating all workers that they should attend the funeral of late Tambe and at that time, the petitioner was instigating, threatening and pressuring the workers against their wishes to participate in the said illegal act and though it was necessary to obtain the signature of the supervisor on the gate pass or the head of the department, even then without informing anyone, the petitioner along with 35 workers went to the main factory gate and though they were prevented by the officers on the gate, the petitioner and the said 35 persons went out of the gate illegally and by threatening the watchmen. It was alleged that as a result, all the work in the electronic department came to standstill and therefore, amounted to illegal act. It was, therefore, alleged that the petitioner had resorted to misconduct within the 12 meaning of Clause 24 and 26 of the Standing Orders, 1946. The aforesaid standing clauses read as under :- 24(a) Willful insubordination or disobedience, whether or not in combination with another, of any lawful and reasonable order of a superior. 24(b) going on an illegal strike or abetting, inciting, instigating or acting in furtherance thereof. 24(k) drunkenness, riotous, disorderly or indecent behavior on the premises of the establishment. 24(l) commission of any act subversive of discipline or good behavior on the premises of the establishment. 13 The management examined the following witnesses : 1.Shri V.N. Rao, 2.Shri Ahir Rao, 3.Shri B.G. Apte, 4.Shri P.P. Jadhav, 5.Shri M.D. Kanitkar, 6.Shri R.V. Jadhav, 7.Shri P.B. Bhosale, 8.Shri M.D. Bhosale 11 Shri Rao in his statement has stated that in fact, he had issued gate pass to the petitioner Shri Pullellu for going out of the company authorising him by his signature as he was departmental in-charge and the petitioner had come to the gate in the morning at 11 O clock and he did not leave the company and waited in security cabin and left at 11.15 a.m. Some workers left with him, 14 some with authorised gate passes and others without gate passes. Perusal of the examination-in-chief and cross-examination reveals that nowhere Shri Rao stated that the petitioner-Shri Pullellu did all the things which were alleged in the charge-sheet. In fact, he had stated that the petitioner Pullellu and Shri Morey informed all the workers that they should resume duties and thereafter, told some workers to go to the funeral. From the evidence of Shri Rao, the allegation of instigation, pressurization or abatement/abandonment of work and threatening the workers does not appear to be found proved at all. In fact, the said statement indicates that the petitioner Pullellu and Shri Morey had tried to persuade the workers to first obtain the permission of the superior officers and for that purpose, the petitioner Shri Pullellu had right to approach the superior officers according to their hierarchy one after the other. The other witnesses Shri Ahir Rao also has not stated that Shri Pullellu had come to the department. Similarly, Shri B.G. Apte also in 15 his evidence nowhere stated that the petitioner deemed to have instigated or abated the strike and influenced the workers to leave the factory premises unauthorizedly. Shri Ramdas Jadhav has stated that Pullellu had asked Jadhav why the gate pass was not issued to Anthony and at his instance, it was issued to him. Shri M.D. Kanitkar also has stated that in fact, Shri Pullellu had told the workers that if they wanted to attend the funeral, they should first take the gate pass and then attend the funeral. Therefore, this witness also does not state that he had instigated the workers and had told them to attend without gate passes. Shri Piter Paul Jadhav in his evidence has stated that the Shri Pullellu was holding authorized gate pass issued by departmental in charge. The question, therefore, that the petitioner Pullellu left the company without gate pass signed by departmental in charge, therefore, clearly is not proved. This fact is corroborated by Shri M.D. Bhosle, watchman- supervisor who also stated that Pullellu had 16 authorized gate pass. Shri M.D. Bhosale, in fact, has stated that both Shri Pullellu and Morey had authorized gate passes. The petitioner also examined himself and had narrated the sequence of events as to how he had persuaded the workmen to secure gate passes from security officers. In spite of these evidence, the Enquiry Officer, on the contrary, has made the following observation about the evidence of these witnesses On getting this news S/Shri Moraye and Vavale got irritated and all of them were saying that it would not be irritated and all of them were saying that it would not be allowed. Shri Moraye further said that he would stop the working of Shop Floor of the Electronic Department. S/Shri Ramdas Vavale