Bombay High Court
Mazdoor Congress And Others vs S.A. Patil, Member, Industrial Court, ... on 22 February, 1990
Equivalent citations: 1990(2)BOMCR379, (1990)92BOMLR180, [1990(60)FLR633], (1991)IILLJ548BOM
JUDGMENT
1. The petitioners in both these writ petitions under Article 227 of the Constitution are the same namely, Waman Surve and Ram Sail and Mazdoor Congress, a trade union, representing both of them. We shall hereinafter refer to Waman Surve and Ram Sail as "the workmen". The effective respondent in both writ petitions is M/s. Pfizer Limited, a company engaged in manufacturing drugs and pharmaceuticals (hereinafter referred to as "the company"). The other respondents in both the writ petitions are the authorities under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the "MRTU & PULP Act") such as the Labour Judge, Member and President of the Industrial Court.
2. The workmen were the security staff members working with the company. It appears that on or about August 7, 1975, a workman by name Parkar was caught red-handed by the security staff of the company while he was trying to remove certain medicines. This matter was reported to the police and Parkar was taken in police custody. During investigation Parkar appears to have made certain disclosure to the police on account of which the present workmen were also arrested. The company, therefore, losing confidence in the workmen took resort to Standing Order No. 23(4) and by a registered letter, dated August 14, 1975 terminated their services. It was communicated to the workmen, while terminating their services, that they were absent from duty from August 8, 1975 without intimation or permission and it was understood that they were arrested by the police in connection with the theft of the materials of the company. The company contended in their letter to the workmen that while they did not wish to sit in judgment over the police action whether they (workmen) were in fact involved or not in the crime, they (company) were perturbed that the members of the watch and ward staff should even be suspected by the police. They (company) regretted to say that they lost confidence in the stability of workmen of the watch and ward department and came to the conclusion that it would not be in the interest of the company to keep them in their employment. Therefore, their services were terminated with immediate effect by a tender of wages in lieu of one month's notice.
3. This action of the company was challenged by the "Mazdoor Congress", the trade union representing the workmen, by filing complaints of unfair labour practice in the Labour Court, Bombay, under Section 28 of the MRTU & PULP Act. The trade union and the concerned workmen alleged that the orders of the company terminating the services of the workmen were in the nature of punitive action and thus amounted to unfair labour practice covered by Item No. 1(a), (b), (c), (d) and (f) of Schedule IV of the MRTU & PULP Act. Their contention was that the workmen were victimised by the company on a false charge. The prayer was that the company be directed to reinstate the workmen with full back wages.
4. The company resisted these complaints of unfair labour practice contending that while confessing his guilt, Parkar had also involved the present two workmen and as there were allegations of theft against them, the company lost confidence in them and, therefore, their services were terminated. They also contended that they had no malice against the workmen and their action was bona fide on account of loss of confidence in the workmen. It was also one of the contentions of the company that the complaint of unfair labour practice as filed was vague.
5. Subsequently, the workmen made an application before the Labour Court for amendment of the original complaint as they wanted to allege that the ground of loss of confidence was merely a smoke-screen for taking punitive action against the two workmen. The said amendment application was rejected by the Labour Court and the complaints were also dismissed on merits. Therefore, the complainants filed revision application (ULP) Nos. 22 and 23 of 1978 in the Industrial Court.
6. The said revision applications were disposed by Mr. B. B. Tambe, Officiating President of the Industrial Court, on July 21, 1979, allowing the same whereby the orders of the Labour Court were quashed and set aside and the matters were remanded back to the Labour Court to re-consider the maintainability of the complaints in the light of the allegations made in the amendment applications that they (workmen) had been falsely implicated in a criminal case on false and concocted evidence. The Labour Court was also directed to allow the complainants to lead evidence to show whether the victimisation alleged was covered under Item No. 1 of Schedule IV of the MRTU & PULP Act and then decide whether the amendment application should be allowed and find out whether the complaints were tenable.
7. After the two cases went back to the Labour Court, the complainants, on March 4, 1980, filed three different applications.
8. By the first application, the complainants prayed for further amendment of the complaints by inserting para 3(b) as under :-
"That the alleged discharge simpliciter order impugned in these complaints also amounts to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947 and as a condition precedent to the present termination of the services are not admittedly satisfied the termination orders are void and inoperative."
This application was rejected by the Labour Court on the ground that the proposed amendment was beyond the scope of the order of remand made by the Industrial Court on July 21, 1979. It was also observed that the proposed amendment, if allowed, would change the nature of the complaints.
