Bombay High Court
Balasaheb Ambadas Dhockchawale vs Indian Seamless Metal Tubes Ltd on 17 April, 2014
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
1
6871.2013 WP (J)
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 6871 OF 2013
Balasaheb Ambadas Dhockchawale,
Age 53 years, Occu. Labour,
R/o. Swami Savali Bunglow,
Pipeline Road, Ahmednagar ... Petitioner
Versus
Indian Seamless Metal Tubes Ltd.,
C-1, M.I.D.C. Ahmednagar
(Through its General Manager) ... Respondent
ig .....
Mr. P.V. Barde, Advocate for petitioner
Mr. V.N. Upadhye, Advocate for respondent
.....
CORAM : RAVINDRA V. GHUGE, J.
DATED : 17th APRIL, 2014
ORAL JUDGMENT :
1. Heard learned Advocates for the respective sides at length.
Rule. Rule made returnable forthwith, and the matter is taken up for final hearing with the consent of the parties.
2. The respondent is a Company registered under the Companies Act, 1956, and is a factory under the Factories Act, 1948. The Industrial Employment (Standing Orders) Act, 1946 is applicable to the respondent-company.
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3. The petitioner had joined the services of the respondent in the year 1987. It is contended that his past service record till the year 2000, was totally unblemished and blot less. He was confirmed in employment on 12-03-1992.
4. He had met with an accident arising out of and in the course of employment in the first shift on 23-09-1987, while working on a nozzle machine. The respondent-Company was then known by name Balaji Tubes. His left hand got trapped in a machine and he suffered fractures at five to six places. He was admitted at Akshay Hospital by the respondent, operated upon and kept as an indoor patient for about a month. He had taken treatment for about 8 to 9 months as an outdoor patient. After recovering from his injuries, he was given employment in the Store's Department. He had also preferred a claim for compensation before the Labour Court bearing W/C No. 49/1988.
5. The petitioner had filed a complaint before the Assistant Commissioner of Labour in 1992, which was settled on 09-03-1992 and an individual settlement dated 11-03-1992 was signed. The respondent initially agreed to pay Rs. 40,000/- as compensation and to provide permanent work subject to the petitioner ::: Downloaded on - 23/04/2014 23:33:22 ::: 3 6871.2013 WP (J) withdrawing the application W/C No. 49/1988. It was in this way that the said dispute was settled. However, the petitioner was not given payment for the period from 1987 to 1992. The petitioner has further narrated several acts of unfair practices alleged to have been committed by the respondent, in his complaint preferred before the Labour Court.
6. The respondent issued a charge-sheet dated 09-12-2001 to the petitioner alleging therein several acts amounting to mis-
conducts under the Model Standing Orders. Copy of the enquiry report is tendered across the bar, which contains the text of the charge-sheet issued to the petitioner. Same is marked as 'X' for identification and is taken on record.
7. The contention of the petitioner is that pursuant to the said charge-sheet a domestic enquiry was conducted and ultimately an order of dismissal by way of punishment was issued on 28-04-2002.
8. The petitioner preferred Complaint (ULP) No. 53/2002 before the Labour Court at Ahmednagar. Issues as regards the fairness of the enquiry as well as the findings of the Enquiry Officer were raised. The respondent had opposed the complaint by filing its say ::: Downloaded on - 23/04/2014 23:33:22 ::: 4 6871.2013 WP (J) and written statement. Contention of the petitioner was that he has been victimised on account of the litigation that was initiated against the respondent. His past record was clean until the year 2000, when the respondent started harassing the petitioner by levelling false charges against him. It was contended that the enquiry deserves to be set aside and the order of dismissal be quashed.
9. By order dated 06-02-2008, the Labour Court decided the preliminary issues and concluded that the domestic enquiry was conducted in a fair and proper manner. Revision Petition bearing (ULP) Nos. 04/2010 and 06/2011 were preferred by the petitioner and the respondent respectively. By a common judgment dated 29-02-2012, the Revision Petition filed by the respondent-employer was allowed. The Revision filed by the petitioner was rendered redundant since the order of the Labour Court was quashed and set aside and the matter was remanded back for deciding the issue of perversity in the findings of the Enquiry Officer.
10. The Labour Court after considering the preliminary issues a fresh, came to a conclusion vide its order dated 10-07-2012 that the findings of the Enquiry Officer were fair and proper and could not be termed as perverse. Ultimately, by the judgment dated ::: Downloaded on - 23/04/2014 23:33:22 ::: 5 6871.2013 WP (J) 28-08-2012, the complaint filed by the petitioner was partly allowed.
