Bombay High Court
S.M. Renu vs Proprietor, Mahajan Silk Mills & Others on 24 July, 1992
Equivalent citations: [1992(65)FLR485], (1993)ILLJ319BOM
JUDGMENT
1. The petitioner-employee was in the permanent employment of the 1st respondent-ex-employer as a Jobber for a period of about two years. On May 11, 1978, he was served with a show-cause notice on the allegations that he had refused to carry out the instructions for attending the looms of the sister concern of M/S. Mahajan Silk Mills (Respondent No. 1.) He was suspended pending enquiry and thereafter on consideration of his written explanation a domestic enquiry was conducted as a result of which he was dismissed from service by an order dated June 19, 1978. The petitioner thereafter approached the 1st respondent under Section 42(4) of the Bombay Industrial Relations Act, 1946 requesting the 1st respondent to reinstate him with full back wages and continuity of service. Since the demand was not acceded to, he filed an application under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946 in the Labour Court at Thane for the relief of reinstatement with full back wages and continuity of service. On appreciation of the evidence adduced before him, the learned Labour Judge, by his judgment and order dated October 30, 1984 held that the punishment of dismissal inflicted on the petitioner was extreme and disproportionate to the alleged misconduct and it smacked of ulterior motive and as such the dismissal order could not be sustained. However, the learned Labour Judge did not grant to the petitioner the relief of reinstatement with full back wages and continuity of service but directed the 1st respondent to pay full wages as compensation to the petitioner.
2. Being aggrieved, the petitioner filed Appeal (IC) No. 93 of 1984 in the Industrial Court at Bombay for reinstatement with full back wages and continuity of service and the 1st respondent filed Appeal (IC) No. 5 of 1985 in the Industrial Court at Bombay praying that the relief of compensation granted to the petitioner be quashed and set aside. The Industrial Court dismissed the appeal of the petitioner and allowed that of the 1st respondent by its Judgment dated January 24, 1986. The petitioner, therefore invoked the supervisory writ jurisdiction of this Court under Article 227 of the Constitution by filing the present writ petition.
3. Now, according to the 1st respondent, on May 11, 1978 the petitioner was asked by the Weaving Master to attend to looms Nos. 5 and 10 of a sister concern by name Tarun Textiles but the petitioner refused to do so and arrogantly stated that he would not repair the looms of Tarun Textiles or of any other unit although he was doing this work continuously during his employment with the 1st respondent, Therefore, he was charge-sheeted for wilful insubordination and disobedience of lawful and reasonable orders of his superior or committing an act subversive of discipline or good behaviour on the premises of the establishment and thereafter a proper and valid domestic enquiry was held against him in which he was found guilty of the charges levelled and pursuant to the report to the Enquiry Officer, he was dismissed from service by an order dated June 19, 1978. The contention of the petitioner was that his employer was the 1 st respondent, i.e. Mahajan Silk Mills, and M/s. Tarun Textiles was entirely a separate legal entity for which he was not bound to do any work but at the request of the 1st respondent he was also attending to the work of two sister concerns of the 1st respondent by name Tarun Textiles and United Textiles as no Jobber was employed there but he was doing such work on an assurance by the 1st respondent that for this work he would be paid, but was not paid anything and on the contrary was treated very shabbily and was not even granted leave wages and was not provided with any assistance in the nature of a helper or a carpenter, etc. He was, therefore, justified in refusing to attend to the work of the sister concerns of the 1st respondent and in doing so he did not commit any misconduct whatsoever, much less the charges levelled against him.
