Bombay High Court
Bhavani Metal Works vs Pandurang R. Sawant And Ors. on 23 November, 1990
Equivalent citations: (1994)IIILLJ711BOM
JUDGMENT D.R. Dhanuka, J.
1. This petition is directed against the award dated 16th June 1987 made in Reference (IDA) No. 1097 of 1981 by the Presiding Officer, Second Labour Court, Bombay, (Respondent No. 4 herein). The facts and circumstances leading to the filing of this Petition are as under:
2. (a) The Petitioner is a registered partnership firm carrying on business of manufacture of pressure die-cast components in its factory situate at Sewri, Bombay. The Respondent Nos. 1 to 3 are the workmen who were employed by the Petitioners to work in their factory. On 20th February 1981, the Respondent Nos. 1 to 3 were served with individual charge sheets alleging that the Respondent Nos. 1 to 3 had assaulted one Sadhu Saran Sadhwani, another workman, while he was going back from the factory on 12th February 1981 after finishing his work. The Petitioner-employer alleged that the Respondent Nos. 1 to 3 workmen were guilty of misconduct under model Standing Order 24(k) and (1) which read as under:-
"24.(k) : Drunkenness, riotous, disorder or indecent behaviour on the premises of the establishment;
(1) Commission on any act subversive of discipline or good behaviour on the premises of the establishment";
The Respondent Nos. 1 to 3 submitted their individual written explanation on 21st February 1981 denying the charges and contending that the said charge-sheets had been issued to victimise them on account of their trade union activities. One Shri H.N. Avishia was appointed as the Enquiry Officer by the petitioners. After holding of the enquiry, the Enquiry Officer submitted his report dated 7th May 1981 to the management of the petitioner-company, holding that the Respondent Nos. l to 3 were found guilty of the charges levelled against them. On 15th May 1981, the petitioner-employer passed three separate orders of dismissal against each of the workmen concerned i.e. the Respondent Nos.l to 3.
(b) By an order of reference dated, 27th November 1981, the Deputy Commissioner of Labour (Conciliation) made a reference of the dispute raised by the Respondent Nos. 1 to 3 workmen claiming reinstatement with full back wages and continuity of service to the Respondent No. 4 Presiding Officer. The said reference was numbered as Reference (IDA) No. 1097 of 1981.
(c) The Labour Court framed several issues during the course of adjudication. Issues framed by the Labour Court are as under:-
"1(1) Whether the enquiry conducted against Shri Pandurang R. Sawant (i.e. Respondent No. 1 herein), Pandhari Bhalekar (i.e. Respondent No. 2 herein) and Nandkishore Sawant (i.e. Respondent No. 3 herein) is fair and proper and in accordance with law?
(2) If so, does employer (i.e. the Petitioners herein) prove by further evidence the alleged misconduct of workmen (i.e. the Respondent Nos.l to 3 herein)?
(3) Whether the findings of the Enquiry Officer are perverse?
(4) Whether the punishment of dismissal of the said workmen (i.e. the Respondent Nos. 1 to 3 herein) amount to victimisation?
(5) Whether the punishment of dismissal is shockingly disproportionate to the alleged misconduct?
(6) Whether the said workmen (i.e. the Respondent Nos. 1 to 3 herein) are entitled to the relief of reinstatement with continuity of service and back wages?
(7) What order".
(d) By the impugned award dated 16th June 1987 the Labour Court held that the enquiry conducted against the Respondent Nos. 1 to 3 was Fair and proper and in accordance with law. By the said award, the Labour Court held that the findings of the Enquiry Officer were liable to be considered as perverse, as the Petitioner-Company had no right to take action in respect of the alleged misconduct when the incident had taken place outside the factory premises. The incident of the alleged assault had taken place outside the factory premises nearly at a distance of 100 metres. It emerges from the record that Sadhu Saran was found working on Thursday, while other workers were agitating for Thursday as a weekly off, etc. It appears that the Labour Court took in view that the Petitioner-Company could not take cognizance of the said assault and charge-sheet the workmen (Respondent Nos. 1 to 3) inasmuch as the relevant Standing Order could be applicable only if the co-workman concerned was assaulted on the premises of the establishment and not otherwise. The Labour Court did not discuss the merits of the evidence at all. The Labour Court also did not scrutinise as to whether the findings of the Enquiry Officer contained in his report dated 23rd March 1981 were justified by the evidence before him or not. Having taken the view that the management could not take action in respect of the alleged misconduct imputed to the Respondent Nos. 1 to 3, it was held on that limited ground that the findings of the Enquiry Officer were perverse. In this view of the matter, the Labour Court also held that the punishment of dismissal was "shockingly disproportionate" to the alleged misconduct. The Labour Court allowed the reference and directed the Petitioners to reinstate the Respondent Nos.l to 3 with continuity of their service within one month from the date of the award. By the said award, the Petitioner-Company was directed to pay full back wages from 15th May 1981 till reinstatement to the Respondent Nos.l to 3 workmen.
