Bombay High Court
Life Insurance Corporation Of India vs Tukaram Ganpat Marathe And Ors. on 14 January, 1999
Equivalent citations: [1999(82)FLR102], (2001)IIILLJ38BOM
JUDGMENT N.J. Pandya, J.
1. These two petitions are filed by the employer and employee respectively against the Award of the Central Government Industrial Tribunal No. 1, given in Reference No. CGIT-1/87/1990 on December 16, 1994.
T.C. Marathe (hereinafter referred to as the said "employee") alongwith another co-worker, was facing departmental proceedings before the Enquiry Officer of the Life Insurance Corporation of India, the employer (hereinafter referred to as such).
(i) The incidents related to what had happened on November 18, 1982 and November 19, 1982. That the said employee with his co- worker Mandavkar, working as Hamal of the employer, at the relevant time were supposed to carry out packing and unpacking work in the stationery department. On November 18, 1982 they were asked to pack the stationery in the boxes to be sent to the Parbhani Branch office and in that regard, in spite of the instructions, they have failed to pick and pack the stationery in the boxes and could not send it to Parbhani. A serious view was taken by the department that the stationery ought to have reached Parbhani Office as intended by the immediate superiors of the said employees. Virtually on November 19, 1982, in the afternoon only the said two employees attended the said work. All the three charges, therefore, in regard to the incidents of November 18, 1982 and November 19, 1982 relating to non-sending of packages to Parbhani Office, in fact, would amount to one incident, namely, disobeying the instructions of sending the packages to Parbhani. So far as spreading over of the incident on November 19, 1982 is concerned, it relates to the fact that the said employees without permission, had left the place of work with tools and they were found nearby the office of the Divisional Manager. In spite of sending messages to them to attend the work, they did not attend to it but left in the afternoon. When they gathered nearby the office of the Divisional Manager they also used hot words to him and went away.
(ii) That on the very day i.e., November 19, 1982, the second incident occurred, involving one Shri Kalbhor, a Record Clerk. The allegations are that the said two employees went to Kalbhor, whom they found attending the work which was supposed to have been done by them and taking umbrage they picked up quarrel with Kalbhor. At that time in the hands of Marathe, the delinquent employee, there was a saw which he was supposed to use as tool in doing his work of packing the boxes. But the allegation is that Kalbhor was assaulted by the said Marathe, who was having the saw in his hand and in the process of assault the shirt of Kalbhor was torn by the saw which was in the hands of Marathe and they started quarrelling in unruly manner in raised voices.
2. At the end of the enquiry, three charges were held to be established and the disciplinary authority, after having accepted the enquiry report, proceeded to punish the said employee and accordingly ordered the punishment of dismissal of the said employee. Before that the show cause notice was already issued. In reply to the show cause, although a submission was made by the said employee with regard to his difficulty in not completing the work and prayed that full opportunity of being heard be given to him but the same was of no avail and the proposed punishment of dismissal from the service was finally awarded to the said employee.
3. This has resulted in filing departmental Appeal and thereafter, making representations to the highest authority by the said employee. After failing before these two authorities, the matter . was finally brought before the Industrial Tribunal No. 1 through the conciliation proceedings.
4. The Industrial Tribunal in its Award dated December 16, 1994 found that the enquiry was properly conducted. It was further found by the learned Tribunal that the conclusion arrived at by the Enquiry Officer is possible of being arrived at on the basis of the material evidence available before him and no perversity was found therein and therefore, the learned Tribunal confirmed the finding of guilt recorded against the delinquent employee by the Enquiry Officer. However in the alternative aspect of the punishment, the learned Tribunal found room to interfere with it and therefore, in exercise of its power under Section 11-A of the Industrial Disputes Act, 1947 the order of dismissal was substituted by order of reinstatement with 50% back wages. No doubt it has been recorded by the Tribunal in its order on page 55, internal page 16, that the employee before him, namely, said Marathe, was scheduled to retire in the year 1994. The fact of retirement is accepted but it is agreed that only in the last year i.e. actually on March 1, 1998 Shri Marathe retired.
5. Both the parties have filed writ petitions. The employer is strenuously maintaining that the case of dismissal against the said employee was eminently justified and therefore, the interference by the Tribunal was totally unwarranted. On the other hand the employee has been maintaining in his petition that the Tribunal ought to have found that the dismissal on the basis of finding of the Enquiry Officer is perverse because the evidence with regard to the second charge, namely the alleged assault is non-existent and the Enquiry Officer himself has also expressed insufficiency of evidence to that effect. In the alternative, it is again maintained that the order of the Tribunal with regard to the punishment should not be interfered with because even if the said charge is established, it is not of that violent in nature as was sought to be made out as per the charge originally framed. This is no doubt without admitting the correctness of findings of the Enquiry Officer's report and his establishment of the second charge.
