Bombay High Court
Mohan Sugan Naik And Ors. vs National Textile Corporation (South ... on 3 August, 1994
Equivalent citations: (1995)ILLJ110BOM
JUDGMENT M. L. Pendse, J.
1. The appellants were employed by management of New City of Bombay Manufacturing company which had been subsequently taken over by National Textile Corporation. On December 1, 1980, the appellants were served with a charge-sheet for misconduct under Standing Order 21(k) viz. riotous or disorderly behaviour during working hours on mills premises or any act of subversive discipline. The gravaman of the charge against the appellants was that an enquiry was held by the Factory Manager Shri P. H. Abhitkar against appellants Nos. 2 and 3 in respect of some incident and during that enquiry on November 29, 1980, charge-sheet was served on appellants Nos. 2 and 3. During the enquiry, the three appellants approached the Enquiry Officer and enquired as to how the Enquiry Officer is entitled to conduct enquiry in respect of some incident which had taken place outside the premises of the mills. The three appellants then threatened the Enquiry Officer in case the enquiry is proceeded with. The three appellants also threatened the Enquiry Officer that if the appellants are not taken back on duty on the next day, then the Enquiry Officer and the Labour Officer will be stabbed and the Enquiry Officer will not be allowed to leave the premises of the mills.
2. The appellants denied the charge but after conducting the enquiry, all the three appellants were found guilty of the charges levelled and were dismissed by order dated May 28, 1981. The appellants then filed Complaint (ULP) No. 63 of 1981 under Unfair Labour Practices Act. The appellants claim that the respondents-Mills are guilty or unfair labour practice contemplated under item 1 of Schedule 4 of the Act. the Third Labour Court by order dated July 14, 1987 came to the conclusion that the enquiry held against the appellants was fair and legal and that the charges were established, but the order of dismissal was shockingly disproportionate to the guilt of the appellants. The Labour Court felt that though the appellants had given threats in order to pressurise the Equity Officer, the appellants were never serious to carry out the threats. The Labour Court felt that depriving the appellants of the backwages would be sufficient punishment in the circumstances of the case. Accordingly, by order dated July 14, 1987, the complaint was allowed and respondent no. 1 was directed to reinstate appellants nos. 2 and 3 within two months but without any backwages. As regards appellant No. 1, it was stated before the Labour Court that appellant No. 1 was reinstated during the pendency of the complaint.
3. The appellants preferred Revision Application No. 52 of 1987 before the Industrial Court against the order declining to grant backwages, while National Textile Corporation preferred Revision Application No. 41 of 1987 against the order directing reinstatement. Both the Revision Applications were heard together and the Revision Application filed by the National Textile Corporation was dismissed, while that of the appellants was partly allowed. The Industrial Court came to the conclusion that appellant No. 2 is entitled to full backwages, while appellant no. 3 only to 50% of the backwages. The Industrial Court observed that the threats alleged to have been given by the appellants were not prove qua the appellants Nos. 1 and 2.
4. The National Textile Corporation challenged the order of the Labour Court as well as the Industrial court by filling Writ Petition No. 3275 of 1989 under Article 227 of the Constitution of India before the learned Single Judge sitting on the Original side of this Court. The learned Judge by impugned judgment dated July 19, 1993 held that the finding of the Labour Court that the appellants were guilty of giving threats to the Enquiry Officer was justified and once that finding is upheld, then the punishment of dismissal cannot be said to be disproportionate. The learned Judge felt that giving threats to the Enquiry Officer amounts to very serious misconduct and it is not permissible to direct reinstatement. The order of the learned single Judge is under challenge. The learned Judge set aside the order for reinstatement of appellants Nos. 2 and 3.
5. Dr. Kulkarni, learned counsel appearing on behalf of the appellants, submitted that the learned Single Judge was in error in disturbing the order of reinstatement given by the Labour Court and confirmed by the Industrial Court. We find considerable merit in the submission of the learned counsel. It is undoubtedly true that the material on record establishes that the appellants had given threats to the Enquiry Officer. It is equally true that giving to the Enquiry Officer that the appellants will stab the Enquiry Officer, in case enquiry is proceeded with is quite a serious threat. The submission of Dr. Kulkarni that the appellants were acquitted by Additional Chief Metropolitan Magistrate in Criminal case has no merit. The learned counsel was desirous of relying upon certain observations in the judgment of the Additional chief Metropolitan Magistrate but it is not permissible to place reliance upon the contents of the judgment of the Criminal Court and only conclusion is admissible. Form the perusal of the order passed by the Labour Court, we have no hesitation in concluding that the charges levelled were established. Dr. Kulkarni then submitted that even if the charges are held established, it was not fair to deprive reinstatement to appellants Nos. 2 and 3. The learned counsel urged that the Labour Court was justified in holding that deprivation of backwages for a period of about seven years was more than sufficient punishment. It was urged that the learned Single Judge was in error in setting aside the order of the reinstatement in exercise of writ jurisdiction. Even though the appellants had given threats, it was obviously because of the excitement that the appellants were chargesheeted in respect of some other enquiry. The appellants are not well educated people so as to understand the implications of giving threats. It is not unusual that the person while excited gives threats which are normally empty threats. It is undoubtedly true that it is not open for the employee to give threats to the Enquiry Officer but the misconduct does not warrant maximum punishment of dimissal from service and more so, when employees were in service for many years. In our judgment, ends of justice would meet if the order of the Labour Court reinstating appellants Nos. 2 and 3 in service but depriving them of their backwages is upheld.
6. Mrs. Doshi, learned counsel appearing on Behalf of the National Textile Corporation, submitted that the provisions of Section 11A of the Industrial Dispute Act are not available and, therefore, it is not permissible to examine the sufficiency of punishment. It is undoubtedly true that the provisions of Section 11A of the Industrial Disputes Act are not available to the Labour court while hearing the complaint but principle analogous to provisions of Section 11A are always available. The Labour Court, in our judgment, had given justice to the appellants and it was entirely unnecessary to disturb that order in exercise of writ jurisdiction. Mrs. Doshi also submitted that the appellants should not be granted backwages till this day. The learned counsel urged that the appellants were directed to be reinstated in July 1987 and more than 7 years had lapsed from that date and payment of backwages would be burden upon the Corporation. The submission cannot be entertained. Merely because, litigation has remained pending for seven years, that cannot deprive the appellants from claiming backwages from the date of grant of relief by the Labour Court.
7. Accordingly, appeal is allowed and judgment dated July 19, 1993 passed by learned Single Judge in Writ Petition No. 3275 of 1989 as well as judgment dated April 5, 1989 passed by member, Industrial Court, Bombay in Revision Applications Nos. 52 and 41 of 1987 are set aside and the order dated July 14, 1987 passed by the Presiding Officer, Third Labour Court, Bombay is restored. In the circumstances of the case, there will be no order as to costs.