and Pulelu supported Shri Moraye and all of them went away. 17 12 This observation is not supported by the testimony of Shri Rao. The said finding, therefore, of the Enquiry Officer, is patently perverse. Similarly, in respect of Apte s evidence, the Enquiry Officer has observed that Shri Pullellu and Morey were talking to the workers, they had told the workers that all of them should go even management did not give them permission and asked them to await for five minutes as they were going to see the General Manager. This statement which is ascribed to Shri Apte does not find any place in his deposition. This observation also is incorrect. From the statement of Peter Paul, Ramdas Jadhav and Kanitkar, they in fact, have supported the version of Shri Pullellu. Pullellu and Morey both had authorised gate passes. The other 35 workmen, however, on their own left the factory premises without gate passes. No action was taken against them, Pullellu and Morey - the petitioners herein had both asked the workers not to leave the 18 factory premises without gate passes. The version of the petitioner, therefore, has been corroborated by these management witnesses. Yet the Enquiry Officer has given a finding that More, Vavale and Pullellu were annoyed with the decision of the General Manger and Shri Pullellu had supported the views of Shri More. This observation is not supported by the testimony of the management witness and therefore, the said finding is patently perverse. The Enquiry Officer further has stated that Shri Kanitkar CW-5 had supported the deposition of Shri Apte CW-3 and had stated that Shri Pullellu had instigated the workers and had advised them to prepare their gate passes and if signature was not given by the supervisor, they should come to the gate without gate passes. The said finding also does not appear to be supported by the testimony of all these witnesses. Similarly, perusal of the finding that from the chain of events at about 7.30 a.m. To 11.30 a.m. it is clear that Shri Pullellu had played a positive role in creating unrest among workers of 19 Electronic Department and instigated them to defy the Authorities and to go out though in fact they were not permitted to do so, this observation also is not borne from the record and by the testimony of the witnesses examined by the prosecution. 13 When the matter was referred to the Labour Court, the Labour Court is expected to review the findings of the Enquiry Officer as an independent authorities. The Labour Court also, however, appears to have in one paragraph assessed evidence in the following manner :- The next point which I heard is about victimisation. It is argued by the second party that being union activist, he is victimised. Mr.Gupte, Advocate for the first party relied on the Judgment of the Supreme Court in case of B.B. Patel Vs. Bharat Iron Works reported in 36-(F.L.R.) Page-72 . In this judgment, their Lordships have given verdict of caution and laid down a law that charge of victimisation or unfair labour practice is a very serious charge which requires not only detail pleadings but also proper evidence. 20 In the present case, there is neither evidence in the enquiry nor before me about the same. As a matter of fact, the deposition of Mr.Rao in his cross-examination on Page-19 of the enquiry shows that the most of the issues are being solved by the discussion with the union. On page 13 of the enquiry proceedings of the enquiry, it reveals that Mr.Rao himself has given gate-pass to the second party on his own in the morning. From entire evidence it is seen that, there is no victimisation for union activities. As per the verdict of the Supreme Court in the above case, holding office in a union per say would not lead to the conclusion of victimisation. I am therefore, not ready to accept the theory of victimisation. 14 The Labour Court, therefore, without appreciating the evidence on record, has accepted the findings of the Enquiry Officer and has confirmed the said findings. 15 While exercising its jurisdiction under Section 11A of the said Act, though the Labour Court is not supposed to substitute its own view to the 21 view taken by the Enquiry Officer, it is expected to see whether the findings recorded by the Enquiry Officer are proper or not and for that purpose, is expected to go through the said evidence. In the instance case, unfortunately, the Labour Court has failed to exercise the jurisdiction vested in it under Section 11A of the said Act and has endorsed the finding of the Enquiry Officer without going through the evidence on record. The findings, therefore, of the Enquiry Officer and the Labour Court, in my view, are patently perverse. 