6. The summary of the submissions would thus be that so far as the employer is concerned, the finding of the Enquiry Officer is supported by the evidence on the record and so is the order of the dismissal. From the employee's point of view, the alternative submissions are made with regard to both the charges. So far as charge No. 2 is concerned, while maintaining that the said charge has not been established the employee submitted in the alternative that even if the said charge is established, it is not that type of assault which creates atmosphere of threat and insecurity in the office and behaviour of unruly manner in. the office during the working hours. So far as the' physical manhandling is concerned, the Enquiry Officer himself has indicated that there is no sufficient evidence in this regard.
7. So far as the second limb of the argument of the employee is concerned, it supports the order of the Tribunal in regard to his reinstatement with 50% of back wages. The latter aspect can well be understood because the said employee was to already retire on March 1, 1998. He, therefore, was more interested in getting the retirement benefits for which he succeeded in making this alternative submission. It is an admitted position that the said employee will get retirement benefit, if the order of the Tribunal is maintained. However, that is exactly where the employer has jumped up to show that it was the employee who asserted before the Tribunal that his past service record is crystal clear and without any blame. However, there were as many as 8 different incidents against the said employee as set out in the document submitted before the Tribunal as listed in Exh. V at page 139, starting from charge-sheet issued to him in the year 1973 to the order imposing penalty on him in the year 1983. There have been 8 different incidents where different punishments were awarded for different incidents of indiscipline.
8. It is admitted by both the sides that if at all this Court is to go into the matter only with a view to examine the correctness, the Court should first ascertain whether the case of the employee is as such where the power under Section 11-A needs to be exercised. The employer has never referred to the past events. In fact the employer . while awarding the punishment of dismissal, had never gone into the provisions of the said Section. The authorities while awarding punishment of dismissal have gone back to the findings of the Enquiry Officer as accepted by the disciplinary authority, It is not, therefore, a case of taking certain material into consideration behind the back of the employee.
9. Now so far as the submission made with regard to the second charge on the basis of the Enquiry Officer's report is concerned, it is to be found at page 82, Internal page 6, and it is quoted:- "sufficient evidence did not come to light as to whether the shirt of Shri Kalbhor was torn by the saw in the hand of Shri Marathe". This prompted both sides to refer to the original record of the enquiry and find from it whether either Kalbhor, the alleged victim, say that his shirt was torn by the saw in the hands of the said employee or he was simply man-handled, if at all it so happened.
10. The statement recorded by Mr. Kalbhor is taken in its entirety at Exh. 33 and he has been cross-examined on behalf of the employee. In the cross-examination, he clearly states that he would not say that the saw was used to assault him. But he does maintain that because the saw, being in the hand of the said employee tucked (sic) to his shirt and it was torn by one inch, probably in the area under one of his sleeves.
11. The entire incident as happened is described by Shri Kalbhor, in his submission in the cross-examination, that in the manner in which these two employees entered into the area where he was doing the work of unpacking boxes and putting the boxes in the cupboard. The said employee, taking malice against him, as he was doing their work, picked up quarrel with Kalbhor and they questioned him as to why he was interfering with their work, and as such they were engaged in some heated altercation with Kalbhor. Kalbhor does maintain that the present employee, Marathe did have a saw in his hand and therefore, it was this saw which has resulted in the said tearing of his shirt.
12. In this background it was urged on behalf of the employee that when according to the Enquiry Officer also there is no sufficient evidence, the Enquiry Officer should not have come to the conclusion with regard to the charge No. 2 that it has been established. On the basis of threat, it was urged that this finding be thus set aside and therefore, the entire order of punishment should also go away. Of course, alternatively it has been submitted with regard to the punishment, that their is ample scope for interference as done by the Tribunal.
13. On behalf of the employer, it has been urged here that the delinquent employee, who along with his companion on the other hand: dilly-dallied in the work assigned to them, carrying tool in his hand left the work place and he picked up quarrel with the persons who were, in fact, working. The assault as set out in the charge-sheet has to be understood in the background of the atmosphere created in the office and the behaviour of these employees started from previous day i.e. November 18, 1982, spreading over next day, till evening. According to the employer, on the one hand they were not completing the work assigned to them and the other they picked up quarrel with the other employees, who were in fact, working. But so far as their own work is concerned, on the pretext of trying to meet the Divisional Manager, they whiled away time.
14. If all the three charges are taken into consideration and the defences raised with regard to the incidents of November 18, 1982 and November 19, 1982 are also taken together, the behaviours of these employees if taken in continuant, indicates that right from November 18, 1982 they started holding out excuses in not doing the work assigned to them. The first excuse was that the saw in question does not have teeth properly sharpened. Thereafter the said employees chose to go to the Divisional Manager on the next day. But on the previous day they had left the Office without completing that work assigned to them and on next day also when they resumed the work only in the afternoon, it was preceded by the quarrel with Kalbhor. To deal with the said acts of the employees, the domestic enquiry, and disciplinary actions are essential means, that imposes a discipline in a workman. More so in a public establishment like Life Insurance Corporation, which is a large organisation, having country wide operation, It is very essential to maintain discipline.