The punishment awarded to him was held to be shockingly disproportionate. He was directed to be reinstated in employment with continuity but without back wages.
11. The respondent herein as well as the petitioner preferred Revision ULP Nos. 93/2012 and 99/2012 respectively before the Industrial Court at Ahmednagar. The petitioner by his Revision Petition prayed for full back wages and the respondent by their Revision Petition prayed for quashing and setting aside of the judgment of the Labour Court and the dismissal of the complaint.
12. By its judgment and order dated 25-03-2013, the Revision Petition filed by the respondent-employer was allowed by the Industrial Court and the Revision Petition of the petitioner was dismissed. The judgment and order of the Labour Court dated 28-08-2012 was quashed and set aside. The complaint filed by the petitioner was dismissed. Being aggrieved by the said judgment, the petitioner has preferred this petition.
13. Contention of the petitioner is that the charges mentioned in the charge-sheet have been exaggerated. Five false charges have been levelled upon the petitioner and one charge has been ::: Downloaded on - 23/04/2014 23:33:22 ::: 6 6871.2013 WP (J) disproved. The Labour Court had correctly awarded reinstatement and continuity of service, but had erred in not granting full back wages. It is further contended that the Industrial Court has got carried away by the text of the charges and the clauses of the Model Standing Orders invoked in the charge-sheet. Because the petitioner had become an eye-sore in view of having initiated litigation against the respondent-Management, that the respondent had become vindictive. The charges levelled are on account of vindictive attitude of the respondent.
14. It is further submitted that the revisional jurisdiction of the Industrial Court under Section 44 of the MRTU & PULP Act, 1971, is limited and cannot be expanded as if the Industrial Court was exercising Appeal jurisdiction.
15. It is, therefore, submitted that even if on the one hand the enquiry is held to be fair and proper and the findings are not held to be perverse, on the other hand the punishment awarded to the petitioner is shockingly disproportionate. If the judicial conscience of the Court is shocked by the proportionality of the punishment, the Court has every jurisdiction to mould the punishment into such a form that justice would be done to both the parties.
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16. It is, therefore, the submission of the petitioner that an appropriate punishment could have been awarded by the Industrial Court by moulding the dismissal order. The Industrial Court has taken an extreme view which has resulted in causing civil death to the petitioner.
17. It is further submitted that the petitioner is out of employment from 28-04-2002 and is presently about fifty three (53) years old.
He has about five (5) more years left in employment, as the retirement age in the respondent factory is fifty eight (58) years. It is also contended that the Industrial Court ought not to have upheld the order of dismissal could have converted the same into discharge which would have fetched the petitioner retiral benefits.
It is, therefore, prayed that the petition be allowed and the impugned judgment be quashed and set aside.
18. Shri V.N. Upadhye, learned Advocate for the respondent has submitted that the past service record of the petitioner is highly blemished. He has drawn my attention to the copy of his written statement filed in the Labour Court. In paragraph 8 of the written statement, seven (7) instances have been narrated to indicate that the past service record of the petitioner is blemished.
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19. It is further submitted that as a principle of law when the domestic enquiry was held to be fair and proper and when the findings of the Enquiry Officer are not declared to be perverse, all allegations of victimisation, be it legal or factual, stand disproved.
Since the charges are held to be proved and the conclusions of the Enquiry Officer are not interfered with, allegations of victimisation have to fail.
20. In his submissions, therefore, what remains within the adjudicatory powers and jurisdiction of the Labour Court is the proportionality of the punishment. If it shocks the judicial conscience of the Court, the same could be interfered with. He, however, submits that the jurisdiction to do so is extremely limited and narrow. It is to be left to the employer and its subjective assessment as to whether the charges proved against a workman are of a minor nature or of a major character. Past blemished service record would aggravate the seriousness and the gravity of the mis-conducts proved against the workman under Standing Order 25(6).
21. Shri Upadhye, has further submitted that the charges levelled upon the petitioner and those which are proved are grave and serious in nature. The Labour Court had erred in granting ::: Downloaded on - 23/04/2014 23:33:22 ::: 9 6871.2013 WP (J) reinstatement with continuity to the petitioner oblivious of the seriousness and the gravity of the proved mis-conducts. This was neither permissible nor could have possibly been done. The Labour Court over stepped its jurisdiction and had shown misplaced sympathy towards the petitioner.
