Bombay High Court
P.V. Pujari & Ors. vs Municipal Corporation Of Greater ... on 7 February, 1994
Equivalent citations: [1994(68)FLR1124]
JUDGMENT B.P. Saraf, J.
1. All these five writ petitions arise out of common order dated 8 February 1990 of the Industrial Court, Bombay on appeal under Section 84 of the Bombay Industrial Relations Act, 1946 ("the Act").
2. The first writ petition No. 1898 of 1990 has been filed jointly by the workmen. They were employees of the Municipal Corporation of Greater Bombay ("the Corporation"). Their services were terminated for alleged misconduct under Standing Order 20(i) and 20(r). The workmen filed applications under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946 before the Labour Court. The Labour Court declared the order of dismissal to be illegal and directed reinstatement with full back wages and continuity of service for the purpose of gratuity and pension. The Corporation appealed to the Industrial Court under Section 84 of the Act. The Industrial Court found the workmen guilty of misconduct under Standing Order 20(r) as also 20(i). It, however, observed that the punishment of dismissal was not warranted and to that limited extent confirmed the order of the Labour Court and held that the four workmen were entitled to the relief of reinstatement with continuity of service. The Industrial Court was however of the opinion that having been found guilty of misconduct under Standing Order 20(r) as also Standing Order 20(i), they deserved some punishment. It therefore, directed that only half of the back wages should be paid to them. The order of the Industrial Court was challenged both by the workmen and the Corporation. The workmen, aggrieved by the order so far as it denied them half of the back wages, filed writ petition No. 1898 of 1990 challenging that part of the order. The Corporation aggrieved by the order of reinstatement itself, filed the other four writ petitions challenging the order of reinstatement itself. As all these five writ petitions involve common questions of fact and law, they have been taken up together for hearing and disposal.
3. Before dealing with the rival legal contentions, it may be expedient to examine the incident that gave rise to the proceedings against the workmen concerned.
All the four workmen were serving with the BEST Undertaking of the Corporation - three of them as conductors and one Mr. P. V. Pujari as a clerk. They were attached to Ghatkopar or Dharavi depot of the BEST Undertaking. On 2 February 1984 these workmen were served with charge-sheets alleging that on the night of 12 November, 1983, alongwith others, they assaulted another bus conductor Shri B. K. Nangre who was also attached to Ghatkopar depot near Dadar T. T. An enquiry was conducted against them. The Enquiry Officer found them guilty of commission of misconduct under Standing Order 20(i) and 20(r). On the basis of the findings of the Enquiry Officer, the services of the above four workmen were dismissed by the Corporation on 18 February 1985. After giving approach letters, all the four workmen filed separate applications under Sections 78 and 79 read with Section 42(4) of the Bombay Industrial Relations Act challenging the orders of dismissal dated 18 February, 1985. The Labour Court found the order of dismissal illegal and directed reinstatement with full back wages and continuity of service. The Corporation appealed to the Industrial Court. The contention of the Corporation before the Industrial Court was that the alleged assault by the four workmen on another bus conductor of the undertaking of the petitioners amounted to misconduct under Standing Order 20(i) and 20(r) and therefore it was justified in taking disciplinary action against them and dismissing their services. The contention on behalf of the workmen was that the alleged assault did not fall under any of the above two clauses of Standing Order 20 and, as such, no action could have been taken against them for such alleged misconduct. The Industrial Court perused the relevant clauses of the Standing Order 20 and held that assault of another conductor amounted to misconduct under Standing Order 20(i) and 20(r) and accordingly held them guilty. The Industrial Court, however, did not approve the punishment of dismissal and directed reinstatement with continuity of service for the purpose of gratuity and pension but only with half back wages as against full back wages awarded by the Labour Court. The workmen have challenged the finding of Industrial Court in regard to the misconduct under Standing Order 20(i) and 20(r) as also the punishment of denial of half back wages inflicted on them. The Corporation is satisfied with the finding in regard to misconduct. It is aggrieved only with the operative part of the order directing reinstatement.