15. An unruly behaviour by itself is repugnant to the discipline and will have impact on rest of the staff members also. If this behaviour was to be confined to quarrelling employees only outside the office premises or even in the office premises worked in a remote corner, there is possibility of it not even being noticed by other employees. Obviously in that case, the impact will not be felt by their co-workers. If that be so, the seriousness of the incident will certainly be reduced considerably.
16. In the instant case, the disciplinary authority have taken action, taking in its entirety the incident and especially when it had an impact on other employees working in that very place where the incident occurred, they have chosen to impose the aforesaid penalty. The authorities, on the one hand have to maintain discipline among the employees and to see that the morale of the other employees is kept up and on the other while taking disciplinary action, signals should not be sent out to the effect that any unruly behaviour having wider impact, will be dealt with leniently. As noted above, one has to go back to the time span during which the incident occurred. During its continuation, the atmosphere that was created and that prevailed on account of continuation of the incident also has to be borne in mind. The witnesses have clearly stated that because of the said behaviour of the employee and the assault, the atmosphere in the office had become very tense and the 5 employees working in the area were feeling threatened. In this background, if the said charge of the employee, having used the saw is taken into consideration, as noted by the Enquiry Officer, the assault is certainly proved and the impact of shirt having been torn because of the employee having saw in his hand will play its own part in creating the said atmosphere of tenseness and threat.
17. With regard to the overall question of imposing discipline, keeping up morale and maintaining the atmosphere of security for other employees to work is concerned it is quite clear that the behaviour of the said employee was detrimental to it. The conclusion, therefore, that the charge is established, in my opinion is, therefore, correct and cannot be said to be perverse.
18. So far as the other finding of the Tribunal is concerned, I, therefore, do not find any reason to interfere with the same. This being my conclusion as to the enquiry as well as the finding of guilt confirmed by the Tribunal is concerned, I go to the alternative submission of punishment. As noted above, the Tribunal has chosen to interfere for the reason set out in its order. This has been dealt with in paragraph 17 at internal page 50. Further with regard to the present case, the decisions cited by both the sides have been considered by the Tribunal in paragraphs 18, 19, and 20 of its order. In paragraph 22, the learned Tribunal records his conclusion to the effect that on 18th, the present employee Shri Marathe, against whom the enquiry was held, had made a grievance about the saw being not sharp enough. This has been taken to be the basis by the Tribunal, for having some justification for his grievance in regard to the refusal of work. However, this will not justify his non-resumption of work as even though the sharpened saw was given, yet he had gone away. The Tribunal also referred to some heated altercation with Kalbhor and then the Tribunal straight-away held that the penalty of removal from service was rather harsh and disproportionate. But suffice it to say, these are no reasons for interfering with the punishment.
19. The imposition of punishment is truly to be left to the disciplinary authority. Only in a case where the punishment is shockingly disproportionate then only either the Tribunal or the Court should interfere in it. In the instant case, in the background of the said history, which has placed sufficient reasons on answering the claim of clear and unblemished record, if the question of interfering with the punishment is to be examined, to my mind there is no case whatsoever for the same.
20. The learned Counsel for the employer has cited the decision of this Court, given in 1995 LIC 1914 where the case of a conductor of State Road Transport of Maharashtra was involved. Looking to the previous background, the Bus Conductor was earlier awarded minor punishment. The learned Judge has expressed himself to the effect that when the opportunity given to the delinquent for improvement is not availed of, showing mercy is totally misplaced exercise of discretion. He has correctly expressed himself in paragraphs 13 and 14 has pointed out that when and how the mercy should be shown and while admitting that justice must be tempered with mercy, it should not lead to subversion of mercy.
21. In the instant case, there is a breach of the employer's order by the employee. They came to the conclusion that if in the above background what happened on November 18, 1982 and November 19, 1982 is taken into consideration, it would be very much clear that the atmosphere of threat and insecurity in the office had been created by the said employee and, therefore, awarding the punishment of dismissal against the said employee was the only way out for the employer. Before the Tribunal the entire record was there and both the sides had addressed themselves on it. But the Award of the Tribunal is totally silent on this aspect. That is why I have gone into the same and consider the decision of the Tribunal, as above, by referring to the original record.
22. The net result, therefore, is that the petition filed by the employer, being Petition No. 1204/95 is allowed and the petition being No. 528 of 1996 filed by the workman employee fails. The order of the Tribunal is hereby set aside. The order of dismissal passed by the Authority is restored.
23. Rule is made absolute in Petition No. 1204 of 1995 and the Rule in Writ Petition No. 528 of 1996 is hereby discharged.