3. On 21st September 1987, this petition was admitted by Variava, J. Interim relief sought on behalf of the Petitioner-employer was, however, declined by this Court, in view of the findings recorded in the award in favour of the Respondent Nos.l to 3. It appears that that the Petitioners carried the matter in appeal before the Hon'ble Division Bench. The Hon'ble Division Bench granted stay of payment of back wages on the conditions that the Petitioner - employer would furnish the requisite bank guarantee in favour of the Prothonotary and Senior Master of this Court, i.e. in the sum of Rs. 75,000/-. This said bank guarantee has been renewed from time to time. I am so informed by the learned Counsel for the petitioners. In view of there being no stay order in respect of direction of reinstatement, the Respondent Nos.l to 3 have already been reinstated subject to the result of the petition.
4. It would have been much better if this dispute was settled between the parties before the High Court and this litigation was concluded. The matter was adjourned on few occasions for this very purpose. Since no settlement has been possible this petition has to be disposed of on merits and in accordance with law.
5. Section 11-A of the Industrial Disputes Act, 1947 has made a radical departure in the law as explained by the Apex Court in detail in its judgment in the case of The Workmen of Firestone Tyre & Rubber Co. of India (Pvt) Ltd. and Ors. v. The Management and Ors., reported in 1973 1 LLJ at page 278. Prior to incorporation of Section 11-A in the Industrial Disputes Act, the Labour Court or the Industrial Tribunal could interfere with the findings of the disciplinary authority on limited grounds. The Labour Court could set aside the findings of the Enquiry Officer and interfere with the orders of dismissal or discharge only if the findings recorded were perverse or only if the workman was victimised by the management and the entire action lacked good faith. After Section 11-A has been incorporated in the Industrial Disputes Act, the Tribunal considering the reference is bound to address itself to the question of reapraising the evidence and hold one way or the other as to whether the finding on the issue of misconduct is justified by the acceptable evidence before the Enquiry Officer or before the Tribunal. It is unfortunate that even after 17 years of delivery of the judgment by the Hon'ble Supreme Court in the case of The Workmen of M/s. Firestone Tyre & Rubber Co. of India Ltd. (supra) and even after 19 years of incorporation of Section 11-A in the Industrial Disputes Act, the issue which is being framed by the Tribunal is as to whether the findings recorded by the Enquiry Officer are perverse or not. If the question to be asked is as to whether the finding is perverse, the approach of the Tribunal is bound to be very narrow. In such a case, if there is such evidence to warrant the finding, there is an end of the matter and the Tribunal would not be able to interfere with the finding of the Enquiry Officer, That was the law prior to 1971, i.e. before Section 11-A was incorporated in the Industrial Disputes Act. That is not the law now. The Tribunal is not merely entitled but is duty-bound to examine the question as to whether the workman is guilty of misconduct imputed to him or not by reappraising the evidence which was before the Enquiry Officer and the evidence before it. In this view of the matter, the issue should have been framed to cover this aspect of the matter in the following terms: -
"Whether the finding of misconduct is justified by the evidence led during the course of the enquiry or before the Tribunal?"
In this case, the Tribunal has not applied its mind to the evidence led during the course of the enquiry and has not addressed itself to the question as to whether the report made by the Enquiry Officer on factual aspect is correct or not on merits.
6. The Labour Court in substance has proceeded on the footing as if the earlier judgment of the Hon'ble Supreme Court in the case of Mulchandani Electrical and Radio Industries Ltd. v. Their Workmen reported in 1975 1 LU at Page 391 has ceased to be good law. The Labour Court has taken this view by interpreting the subsequent judgment of the Hon'ble Supreme Court in the case of Glaxo Laboratories (I) Ltd. v. Labour Court Meerut and Ors. reported in 1984 I LLJ at page 16. The earlier judgment of the Hon'ble Supreme Court in the case of Mulchandani Electrical and Radio Industries Ltd. was cited before the Hon'ble Division Bench of the Hon'ble Supreme Court in the case of Glaxo Laboratories (I) Ltd. The said earlier judgment was distinguished by the Hon'ble Supreme Court in the Glaxo Laboratories' case and has not been overruled. It could not have been so overruled, because the earlier judgment was also delivered by a Bench of three Hon'ble Judges of the Hon'ble Supreme Court and the above referred subsequent judgment was also delivered by a Bench of three Hon'ble Judges of the Hon'ble Supreme Court.