4. Now, the facts hereinabove are not in dispute except that according to the 1st respondent, no assurance was ever given to the petitioner for any payment whatsoever for doing the work of their sister concerns and that, in fact, the petitioner was regularly attending to the work of Tarun Textiles and United Textiles during the entire period of his service and was not justified in disobeying the lawful and reasonable orders of his superior on the day in question whereas according to the petitioner, he was not duty bound to carry out such orders and attend to the work of Tarun Textiles and United Textiles of which he was not an employee and, therefore, in refusing to attend to such work he committed no wrong. What appears to me from the record produced before me and the submissions made at the Bar is that by way of good gesture the petitioner was attending to the work of the sister concerns of the 1st respondent and probably when he found it too hard he asked for some monetary compensation because he needed money, but compensation was refused by the 1st respondent and, therefore, he refused to do the work of the sister concerns of the 1st respondent on the day in question. Merely because the petitioner refused to do the work of the sister concern which he refused to do earlier on the day in question, in my opinion, it would not amount to misconduct on his part of refusing to obey lawful and reasonable orders. It is not in dispute that the two sister concerns are entirely distinct legal entitles and the employer of the petitioner was the 1st respondent and, therefore, the petitioner was not duty bound to do the work of Tarun Textiles and United Textiles just because he earlier obliged his employer by doing such work. However, the learned Labour Judge held, on facts, that the petitioner was guilty of mis-conduct with which finding of fact I am not inclined to interfere. The learned Labour Judge was, however, of the view that the punishment of dismissal meted out to the petitioner was disproportionate to the charges levelled against the petitioner and, therefore, he was not inclined to sustain the order of dismissal and granted compensation to the petitioner denying him the usual relief of reinstatement. Assuming for the sake of argument that I am not quite correct in holding that the petitioner did not commit an act of misconduct, as alleged against him, and the learned Labour Judge was right in holding that the petitioner was guilty of such misconduct, in my Judgment, the learned Labour Judge was quite right in coming to the conclusion that the punishment meted out to the petitioner was too harsh and disproportionate to the charges levelled and proved against the petitioner. However, in my opinion, the learned Labour Judge was not quite correct in granting relief of payment of compensation only to the petitioner when in a case like this the usual relief should have been reinstatement with full back wages and continuity of service, of course, with some modification in awarding the punishment as and by way of inflicting some minor punishment to the petitioner if the learned Labour Judge was of the view that the misconduct alleged against the petitioner was committed by him. It is important to note here that the learned Labour Judge himself was of the view that the petitioner was punished not so much for refusal to do the work that he was called upon to do but more for airing his grievance of demanding money for the extra work which he was doing for the sister concerns. If that was so, then the learned Labour Judge was further right in observing that the dismissal order smacked of ulterior motive, if not mala fide.
5. The learned Member of the Industrial Court who disposed of the two appeals filed by the petitioner and the 1st respondent, however, was not at all correct in setting aside the Judgment and order passed by the Labour Court and dismissing the appeal of the petitioner and allowing that of the 1st respondent. The learned Member of the Industrial Court was of the view that it may be that the petitioner was claiming certain additional remuneration and assistance for extra work that he was doing, but that was no reason for him to have refused to carry out the order of his superior and should not have behaved in the manner in which he did. According to the learned Member of the Industrial Court, the orders which the petitioner disobeyed were lawful and reasonable and there was no cause or reason for the petitioner to have refused to carry out the same. In view of what I have stated above, in my opinion, the learned Member of the Industrial Court was not justified incoming to such conclusions. The learned Member of the Industrial Court was also wrong incoming to the conclusion that he did not find any ulterior motive on the part of the 1st respondent in punishing the petitioner with an extreme penalty of economic death sentence as and by way of dismissing him from job. On the other hand, the learned Labour Judge was more reasonable and considerate in holding that the 1st respondent chose to dismiss the petitioner from whom he was extracting work for 3 units and that instead of doing that, it was not impossible for the 1st respondent to consider the grievance of the petitioner to find out some solution by increasing his wages, etc. and the 1st respondent did not follow such approach and on the contrary charge-sheeted the petitioner, held an enquiry against him and ultimately dismissed him from job which was not a right thing to do in the facts and circumstances of the case. I am in agreement with the observations made by the learned Labour Judge than those made by the learned Member of the Industrial Court.
6. Since the learned Labour Judge had held that the misconduct alleged against the petitioner was proved, I would have thought of inflicting some minor punishment on the petitioner but I strongly feel that keeping the petitioner out of job for 14 years was enough punishment that he has undergone because to remain without job for so many years itself is a torture and a good punishment and that is why I am not now inclined to inflict any other punishment on him, minor or otherwise.
7. In the premises aforesaid, the impugned Judgment and order passed by the learned Member of the Industrial Court by which he dismissed the appeal of the petitioner and allowed that of the 1st respondent are quashed and set aside. In the result, the petitioner is entitled to the relief of reinstatement with full back wages and continuity of service. The 1st respondent is directed to reinstate the petitioner in his original position with continuity of service forthwith and pay to him full back wages from the day of his dismissal from service from June 19, 1978 till the day of reinstatement by the end of August 1992 failing which he shall be liable to pay interest at the rate of 18% per annum on the arrears of back wages due and payable to the petitioner effective from September 1, 1992.
8. The writ petition thus succeeds and the same is allowed. Rule is made absolute in the terms aforesaid but with no order as to costs.
9. Office is directed to supply certified copies of this Judgment to both sides on priority basis out of turn.