Bombay High Court
Kashinath Laxman Gawali Datta Prasad vs The General Manager, Hindusthan ... on 5 July, 1991
Equivalent citations: (1994)IIILLJ1097BOM
JUDGMENT H.H. Kantharia, J.
1. The petitioner-Workman was in the employment of the first respondent-Corporation as an Electrician 'B' Grade from 1966. His last drawn wages were Rs. 375/- per month approximately. He was served with a notice dated 18.5.1976 for voluntary abandonment of service with effect from 5.5.1976 as he was absent from duty from 5.5.1976 unauthorisedly. He was thereafter served with another notice on 25.5.1976 for an action under Standing Order 18(ii). The petitioner submitted a detailed explanation by a letter dated 26.5.1976 and requested the Personnel Manager of the first respondent to sanction leave upto 7.6.1976 as his wife was to be operated for Tubectomy operation after delivery. He had already earlier submitted an application for leave on 17.4.1976 for the same purpose with a certificate of Dr. S. P. Patankar who had certified that the petitioner's wife was due for delivery in May, 1976 and thereafter for intended tu-bectomy operation. It was the case of the petitioner that there was no one to look after his wife after the impending delivery and operation and, therefore, he was compelled to stay at home. The petitioner's wife delivered on 7.6.1976 and the operation was performed on 9.6.1976. Thereafter he reported for work on 21.6.1976 but, according to him, he was not allowed to join duties. He, therefore, sent a letter dated 22.6.1976 requesting the Assistant Personnel Manager of the first respondent to allow him to resume duties and also sent a telegram. The petitioner was finally called upon to join duties on 12.7.1976.
2. Further case of the petitioner is that thereafter he was served with a charge sheet dated 15.7.1976 for an alleged act of misconduct under Standing Order 27(6) and 27(46) and was called upon to submit his explanation to the said charge-sheet. He submitted a detailed explanation on 19.7.1976. He received a reply from the first respondent on 21.7.1976 that his explanation was not found satisfactory and, therefore, a domestic enquiry was to be held against him. Accordingly, a domestic enquiry was held on 12.8.1976 and 13.8.1976 and the enquiry officer submitted his report on 19.8.1976 holding the petitioner guilty of the charges levelled against him that though he was informed on 27.4.1976 that his application for grant of vacation leave in advance for 12 days was not recommended and though he was advised not to proceed on leave, he had absented himself from duties with effect from 5.5.1976 and had not cared to report back for duties in spite of communications addressed to him. It was also alleged against him that his previous record was not good in the matter of taking unauthorised leave. Thereafter, he was served with a show cause notice on 27.8.1976 as to the punishment. He submitted an explanation by his letter dated 31.8.1976 contending that he was obliged to stay away from duty on account of his wife's operation. He was, however, served with an order dated 28th September, 1976 by the Factory Manager of the first respondent that he was dismissed from service with immediate effect.
3. Feeling aggrieved, the petitioner filed Complaint (ULP) No. 96 of 1976 in the Labour Court at Nasik alleging unfair labour practice covered by Item 1 of Schedule IV or the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the MRTU & PULP Act') against the first respondent. The first respondent resisted the said complaint contending in the written statement that despite the fact that the petitioner was not recommended for proceeding on vacation leave for 12 days from 5.5.1976, he absented himself from duty and his past record as to unauthorisedly absenting from duty was also bad and further that he was dismissed after a proper domestic enquiry held against him and in that view of the matter it cannot be said that any unfair labour practice was committed by the first respondent-Corporation against the petitioner.
4. At the hearing of the said unfair Labour practice complaint, both the parties adduced oral as well as documentary evidence before the second respondent (learned Labour Judge, Nasik). On consideration of the evidence adduced before him, the learned Labour Judge came to the conclusion that the petitioner failed to prove any unfair labour practice committed by the first respondent and accordingly by his judgment and order dated 1.12.1981 he dismissed the petitioner's complaint. The petitioner challenged the said order dated 1.12.1981 by filling Revision Application No. 3 of 1983 in the Industrial Court at Nasik. The third respondent (learned Member of the Industrial Court, Nasik) did not find merits in the said revision application and dismissed the same by his order dated 21.8.1984.
5. Therefore, the petitioner invoked the supervisory writ jurisdiction of this Court under Article 227 of the Constitution by filing the present writ petition.