7. In the case of Mulchandani Electrical and Radio Industries Ltd. v. Their Workmen (supra) another co-workmen is supposed to have been assaulted while he was travelling in the train between Thane and Mulund Stations, which was outside the factory premises of the establishment. The question before the Court was as to whether the assault on another workman by the charge-sheeted workman while he was travelling in the train between Thane and Mulund could be construed as a misconduct within the meaning of Standing Order 24(1) reproduced in paragraph 6 of the said judgment. It was held by Gupta, J., speaking for the Bench of the Supreme Court that the said Standing Order 24(1) did not take within its sweep merely the acts committed on the premises or precincts of the establishment. It was held by the Court that the acts subversive of discipline and good behaviour would constitute misconduct if consequences of such acts had the effect of the said Standing Order 24(1) within the premises or precincts of the establishment. In other words, if one workman assaulted another workman at a place far away from the factory premises, which assault has no consequence on the working of the factory itself, such an act would not amount to misconduct. It would be a "private assault", if one may use this expression, and the employer will have no right to adopt proceedings to punish a workman by adopting disciplinary proceedings. A somewhat similar question arose before the Hon'ble Supreme Court in the case of Glaxo Laboratories (I) Limited v. Labour Court, Meerut, and Ors. (supra), to which a reference is already made above. The Standing Order required to be interpreted in that case was not worded in the same language as the Standing Order which came for interpretation in Mulchandani's case was worded. In Paragraph 12 of the judgment in Glaxo Laboratorie's case one finds relevant discussion. In the abovereferred subsequent judgment, the Hon'ble Supreme Court distinguished the earlier judgment in Mulchandani 's case by inter alia observing as under:-
"The decision (meaning thereby the decision in Mulchandani s case) proceeds on the language of the Standing Order which came for interpretation before this Court. There is a marked difference between the language of Clause 10 of S.O.22 under which action is proposed to be taken by the appellant in this case (meaning thereby Glaxo Laboratories' case) and Standing Order 24(1) that came for interpretation in that case."
I do not wish to express any opinion on the question as to whether the ratio of the judgment in Glaxo Laboratories' case is attracted in this case or whether the ratio of the judgment in Mulchandani's case is attracted. That would depend upon interpretation of the Standing Order relied upon by the Petitioner-employer and also the findings of fact which will be recorded in this case by the Labour Court in view of its larger jurisdiction under Section 11-A of the Industrial Disputes Act, 1947. I must, however, make it clear that the judgment of the Hon'ble Supreme Court in Mulchandani's case is not overruled and both these judgments will have to be considered, interpreted and applied in the light of the contents of the Standing Order relied upon by the Petitioner-employer in this case and also in the light of the factual findings which will be recorded by the Labour Court after reappraisal of evidence and other material on record.
8. In this view of the matter, it is obvious to me that the reference, with respect to the learned Judge of the Labour Court, is not disposed of in accordance with law and the matter will have to be reconsidered on remand in the light of the observations made hereinabove.
9. In view of the above discussions, I pass the following Order:-
(1) The impugned award dated 16th June 1987 is set aside and the reference is remanded to the Labour Court for reconsideration, after framing proper issues. The Labour Court shall decide the matter on the material which already forms part of the record so that the reference can be expeditiously disposed of.
(2) Having regard to the present situation, it is not necessary to disturb the interim orders which are in force today. In other words, pending the disposal of the reference on remand by the Labour Court, the Respondents Nos. 1 to 3 shall continue to be reinstated as if reinstated under the interim order of this Court as an interim measure. Similarly, the Bank guarantee furnished by the Petitioner employer in the sum of Rs. 75,000/- shall be renewed by the Petitioner-employer and shall continue to be kept in force till after the disposal of the reference and making of the fresh award by the Labour Court and a period of two months thereafter. In other words, both the Petitioner-employer and the Respondent Nos. 1 to 3 employees shall have full opportunity to participate in the proceedings on remand and the present arrangement of continuing the Respondent Nos. l to 3 in service without prejudice to the disputes which are already under adjudication and the Bank guarantee already furnished shall continue. It is, however, clarified that this arrangement is not being continued on merits of the case, the merits of the case are still to be investigated on remand by the Labour Court, but the same is being continued as a matter of fair and reasonable interim arrangement so that no hardship is caused to the workman or to the employer in the meanwhile.
(3) Disputes in this case arose out of the incident which took place about ten years ago. The laws delays have unfortunately contributed to the human sufferings on either side. The Labour Court is directed and requested to dispose of this reference expeditiously and within a period of six months from the date of receipt of the writ, as far as possible. Both the learned Counsel assure the Court that their respective clients will co-operate with the Labour Court in expeditious disposal of the reference on remand.
(4) I am informed by the learned Counsel on both sides that the Respondent No. 4 - Presiding Officer is promoted to the Court of Small Causes at Bombay. The reference on remand shall be disposed of by his successor in the Second Labour Court at Bombay.
(5) If the order of dismissal is upheld and no direction is given by the Labour Court for reinstatement on remand, the Respondent Nos. 1 to 3 employees shall be entitled to challenge the award which may be passed by the Labour Court on remand. In such an eventuality, the Respondent Nos. 1 to 3 shall continue to be reinstated for a period of two months only from the date of the award, as an interim measure, without prejudice to the rights of both sides to challenge the award on remand.
(6) Having regard to the facts and circumstances of the case, there shall be no order as to costs of the petition.
(7) The petition is disposed of accordingly.