Bombay High Court
Baban Ananda Dhotre vs Pefco Foundary on 16 February, 2000
Equivalent citations: 2000(3)BOMCR471, (2000)IILLJ1486BOM, 2001(3)MHLJ547
Author: A.P. Shah
Bench: A.P. Shah, J.A. Patil
ORDER A.P. Shah, J.
1. Heard Advocates.
2. Delay in filing the appeal is condoned. Office to number the appeal.
3. Appeal is admitted. Respondents waive service. By consent, appeal is taken up for final hearing.
4. The appellant workman was employed as a driver by the respondent company from 3rd February, 1979 and was confirmed on 4th July 1979. He was assigned the work of driving the car of the company's Executive Director Shri J.P. Gupta. He was also directed to render his services towards the family members of Shri Gupta. By dismissal order dated 30th September 1984, the respondent company dismissed the workman from the employment after holding a domestic enquiry for alleged acts of misconduct levelled vide its chargesheets dated 12th September 1983 and 14th January, 1984. The workman raised an industrial dispute which came to be referred to the Labour Court under section 10(1) read with section 12 of the Industrial Disputes Act, 1947. Before the Labour Court, the workman filed his statement of claim, challenging the propriety and legality of the dismissal order and prayed for reinstatement with full back wages and continuity of service. The workman alleged that the domestic enquiry was in violation of the principles of natural justice and that he was dismissed with ulterior motives, mala fide and thus the company had indulged in unfair labour practice. He also contended that the Enquiry Officer had not complied with principles of natural justice and his findings were baseless and perverse. According to him he had not committed any acts of misconduct as alleged against him. It was also contended by him that the extreme punishment of dismissal was disproportionate and it amounted to victimisation.
5. The respondent company "resisted the claim by its written statement and denied the various allegations and averments made by the workman. The company denied that it had not complied with the principles of natural justice and had dismissed the workman mala fide or had victimised him. The company also contended that the enquiry was fair and proper and the workman was given full opportunity of defending himself in the enquiry. Both the parties led evidence oral and documentary in the Labour Court, both on the point of fairness and legality of the enquiry and also on the point of punishment.
6. The Labour Court by its Award Part I, dated 5th December, 1990, held that the enquiry was just and fair and the findings recorded by the Enquiry Officer were also proper, except for the incidents dated 20th July, 1983 and 21st July 1983. By Award Part II, dated 28th August, 1991 the Labour Court held that the punishment of dismissal was unduly harsh and disproportionate and directed reinstatement of the workman with 50 percent of the back wages from the date of the termination i.e. 3rd October, 1984 upto the end of November, 1987 and from 1st July, 1989 until reinstatement. The company challenged the award of the Labour Court by filing Writ Petition No. 4406/ 1991. The learned Single Judge vide his order dated 29th October, 1999 was pleased to allow the writ petition and set aside the award dated 28th August, 1991 passed by the Labour Court and held that the punishment of dismissal was legal and proper and did not warrant any interference by the Labour Court. The correctness and legality of the order of the learned Single Judge is impugned in this Letters Patent Appeal.
7. We have heard Ms. Sarnaik, learned Counsel appearing for the appellant and Mrs. Doshi, learned Counsel appearing for the respondent. We have also perused the judgment of the learned Single Judge as well as the Labour Court. It seems that the learned Single Judge took a view that the relationship between the driver and the owner of the vehicle or his family has to be smooth and of mutual trust and confidence. Even small friction between them would spoil the relationship. The learned Judge observed:-
"It is an admitted position that the workman was assigned to drive the car of Shri Gupta, the Executive Director of the company. It is also an admitted position that the relations between Shri Gupta and the workman were strained and were not at all cordial, as they should be between the owner and the driver of the vehicle. According to me the relations between the driver and the owner whose car he is driving are distinct and there cannot be even little friction leading to mutual ill-will. The relations must be smooth and straight between both of them. The driver must not have a grudge against the owner or his family members, whom he is rendering his services nor the owner of the vehicle or his family members should have any kind of grudge or ill-will against the driver. It is like husband and wife. Both must have mutual trust and confidence in each other. According to me, a workman in the shop floor of the factory and a driver driving his owner's car, both are to be treated differently and they cannot be equated with each other, and therefore, the test to be applied in an industrial dispute, where driver is concerned, would be little different."
