Bombay High Court
Bhola S/O Baso Rai vs M/S. Sharda Industries, Engineering ... on 1 May, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5618 OF 2015
Bhola s/o Baso Rai,
Aged about 60 years, Occupation - Nil,
R/o Sharda Industries, Kamptee Road,
Nagpur. .... PETITIONER
VERSUS
M/s. Sharda Industries,
Engineering Works Ltd., Kamptee Road,
Nagpur, through its Manager. .... RESPONDENT
______________________________________________________________
Shri J.L. Bhoot, Counsel for the petitioner,
Shri R.B. Puranik, Counsel for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 03-09-2018
DATE OF PRONOUNCING THE JUDGMENT : 01-5-2019
JUDGMENT :
This petition emanates from B.I.R. Case 34/1988 which is decided by the First Labour Court, Nagpur by judgment dated 16-7-2007.
2. The issue before the First Labour Court was the legality or ::: Uploaded on - 02/05/2019 ::: Downloaded on - 03/05/2019 02:07:08 ::: 2 wp5618.15 otherwise of the termination of the employee-the petitioner herein, by order dated 08-3-1988.
3. The First Labour Court decided the preliminary issue of fairness of enquiry against the employee. However, holding that the punishment of dismissal is shockingly disproportionate to the proved misconduct, the First Labour Court allowed the application under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946 ("BIR Act" for short) partly and directed the employer to reinstate the employee in service with continuity of service and 25% back-wages.
4. The judgment of the First Labour Court was challenged by both the employee and the employer in appeal before the Industrial Court. By common judgment dated 07-1-2014, the Industrial Court dismissed B.I.R. Appeal 2/2007 preferred by the employee and allowed B.I.R. Appeal 1/2008 preferred by the employer. Dissatisfied, the employee is invoking writ jurisdiction.
5. Heard Shri J.L. Bhoot, learned Counsel on behalf of the employee and Shri R.B. Puranik, learned Counsel on behalf of the employer.
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6. Few facts, which are either admitted or are incontrovertible may now be noted. The employee was working as Tongsman since prior to 01-1-1973. The employee contends that till the issuance of charge-sheet dated 23-2-1987 his service record was blamingless. The misconduct alleged is that on 19-1-1987 between 5-00 p.m. to 6-00 p.m. the employee and two others namely Ramdeo Prasad and Natthuni abused the co-employees Shivprasad Sahu and Midai and when the Foreman Shri Mahendradeo intervened, he was threatened. The threat attributed to the employee reads thus :
" dc ls Qksjeu cu x;s gks ge rqedks ns[k ysaxs "
The employee denied the charges. A departmental enquiry was held, the enquiry officer found the employee guilty of abusing his co-workers and threatening the Foreman and by order dated 08-3-1988 the employee was dismissed.
7. Several contentions are raised by the learned Counsel Shri J.L. Bhoot who assails the order of dismissal and by the learned Counsel Shri R.B. Puranik in rebuttal. Elaborate submissions are made by the learned Counsel on the issue of disproportionality or otherwise of the punishment inflicted to the proved misconduct. Several decisions are pressed into service by both Shri J.L. Bhoot and Shri R.B. ::: Uploaded on - 02/05/2019 ::: Downloaded on - 03/05/2019 02:07:08 ::: 4 wp5618.15 Puranik to buttress the respective submissions. However, since the judgment in appeal is liable to be set aside on the short ground that the dismissal order is contrary to the mandatory provisions of the Standing Orders, it is not necessary to consider and discuss the articulation of law in the decisions cited.
8. It is not in dispute that the Standing Orders provide that the Manager shall take into account the gravity of misconduct, the previous record, if any of the employee and any other extenuating or aggravating circumstances that may exist. Shri J.L. Bhoot would submit, and in all fairness Shri R.B. Puranik does not disagree, that in view of the decision of this Court in Mill Manager, Savatram Ramprasad Mills v. Industrial Court, Nagpur reported in 1987(1) BCR 517, the said provision is mandatory.
9. It is irrefutable, and indeed Shri R.B. Puranik has not argued to the contrary, that there is no material on record to suggest that the employer took into consideration the past record and the extenuating or aggravating circumstances, if any, before issuing the dismissal order.
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10. In view of the non-compliance with the mandatory provision of the Standing Orders, the dismissal order is unsustainable.
11. The petition is partly allowed.
12. The common judgment dated 07-1-2014 rendered by the Industrial Court in B.I.R. Appeal 2/2007 and B.I.R. Appeal 1/2008 is set aside.
13. The dismissal order dated 08-3-1988 is declared illegal and the finding to the said effect recorded by the First Labour Court is upheld albeit for reasons other than those recorded by the First Labour Court. The First Labour Court has directed reinstatement with 25% back-wages. However, the back-wages are directed to be paid only from September 1997 and not from the order of dismissal dated 08-3-1988. The reason recorded is that the defendant did not make any attempt to secure employment prior to joining service in Bhatapara Rolling Mill. The First Labour Court notes that the employee worked in Bhatapara Rolling Mill from April 1997 to 29-9-1997.
14. The denial of 25% of back-wages from the date of dismissal till September 1997 is unjustified. The First Labour Court ::: Uploaded on - 02/05/2019 ::: Downloaded on - 03/05/2019 02:07:08 ::: 6 wp5618.15 clearly erred in holding that the employee did not make any attempt to search for employment. In this view of the matter, the employee shall be entitled to 25% back-wages from the date of dismissal till the date of superannuation, since it is common ground that during the pendency of the litigation, the employee has reached the age of superannuation.
15. The petition is disposed of in the afore stated terms.
JUDGE At this stage, Shri J.L. Bhoot, learned Counsel would submit that the employer be directed to make the payment of the financial benefits within a stipulated period.
The financial benefits in terms of this judgment shall be paid within two months, failing which the said shall attract interest at the rate of 12% per annum.
JUDGE adgokar ::: Uploaded on - 02/05/2019 ::: Downloaded on - 03/05/2019 02:07:08 :::