4. I have considered the rival submissions. I have also perused the relevant Standing Order. The facts of the case are not in dispute. The only allegation against the workmen concerned is that they assaulted another bus conductor. The uncontroverted factual position is that the alleged assault did not take place in the premises of the Corporation. It is also nobody's case that the workmen concerned or the assaulted workman were on duty at the material time. The incident took place at Khodadad Circle i.e., Dadar T. T. The said circle is near the bus stop. At the time of the incident, the concerned workmen were neither on duty nor in uniform nor were they wearing any badges. The assaulted workman was also not on duty. Admittedly, he was on leave from 7 November, 1983. There is no evidence on record about the nature of injuries. The allegation of the assault was denied by the concerned workmen. According to them, the concerned bus conductor sustained the injuries in the meeting held in the canteen where some trouble had taken place and there was a lathi charge by the police. This denial of the workmen was, however, not accepted by the Industrial Court.
5. The question that arises for consideration is that even if the allegations of the management are taken on their face value whether it will amount to misconduct under Standing Order 20(i) and 20(r). The learned counsel for the workmen Mr. Deshmukh submits that a reading of the relevant clauses of Standing Order 20 will clearly go to show that any and every incident of assault between the different workmen of the Corporation is not intended to be treated as misconduct under the Standing Order. According to the learned counsel, even if the standing orders are interpreted most liberally, a close nexus between alleged act of the workmen and the discipline in the industry is necessary. Counsel further submits that clause (r) of Standing Order 20 covers only cases of assault on or intimidation of a superior officer or officers or fellow-employee or employees of the Undertaking and not any and every officer or employee of the Corporation. According to the counsel, the alleged act of the workmen did not amount to misconduct under clauses (i) or (r) of Standing Order 20. The alternative submission of the counsel is that in any view of the matter considering the facts and circumstances of the case, the evidence on record, the fact that even the nature of injuries alleged was not brought on record nor the injured bus conductor was medically examined coupled with the fact that these four workmen continued to work even after the incident till their dismissal after about 15 months of the incident without any complaint whatsoever against them do not justify punishment of denial of half back wages. The maximum punishment that could have been awarded in such a case was "warning" or "censure".
6. Learned counsel for the Corporation, on the other hand, submits that clauses (i) and (r) of Standing Order 20 clearly cover a case of assault of any employee of the Corporation at any place. The further contention of the counsel is that having found the workmen guilty of misconduct under Standing Order 20(r) as also 20(i), the Industrial Court was not justified in interfering with the punishment awarded by the management and setting aside the order of dismissal and directing reinstatement.
7. I have carefully considered the rival submissions. Standing Order 20, so far as relevant reads as under :
20. The following acts or omissions on the part of an employee shall amount to misconduct :-
(i) drunkenness or riotous, disorderly, insolent or indecent behaviour, or any act subversive of discipline, on the premises of the undertaking or at the place of employment or in the performance of the Undertaking's duties or while wearing the uniform and/or the badge of the Undertaking.
(ii) assault on or intimidation of a superior officer or officers or fellow-employee or employees of the Undertaking; or while on duty or wearing the Undertaking's uniform, assaulting or intimidating, or being deliberately discourteous to the Undertaking's passengers or intending passengers.
If we dissect clause (i) we find that the following acts amount to misconduct :
drunkenness or riotous, disorderly, insolent or indecent behaviour, or any act subversive or discipline,
(i) on the premises of the Undertaking or at the place of employment; or
(ii) in the performance of the Undertaking's duties; or
(iii) while wearing the uniform and/or the badge of the Undertaking.
It is clear from the above clause that the acts specified therein amount to misconduct if they are committed on the premises of the Undertaking or at the place of employment. If committed outside the premises of the undertaking or the place of employment, these acts would not amount to misconduct within the meaning of this clause except when they are committed in the performance of the undertaking's duties or while wearing the uniform or badge of the undertaking. Evidently, the application of this clause in case of acts committed outside the specified area is intended to be treated as misconduct only if the other conditions mentioned therein are fulfilled. If the act is committed on the premises of the undertaking or at the place of employment, it would be immaterial whether it was in performance of the duties or at the material time the employee was wearing the uniform and/or badge or not.