16 So far as the other petition is concerned- the petitioner in Writ Petition No.6486/97 Shri S.M.Morey, the charges which are levelled against him are identical. Seven witness had been examined by the management and the evidence given by these witnesses are also identical. So far as Mr.Morey is concerned, Shri Rao in his evidence has stated that Morey had stated that if permission is not granted by the management to the workers to attend the 22 funeral, in that event, the work in the factory will be stopped and also workers would attend the funeral without permission. Apart from this evidence raised and the evidence in respect of both the petitioner and other witnesses, however, the statement of Shri Rao and therefore, in my view, the finding recorded by the Enquiry Officer against Shri Morey that mis- conduct had been committed by him and the charges levelled against him were proved, were also not borne out by the record. In fact, from the evidence which has come on record, it clearly indicates that the charges which are levelled against both the petitioners have not been proved. In the charge- sheet it was patently alleged that only union representatives would be allowed to attend the funeral and the petitioners were not given gate passes and yet they left the factory premises without obtaining gate pass which was duly signed by the superior officers. This charge has not been proved as can be seen from the deposition of the witnesses which are examined by the management. On 23 the contrary, it has come on record that all the witnesses have stated that both the petitioners were given gate passes which were duly signed by their superior officers. Secondly, both the petitioners were admittedly members of the union and were representing the union in various matters and as such even according to the charge-sheet, such union representatives were permitted to attend the funeral of Shri Tambe. Thereafter, it is alleged that Shri Pullellu was loitering in the factory premises and had gone to number of departments and was instigating the workers to attend the funeral. The evidence which has come on record clearly indicates that though the workers wanted to attend the funeral of Shri Tambe without obtaining gate passes, the petitioners, on the contrary, had persuaded the workers not to do so and they were asked to obtain gate passes from their superior officers. The evidence of all the witnesses indicates that Shri Pullellu and Shri Morey had gone to various departments in order to obtain permission of the 24 superior officers in order to enable the workmen who were willing to attend the funeral to obtain the requisite gate passes. This falsifies the case of the management that the petitioners were trying to instigate the workers to abandon their work and not to obtain gate passes. Shri Pullellu has in his evidence stated that in fact, the workers had decided not to attend the factory and to attend the funeral. However, both the petitioners had persuaded the workers not to do so and had told them to obtain permission from the management. The evidence given by the petitioners about the incident,in question, is more probable and the allegations made against the petitioners in the charge-sheet is falsified by the evidence of the witnesses examined by the management. The allegation, therefore, of illegal strike by the petitioners herein has not been proved at all. The Enquiry Officer, therefore, has recorded his finding which is contrary to the record. He has conveniently ignored the evidence given by the other management witnesses who have not blamed the 25 petitioners in the entire evidence. The Enquiry Officer has relied on stray statement of Shri Rao and has held that charges levelled against the petitioners had been proved. 17 The question which falls for consideration is whether the punishment imposed by the management is disproportionate. In the present case, even assuming that the findings given by the Enquiry Officer are not perverse and it would have proceeded to examine the punishment which is imposed on the petitioners herein on the basis of the charges which were levelled against him. In my view, even if the charges are held to be proved, the punishment is clearly disproportionate to the alleged misconduct. 18 It is an admitted position that one of the co-workers had died in the hospital and his funeral was to take place at 11.30 a.m. In the morning. It has come on record and evidence to that effect has 26 been given by the management witnesses that in the past, the workers were permitted to attend the funeral of co-workers. In fact, in the evidence of the management witnesses, it had come on record that the union representatives and 3 to 4 persons from each department were permitted to attend the funeral of a co-worker. It has come on record in the cross-examination of the management witnesses that they are