9. By the second application, the complainants prayed for direction to the company to produce the records and proceedings together with the findings given by M/s. V. R. Kale and M. S. Datta who were appointed as members of the Inquiry Committee to enquire into a certain incident of assault or attempt on Dr. Datta Samant, a trade union leader, on or about March 18, 1975. This application was also rejected because, according to the learned Labour Judge, the said incident and the enquiry that followed had no relevance for the decision of the present complaints.
10. By the third application, the complainants prayed for issue of summonses to M/s. V. R. Kale and M. S. Datta to give evidence in respect of the enquiry conducted jointly by them into the incident of assault or attempt of assault on Dr. Datta Samant. This application was also rejected by the learned Labour Judge on the ground that the enquiry into the allegations of assault on Dr. Datta Samant was not at all germane to the complaints in question.
11. Aggrieved by the rejection of the above said three applications, the petitioners filed revision application (ULP) Nos. 20 and 21 of 1980 in the Industrial Court at Bombay. The learned President of the Industrial Court who heard the said revision applications found no fault with the orders of the learned Labour Judge rejecting the three applications of the petitioners and, therefore, he by his judgment and order, dated July 17, 1980 summarily rejected the revision applications.
12. Therefore, the petitioners filed Writ Petition No. 2599 of 1980 in this Court which was admitted on September 15, 1980 and has remained pending final hearing and disposal thereafter.
13. In the meanwhile, after the remand of the matters by the Industrial Court to the Labour Court, the petitioners filed affidavit as and by way of their evidence in the Labour Court upon which they were subjected to cross-examination by the respondent company. The company also examined some witness on their behalf. After the receipt of the evidence and on appreciation of the same, the learned Labour Judge by his order, dated December 28, 1981 rejected the amendment application of the petitioners holding that if the amendment application of the petitioners was allowed, the unfair labour practice alleged against the respondent company would be covered by Item 4(a) and (f) of Schedule II of the MRTU & PULP Act which would be exclusively triable by the Industrial Court and so long as unfair labour practices covered by Item 1(a) and (c) of Schedule IV of the MRTU & PULP Act are concerned, the petitioners could not make out a case. Thereafter, by a cryptic order, dated December 31, 1981, the learned Labour Judge dismissed the complaints of unfair labour practice of the petitioners on the ground that the complaints were vague and no particulars as to the company indulging in unfair labour practice on August 14, 1975 were given in the complaint. The learned Labour Judge also noted in his order that on December 28, 1081 he had rejected the amendment application of the petitioners and that the petitioners had not led any evidence in the matter of unfair labour practice covered by Item 1(a), (b), (c), (d), (e) and (f) of Schedule IV of the Act.
14. Dissatisfied, the petitioners once again went to the Industrial Court by filing revision application (ULP) Nos. 7 and 8 of 1982. The learned member of the Industrial Court who heard the said revision applications by his judgment and order, dated February 10, 1984 dismissed both the revision applications holding that there was nothing wrong in the learned Labour Judge rejecting the applications of the petitioners for amending the original complaints and dismissing the same and further holding that the petitioners had not made out a case of victimisation and dismissing or discharging an employee by falsely implicating in a criminal case.
15. The order, dated February 10, 1984 passed by the Industrial Court dismissing the revision applications of the petitioners has been challenged in Writ Petition No. 2844 of 1984 in this Court invoking writ jurisdiction under Article 227 of the Constitution.
16. As the facts and circumstances leading to filing of Writ Petition Nos. 2599 of 1980 and 2844 of 1984 are the same, both writ petitions were ordered to be heard together on July 25, 1984 (B. C. Gadgil, J.) and that is how both the writ petitions are heard together and are being disposed of by this common judgment.
17. Dr. Kulkarni, learned counsel appearing on behalf of the petitioners, in support of the petitions, urged that both the Courts below erred in disallowing the amendment applications of the petitioners and ultimately dismissing the complaints and the revision applications on a technical ground that if amendments were allowed, the complaints of unfair labour practice would be covered by Schedule II of the MRTU & PULP Act and not by Schedule IV of the said Act and, therefore, the Industrial Court would have jurisdiction and that in fact the evidence led by the petitioners disclosed not only unfair labour practice of victimisation but also discharge or dismissal of the workmen with undue haste which would be covered by Item 1(a) and (f) of Schedule IV of the Act. Opposing the writ petitions, Mr. Rele, learned counsel appearing on behalf of the respondent company, submitted that although amendments to the original complaints were not permitted, the Labour Court had in fact considered the merits of the matters and had rejected the contentions of the workmen that the respondent company had indulged in unfair labour practice and in fact the respondent company had led satisfactory evidence to justify loss of confidence in the workmen. Mr. Rele also urged that Item 7(f) of Schedule IV of the MRTU & PULP Act (discharge or dismissal of an employee with undue haste) was never invoked by the workmen except for mentioning it as one of the items in the complaints and when there was loss of confidence in the workmen, Item 1(f) of Schedule IV of the Act would not apply. Further submission of Mr. Rele is that an item of unfair labour practice cannot override the general law of termination as held by Supreme Court in a catena of cases and that in the facts and circumstances of the case, this is not a fit matter for interfering with orders passed by two courts below while exercising writ jurisdiction of this Court and Article 227 of the Constitution.