8. With great respect we are unable to agree with the above observation made by the Single Judge. It is undoubtedly true that a driver of the vehicle is required to be punctual and diligent and he has also to be polite to the owner of the vehicle or the persons to whom he is rendering his service. If any misconduct is committed by the driver the same is required to be dealt with in accordance with the standing orders. If the misconduct is proved, the punishment for such a misconduct will depend on the nature and seriousness of the misconduct. We are, however, unable to accept the view expressed by the learned Judge that the case of the workman in the shop-floor of the factory and a driver driving his owner's car, are required to be treated differently and the test to be applied in the case of the driver, in an industrial dispute, would be different. The observations made by the learned Judge indicated that even a loss of confidence on account of friction between the driver or owner or owner's family may be justifiable reason for terminating the service of a driver. In our considered view each case will have to be dealt with on its own fact and it will not be desirable to classify the case of a driver as a separate class and to apply them different yardsticks. In our view such a classification would be artificial and particularly keeping in view the fact that in a company or a large concerns, even if the relations of a driver with the superior officer is strained his services can be assigned to other officer in order to avoid any further accromoney between the parties. We wish to make it clear that when we say that the driver's service can be assigned to the other officer, it does not mean that any serious misconduct on the part of the driver can be condoned. As stated earlier each case will have to be dealt with its own merit and while exercising the jurisdiction under section 11-A of the Act, the Labour Court will have to decide the case in accordance with the established principles.
9. Turning then to the merits of the case it is seen that the Labour Court has held that the charges against the workman were proved except the incidents dated 20th July, 1983 and 21st July, 1983. Incidently, there are three charges levelled against the workman. The first charge is that he came late for duty on 24-8-1983 when Shri Gupta was required to go to the Airport. Secondly, it was alleged that on 6th January, 1984 the workman left the car in the garage for repairs without removing the pillows, flashgun of a camera and tools etc. inspite of specific directions. Lastly, it is alleged that on 7th January, 1984 while driving the car the driver/workman did not listen to the directions given by the Executive Director Shri Gupta. It seems that a garbage vehicle passed the car which was spreading foul smell. Shri Gupta then asked the workman to stop the car for some time whereupon the driver replied that it is not necessary to stop and argued with the employer.
10. By the Award Part II, the Labour Court has dealt with the question of proportionate punishment. The Labour Court found that even if the owner or 'company's Executive Director was inconvenienced as the workman did not come on duty in time, still it did not warrant harsh penalty of termination of his services. Either wages of a day could have been deducted by way of fine or the workman could have been suspended for a couple of days, which could have been just and proper punishment. The Labour Court has also observed that the misconduct of failure to remove the tools was also not so serious in order to warrant punishment of termination of service. Similarly, in respect of the incident relating to the incident of 7th January, 1984, the Labour Court found that the lapse has" been explained on the part of the workman that he could not stop the car due to traffic hazards and within a short time a garbage car turned to the different direction. Under the circumstances, the Labour Court came to the conclusion that the charges were not of so serious in nature which would have invited the punishment of termination. The learned Single Judge should not have interferred with these findings of the fact recorded by the Labour Court. In our opinion, the Labour Court was right in coming to the conclusion that the punishment of dismissal was too harsh and totally disproportionate to the charges levelled against the said workman. However, we find that the Labour Court was not right in granting the relief of reinstatement to the workman, having regard to the past record of the workman and also having regard to the fact that after the termination the workman had secured another employment. The services of the workman were terminated as far as back in 1984 and it wilt not be proper to grant reinstatement of his service after a lapse of nearly 16 years. Moreover it has come in evidence that during this time, the workman worked with different employers. Considering the overall facts, we feel that the ends of justice would be served if compensation is awarded in lieu of the reinstatement of the workman in service. The workman joined the service of the company some time in 1979 and his services were terminated in 1984. We therefore, direct the company to pay a lumpsum amount of Rs. 65,000/- to the workman towards compensation in lieu of reinstatement and back wages.
11. In view of the above position, we set aside the orders passed by the Labour Court as well as the learned Single Judge. We direct the employer/respondent to pay to the appellant workman some of Rs. 65,000/- within 8 weeks from today. Certified copy expedited.
12. Petition allowed.