22. So far as the contention of the petitioner that the dismissal be converted into discharge in order to avail of retiral benefits, Shri Upadye has submitted that from the date of appointment till the date of his dismissal, the petitioner would be entitled for Gratuity.
23. Having heard the learned Advocates extensively, I have gone through the entire petition paper book with their assistance.
24. The charges levelled upon the petitioner and which are reproduced in the Enquiry Officer's report have been considered.
The abusive language used by the petitioner appears to be of a serious nature. Not only was the authority of a Senior Officer been questioned, foul words have also been used against him and his mother. The petitioner has been held guilty of committing mis-
conducts, under Standing Order 24(a) (k) (l) and (x) of the Model Standing Orders. He has been exonerated of the charge under Standing Order 24(h). He has been held guilty of insubordination, ::: Downloaded on - 23/04/2014 23:33:22 ::: 10 6871.2013 WP (J) disobedience, disorderly and indecent behaviour, acts subversive of discipline or good behaviour on the premises of the Establishment and refusal to accept the charge-sheet or a lawful communication from the employer. He has been held guilty of not working in an entire shift, using abusive and foul language against his superiors, indulging in arguments with superior and challenging their authority.
25. So far as the past record of the petitioner is concerned, he was placed under suspension for four (4) days by an order dated 15-09-2000 and he was suspended pending enquiry with regard to mis-behaviour with a senior supervisor by order dated 25-11-2001.
26. Since the enquiry were held to be fair and proper and the findings are not declared to be perverse, the proportionality of the punishment was, therefore, required to be gone into. This has been done by the Industrial Court. Based on its conclusions, the Industrial Court has held that the mis-conducts proved against the petitioner are grave and serious character.
27. I have gone through the reasons adduced by the Industrial Court and have also considered the charges proved against the petitioner. The learned Division Bench of this Court in the case of ::: Downloaded on - 23/04/2014 23:33:22 ::: 11 6871.2013 WP (J) Sahil Khan Vs. M/s. Hashmat and Company, reported at 2007 LLR, 217, upheld the dismissal order issued by the employer. The workman had abused the employer by calling him a thief since the employer had carried out deduction from his monthly wages on ground of absentee. This Court, therefore, concluded that the said behaviour on the part of the workman abusing the employer has to be construed to be a grave and serious charge.
28. In the case of Premier Automobiles Vs. H.S.T. Hedge and others, reported at 2007 LLR 118 and Jarnail Singh Vs. P.O. Labour Court, Patila, reported at 2007 LLR 245, it has been concluded that shouting slogans inside the cabin, abusing in filthy language and creating riotous and disorderly behaviour amounts to grave and serious acts of mis-conducts.
29. In the case of Kerala Solvent Extractions Ltd., Vs. A. Unnikrishnan, reported at 1994 (II) LLJ 888, the Apex Court had an occasion to deal with acts of abusive nature. It was concluded that the said acts are serious in nature.
30. In the light of the judicial pronouncements referred above, and after having considered the abusive language used by the petitioner and as proved in the enquiry, I am of the view that the ::: Downloaded on - 23/04/2014 23:33:22 ::: 12 6871.2013 WP (J) said words do not fall within the definition of minor mis-conducts or mis-conducts of a technical character.
31. The past service record of the petitioner is blemished to some extent. Quantum of punishment which is based on the subjective assessment of an individual workman, in such situations does not deserve any interference. In the case of Bharat Forge Limited Vs. Uttam Nakhate, reported at (2005) 2 SCC 489, the Apex Court has held that interference in cases where the acts committed by a workman being of abusive nature should be deprecated.
32. In this back drop, the punishment of dismissal from service needs to be held to be commensurate to the gravity and the seriousness of the mis-conducts proved against the petitioner. The past service record, therefore, does not operate as a mitigating factor, rather it has the effect of an aggravating factor.
33. In the light of above, I, therefore, do not find any merit in this petition. However, the fact that the Gratuity of the petitioner being payable from the date of appointment till his dismissal, will have to be paid by the respondent, if still not paid. In the event, the said Gratuity is not paid, the respondent shall pay the same along with ::: Downloaded on - 23/04/2014 23:33:22 ::: 13 6871.2013 WP (J) interest from the date of dismissal till the date of actual payment at the rate of 8% per annum.
34. With these directions, the petition is dismissed. Rule is discharged. No order as to costs.
( RAVINDRA V. GHUGE, J. ) SDM* April-2014 ::: Downloaded on - 23/04/2014 23:33:22 :::