18. Now, it is really not necessary to go into the controversy as to whether Labour Court would be justified in dealing with a complaint of unfair labour practice mixed with some of the items covered by Schedule II of the MRTU & PULP Act which could only be tried by an Industrial Court. But the fact remains that the Labour Court as well as the Industrial Court in this case were certainly not justified in dismissing the complaints of the workmen on the ground that they did not make out a case of unfair labour practice after rejecting their applications for amendments to the original complaints. It is no doubt true that the complaints as filed in the Labour Court on November 13, 1975 were, to a certain extent, vague and no detailed particulars of the unfair labour practice were mentioned therein. But it is important to note that in para 3 of the complaints it was alleged by the petitioners that the concerned workmen were dismissed without holding any enquiry into the alleged loss of confidence in them and in reality they were punished and victimised on false charges. It was further mentioned in the same paragraph that the respondent company was guilty of committing unfair labour practice covered by Item 1(a), (b), (c), (d), (e) and (f) of Schedule IV of the MRTU & PULP Act. In support of these complaints, the workmen were allowed to file affidavits as and by way of evidence in examination-in-chief upon which cross-examination was directed to the workmen. A perusal of these affidavits shows that it was the case of the workmen that no charge-sheet was given to them, no opportunity to defend themselves was made available and that this was a case of obvious violation of principles of natural justice. It was also averred in the affidavits that the orders of termination were passed in undue haste which would be an unfair labour practice covered by Item 1(f) of Schedule IV of the MRTU & PULP Act. It was also averred that the so-called discharge simpliciter was not proceeded by following the provisions of Section 25-F of the Industrial Disputes Act, 1947. While pointing out in the affidavits as to the previous good record of the workmen of detecting so many thefts and saving the respondent company from loss of lakhs of rupees, the workmen contended that they should not have been thrown out of the job in the manner in which it was done by the respondent company.
19. It is important to note that in the cross-examination directed to the workmen treating their affidavits as evidence in examination-in-chief no questions were asked to them on the material brought out by them in the affidavits and, therefore, the case of the workmen almost went unchallenged. Under these circumstances, the finding of the Labour as well as of the Industrial Courts that the petitioners had not made out any case of unfair labour practice was perverse. On such evidence adduced by the workmen it would have been just, fair and proper for the Labour and Industrial Courts to have come to a conclusion that the respondent company had indulged in unfair labour practice of discharging or dismissing the workmen with undue haste under Item 1(f) of Schedule IV of the MRTU & PULP Act. Since the respondent company had terminated the services of the workmen on the ground of loss of confidence because they were arrested by the police in an alleged theft case it would be difficult to conclude against the respondent company that they had acted in a mala fide manner and had victimised the workmen whether or not there were merits in the contentions of the workmen that on accounts of their trade union activities and refusal to give evidence against the company in the matter of assault on Dr. Datta Samant that they were victimised by the respondent company. The case of victimisation, true or false or correct or incorrect, was a matter of dispute between the parties and for all that we know that the workmen had a case or did not have a case but it was highly unjust and improper for the Labour and Industrial Courts to have non-suited the petitioners on a specious ground that they had not made out any case of unfair labour practice against the respondent company. Assuming for the sake of argument that the respondent company thought it proper to terminate the services of the workmen for loss of confidence as they were arrested by the police in an alleged case of theft, it should not be forgotten that the action taken by them was with undue haste because the workmen were arrested by the police on a certain statement made by an accused person by name Parkar who was earlier arrested and for all that we know that the said Parkar had given false or wrong information to the police while in custody of the police or he did it under pressure of the police or perhaps the present workmen were really involved in a case of theft. The respondent company should have at least waited for a reasonable time and inquired into the allegations of theft made against the workmen who were members of the staff of Watch and Ward Department and who were responsible for detection of many thefts in the past. Merely because they remained absent from duty for a couple of days and afterwards it came to the notice of the respondent company that they were suspected by the police for committing theft, the respondent company should not have in an ugly haste terminated their services so fast as they did which certainly would amount to discharge or dismissal of a workman with undue haste, an act of unfair labour practice covered by Item 1(f) of Schedule IV of the MRTU & PULP Act. It may be incidentally mentioned here that both the workmen were acquitted of the charge of theft levelled against them, one at the trial stage and the other at the appellate stage.