Similarly clause (r) of Standing Order 20 also can be dissected as under :
(i) assault on or intimidation of a superior officer or officers; or
(ii) assault on or intimidation of a fellow-employee or employees of the Undertaking; or
(iii) while on duty or wearing the Undertaking's uniform, (a) assaulting or intimidating intending passengers;
(b) being deliberately discourteous to the Undertaking's passengers or intending passengers.
The first part of this clause refer assault etc. on the superior officer or officers or fellow-employee or employees of the Undertaking at any time or place, whereas the latter part of deals cases of assault or intimidation of passengers or intending passengers while on duty or wearing the Undertaking's uniform or being deliberately discourteous to the passengers of the undertaking. The two classes of persons referred to in clause (r) are :
(i) superior officers or fellow-employees of the Undertaking; and
(ii) passengers or intending passengers of the Undertaking.
8. The learned counsel for the Corporation submits that the expression superior officer or officers and fellow-employee or employees of the Undertaking should not be restricted to superior officers or fellow-employee respectively. It would cover all officers and all employees. The word "superior" which precedes the word "officer" or "officers" have been used by the legislature only by way of abundant caution.
9. I am not satisfied with the above submission of the learned counsel for the Corporation. It is clear even from a plain reading of clause (r) that it applies only to superior officer or officers or fellow-employee or employees. It does not apply to all officers or all employees of the Undertaking. A fellow-employee in common parlance would mean those persons who are working together at a particular point of time or at a particular place. This expression cannot be extended of the Undertaking. If that would have been the intention, there was no necessity of using the expression "fellow" with the word "employee". The word employee itself would have been enough. Such an interpretation would render the expression "fellow" qualifying an "employee" redundant which is against all well-settled cannons of interpretation.
10. On perusal of the order of the Labour Court and the Industrial Court, I find that there is nothing on record on indicate either the cause of the alleged assault by these four workmen on the other workman or the nature of the injuries sustained by him except the contention of the management that these four workmen who belong to one union assaulted another workmen who belonged to a rival union. In my opinion, that by itself does not justify any assault by these four workmen on another workman. In any event there is nothing to show any connection between the incident and the employment of these workmen with the Undertaking. I do not find any nexus between the alleged act of misconduct and the employment to bring it within Standing Order 20(i) and 20(r).
11. As observed by the Supreme Court in Glaxo Laboratories (I) Ltd. v. Presiding Officer, , and every misconduct committed anywhere irrespective of the time place where any when it is committed cannot be comprehended to be misconduct within the meaning of the Standing Order merely because it has some remote impact on the peaceful atmosphere in the establishment. There must be substantial, immediate and proximate linkage between the alleged act of misconduct and employment, which in the instant case is totally missing.
12. Under the circumstances, it is not possible to brand such an act as misconduct within the meaning of Standing Order 20(i) and 20(r) for the purpose of taking the disciplinary action against the workmen.
13. Once more fact is relevant in this connection. The incident took place on 11 November, 1983. The workmen continued to work as usual. They were not put under suspension even for a day. The charge-sheet was submitted on 24 January, 1984 and ultimately their services were terminated on 18 February, 1985. During this period of fifteen months, no incident is alleged to have taken place nor there is anything to show that there was even any complaint in regard to the conduct or behaviour of these workmen vis-a-vis other workmen. Under the circumstances, it is difficult to hold these workmen guilty of misconduct under Standing Order 20(i) and 20(r) on the basis of an isolated incident allegedly taken place far away from the place of work of the undertaking merely on the ground that the person affected therein happened to be an employee of the Corporation.
14. In view of the above, I am of the clear opinion that the Industrial Court was not justified in holding the workmen guilty of misconduct under Standing Order 20(i) and 20(r). The order of the Industrial Court is, therefore, set aside and the order of the Labour Court is restored. The workmen are entitled to reinstatement with full back wages and all other benefits.
15. In the result, writ petition No. 1898 of 1990 is allowed and the rule is made absolute. The other four writ petitions of the Corporation are dismissed and rule discharged.
16. Under the facts and circumstances of the case, there shall be no order as to costs. Certified copy expedited.