6. Now, Mr. Kochar, learned counsel appearing on behalf of the petitioner, urged that assuming for the sake of argument mat the allegations made against the petitioner were true, he could not have been visited with the drastic punishment of an order of dismissal for the so-called misconduct of minor or technical character, regardless of the nature of the particular misconduct or the past record of service, which punishment amounted to shockingly disproportionate punishment which would be an unfair labour practice covered by Item 1 (g) of Schedule IV of the MRTU & PULP Act. Mr. Kochar also submitted that the past leave record (Exhibit-A to the petitioner) does not show that the same was so bad so as to warrant the maximum punishment of dismissal from service. In reply, Mr. Rele, learned Counsel appearing on behalf of the first respondent, submitted that despite the fact that the petitioner was informed that his leave was not recommended, he absented himself from duty in defiance of the orders of the superiors and that the past leave record of the petitioner was definitely bad. Mr. Rele's further submissions is that the petitioner was dismissed after holding a proper domestic enquiry against him and in that view of the matter it cannot be said that the first respondent committed unfair labour practice as alleged against them.
7. On giving my anxious thought to the submissions made at the Bar, I am unable to persuade myself to agree with the submission made by Mr. Rele. Admittedly, this is not a case in which the petitioner had abandoned services. He was foreseeing an event to take place in his family life that his wife was expecting in the month of May, 1976. The couple had also decided that after the delivery, the wife was to undergo an operation for Family Planning. As there was no one to look after her, the petitioner was obliged to stay back at home to look after his wife. Therefore, in anticipation of the two events to take place, the petitioner applied for vacation leave quite in advance. It was unfortunate that his leave was not favourably recommended and he was informed about the same. But the petitioner had to chose between the health and welfare of his wife and the absence from duty in the office. He, in his wisdom, opted for the health and welfare of his wife despite the fact that he was informed that his leave was not recommended and remained absent from duty. It is also important to note that after the delivery and the operation he immediately reported for duty but was not allowed to join duties. There was hardly anything in the domestic enquiry inasmuch as the petitioner never disputed that he did remain absent from duties despite the fact that his leave was not sanctioned. But, according to him, he had reasons to do so, as stated above. Therefore, there is no substance in the submission that the petitioner was dismissed after holding a proper domestic enquiry against him. It can also not be said that the past leave record of the petitioner was so bad that he should have been visited with the extreme penalty of dismissal from service. The details of his leave record, as per Annexure-A to the petition shows that from the month of January, 1973 to the end of July, 1976 he had taken leave such as sick leave, casual leave, vacation leave and leave without pay for 140 times. Out of these 140 occasions he was on unauthorised leave i.e. leave being not sanctioned on 13 occasions. His case is that he was often required to take sick leave on account of the fact that he was suffering from tuberculosis which he had contacted during the course of the discharge of his duties. In my opinion, if on 13 occasions during the period of 31/2 years, the petitioner took unauthorised leave or absented from duty mainly due to his illness, it cannot be said that his past leave record was so bad that he should have been sentenced to economic death by dismissing from the job. What appears to me from the facts and circumstances of this case that merely because the petitioner defied the orders of his superiors and absented from duty despite he being told that his leave was not sanctioned which must have hurt the ego of some superior officer of the petitioner who seems to have made it a prestigious issue and dismissed the petitioner from service after making a pretence of holding domestic enquiry against him and holding him guilty of the charges which the petitioner himself had admitted and had given, in my opinion, reasonable and satisfactory explanation that he was left with no alternative but to remain absent from duties to look after the health and welfare of his wife.
8. In this view of the matter, I am more than satisfied that the first respondent dismissed the petitioner for the so-called misconduct which was of a minor or technical character and without having any regard to the nature of the particular misconduct or the past record of service which amounted to a shockingly disproportionate punishment and thus committed unfair labour practice covered by Item 1(g) of Schedule IV of the MRTU & PULP Act. The learned Labour Judge and the learned Member of the Industrial Court committed grave error in not appreciating the evidence in its proper perspective and, therefore, can be said to have come to perverse findings and passing illegal orders. These grave errors which are very much apparent on the face of the record have got to be corrected in the interest of justice.
9. In the result, the writ petition succeeds and the same is allowed. It is hereby declared that the first respondent indulged in unfair labour practice covered by Item l(g) of Schedule IV of the MRTU & PULP Act. The first respondent-Corporation is, therefore, directed to desist and cease from further indulging in the unfair labour practice and reinstate the petitioner workman in his original position with full back wages and continuity of service with effect from September 28, 1976. The first respondent-Corporation is further directed to work out the arrears of back wages due to the petitioner on or before 15th August, 1991 and pay up the same to the petitioner failing which they shall be liable to pay interest on the said amount at the rate of 15 per cent per annum effective from 16th August 1991.
10. Mr. Rele makes an oral application for leave to appeal to Supreme Court. As no important question of law of importance is involved, the leave is refused. Mr. Rele then submits that the operation of this judgment and order be stayed for a reasonable period. I find no force in the submission of Mr. Rele to stay the operation of this judgment and order and hence this prayer made by Mr. Rele is rejected.