20. While submitting that in a case of loss of confidence Item 1(f) of Schedule IV of the Act would not apply and that an item of unfair labour practice cannot override the general law of termination, Mr. Rele submitted that the test is whether the action of the respondent company was bona fide and if it was bona fide then their action cannot be and should not be interfered with and that if an employer had a choice of termination or to take disciplinary action, it was permissible to them to choose either one and further that when the criminal proceedings were pending, it was useless for the company to start any disciplinary proceedings before the services of the workmen were terminated. Mr. Rele also urged that the loss of confidence in the present case was of high risk to keep the present employees in the employment because they were the members of the staff of Watch and Ward Department and were involved in a case of theft and suspicion alone was enough for terminating their services. Mr. Rele further submitted that there cannot be an application of concept of "undue haste" in a case of loss of confidence as, once confidence in an employee was lost, the question of waiting to terminate the services does not arise. In support of his contentions, Mr. Rele relied upon (i) Tata Engineering and Locomotive Company Ltd. v. Prasad (S.C.) and other (1969-II-LLJ-799), (ii) L. Michael and other v. M/s. Johnson Pumps India Ltd (1975-I-LLJ-262), (iii) Air-India Corporation v. V. A. Rebellow and another (1972-I-LLJ-501), and (iv) The Workmen of Sudder Office, Cinnamara v. The Management of Sudder Office and another (1971-II-LLJ-620). There is no dispute about the principles of law enunciated in these authorities but those cases were decided in the facts and circumstances obtaining therein and much prior to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 came into force on September 8, 1975 under which a clear provision is made that it would be a general unfair labour practice on the part of an employer to discharge or dismiss an employee with undue haste under Item 1(f) of Schedule IV of the said Act. Therefore, the general principles of law discussed would not apply in our case. Dr. Kulkarni is right in his submission that the cases referred to and relied upon by 'employer' were much prior to the introduction of Section 11-A of the Industrial Disputes Act, 1947 on December 15, 1971 under which the Labour Courts, Tribunals and National Tribunals were for the first time given powers to give appropriate relief to the workmen in case of discharge or dismissal. In other words, the submission of Dr. Kulkarni is that the cases referred to and relied upon by Mr. Rele prior to December 15, 1971 will have no relevance in the matter of giving appropriate relief to a discharged or dismissed workman.
21. I find no force in the argument of Mr. Rele that unfair labour practice covered by Item 1(f) of Schedule IV of the MRTU & PULP Act was never invoked except for mentioning it as one of the items in the complaints and that if it was properly pleaded both parties had an opportunity to lead the evidence and the company would have proved that the stolen goods were found with the workmen and of course there can always be a presumption that the workmen had committed theft because they were arrested. As pointed out earlier, the workmen had mentioned in their affidavits that their services were terminated with undue haste about which there was no cross-examination by and on behalf of the respondent company and in fact the respondent company had also adduced evidence but without emphasising their case that they were left with no alternative but to dismiss the workmen with undue haste.
22. In this view of the matter, the impugned orders passed by the Labour and Industrial Courts have got to be quashed and set aside as being perverse. In the facts and circumstances of this case, I do not think it appropriate and necessary to remand the matter back to the Labour Court which may result in "history repeating itself" and there will be no end to this matter. I, therefore, propose to finally dispose of the complaints of unfair labour practice of the workmen here and now. Delay in the disposal of the cases of the workmen should not be allowed to defeat justice. There has been enough delay in the disposal of the instant cases. Further delay will amount to denial of justice to the concerned workmen because they cannot any longer wait without work.
23. In the result, the impugned orders passed by the Labour and Industrial Courts are quashed and set aside. It is hereby declared that the respondent company indulged in unfair labour practice covered by Item 1(f) of Schedule IV of the MRTU & PULP Act. They shall cease and desist from further indulging in the unfair labour practice and reinstate the workmen in their original positions with all consequential benefits, full back wages and continuity of service.
24. Rule is accordingly made absolute but with no order as to costs.
25. Mr. Rele orally applies for leave to appeal to Supreme Court. As this is a matter that has been pending for nearly fifteen years and the employees are at the receiving end and in my opinion no question of law of public importance is involved, leave asked for is refused. However, the respondent company is granted time of six weeks to implement this order.