Bombay High Court
Bharat Petroleum Corporation Ltd. vs Barrister Prasad And Ors. on 29 September, 1994
Equivalent citations: (1995)IILLJ536BOM
JUDGMENT V.P. Tipnis, J.
1. Respondent No. 1 in Writ Petition No. 3613 of 1991 was employed as a watchman by the petitioner-company at its installation at Sewree on and from 13.11.1980. Initially, he was employed as a security watchman at Sewree installation on purely temporary basis. At the relevant time, he was serving as a security watchman at Sewree installation and was entrusted with the job of guarding the installation which is a storage point for petroleum products of highly inflammable and hazardous nature. On an earlier occasion, respondent No. 1 was given a warning for remaining absent without prior permission. On 8.6.1981 respondent no. 1 was on duty as a watchman to guard the company's property at Sewree installation in the third shift i.e. between 2330 hrs. and 7.30 hrs. On a surprise check, respondent No. 1 - workman who was working as a security watchman was found sleeping at 1.30 hrs. or thereabout by the Operation Officer Alurkar. Again at 4.30 hrs. on the same night havaldar Pilankar who was on his rounds did not find respondent No. 1 - workman at his post and after a search for about ten minutes, he found respondent No. 1 sleeping on the ground near the cylinder godown at 'K' installation. The said Pilankar removed the stick provided to respondent No. 1 and respondent No. 1 was found obvious to the said removal. Alurkar made an entry in the log book on 8.6.1981 and Pilankar submitted his statement on 9.8.1981. On 10.6.1981 respondent No. 1 was called upon by the Security Officer to give his explanation. Respondent No. 1 admitted of having slept on two occasions as mentioned and pleaded for mercy on the ground that he was keeping indifferent health. A regular enquiry was held and respondent No. 1 was charged with committing an act of misconduct, viz., acts subversive of discipline. The enquiry was conducted from 25.8.1981 and concluded on 30.12.1981. The company examined Alurkar, Pilankar and one Tedkar who was working as co-watchman along with respondent No. 1 on the relevant day. Respondent No. 1 - workman examined himself in his defence. The Enquiry Officer submitted his report on 19.3.1982. The Enquiry Officer found respondent No. 1 guilty of the charges levelled against him. The General Manager of the petitioner company by order dated 6.4.1982 ordered the dismissal of respondent No. 1 from the services of the petitioner.
2. Respondent No. 1 raised a dispute in regard to his dismissal which was referred by the Central Government to the Central Government Industrial Tribunal No. 1 at Bombay. Before the Tribunal, several points were raised. By award part-I passed on 17.9.1990, the Tribunal negatived all the contentions regarding fairness and propriety of the disciplinary proceedings. Upon the issue as to which Standing Order is applicable, the Tribunal left the question to be decided at the final stage. Ultimately, the Tribunal held that the enquiry proceedings are not bad or are not vitiated for any reason.
3. Being aggrieved by the award part-I, respondent No. 1 - workman filed Writ Petition No. 36090 of 1990 before this Court. The same was, however, rejected by granting liberty to the parties to raise all the contentions if it becomes necessary to do so after the final award is passed.
4. The Tribunal passed award part-II on 1.5.1991. After going through the entire matter and the evidence, the Tribunal came to the conclusion that the act of the workman is a misconduct under standing order 26(1) and not merely a minor misdemeanor under standing order 28(k). Ultimately, the Tribunal upheld the finding of the disciplinary authority that the workman has committed an act subversive of discipline.
5. The Tribunal, thereafter, addressed itself whether the outright dismissal from service is proper punishment for the proved misconduct. The Tribunal observed that it cannot be denied that the workman had acted irresponsibly by going to sleep when he was supposed to guard the installation. However, the Tribunal felt that this appears to be the first serious lapse on his part. In the explanation just two days after the incident, the workman stated that he was unwell on the night concerned. The Tribunal also referred to Pilankar's evidence to the effect that during his visit at 2 a.m. the workman was found alert. Considering all the circumstances of the case, the Tribunal felt reduction of the workman's pay be two stages for two years without effect on future increments would squarely meet the ends of justice. With regard to backwages, the Tribunal felt that the seriousness of his lapse cannot be overlooked and, therefore, though the Tribunal directed reinstatement, the workman was held entitled to only 50% of the backwages. Feeling aggrieved by the said decision, the petitioner-company preferred this writ petition.
6. I have heard Mr. Rele, learned counsel appearing for the petitioner, and Mr. Grover learned counsel appearing for respondent No. 1 - workman. Mr. Rele submitted that having come to the conclusion and the finding that the workman was guilty of the misconduct alleged and having further come to the conclusion that it was a very serious lapse on the part of the workman, the Tribunal was indeed nor right and justified in finding that the punishment of dismissal was not proper. Mr. Rele further submitted that the Tribunal also had no jurisdiction to award the so-called punishment of stoppage of increments for two years inasmuch as it is not one of the punishment prescribed under the Standing Orders. Mr. Rele urged that the Tribunal does not have unfettered discretion and the Tribunal has to use the judicial discretion. In that behalf, Mr. Rele relied upon the decision of the apex Court in Christian Medical College Hospital Employees' Union v. Christian Medical College Vellore Association . Mr. Rele also relied upon the decision of the Apex Court in Kerala Solvent Extractions Ltd. v. Unnikrishnan 1994 I CLR 820. Mr. Rele also relied upon the decision of the Andhra Pradesh High Court in ITC Bhadrachalam Paper v. The Industrial Tribunal 1993 II CLR 560. Mr. Rele, therefore, urged that in the facts and circumstances of the case, the interference by the Tribunal in the punishment of dismissal is thoroughly uncalled for and is not the judicial exercise by the Tribunal. He, therefore, urged that the said decision be set aside.
7. On the other hand, Mr. Grover, learned counsel appearing for respondent No. 1 - workman, firstly contended that on proper reading of the Standing Orders the charge cannot fall within Standing Orders No. 26(1) and if at all, it would fall squarely in Standing Order No. 28(k). Thereafter, the punishment of dismissal, according to Mr. Grover, can never be inflicted even if the act of sleeping on duty by a watchman is proved. Mr. Grover then submitted that the jurisdiction and desecration of the Tribunal under section 11A of the Industrial Disputes Act is vide enough to modulate the order of punishment as it thinks fit while awarding reinstatement. Mr. Grover in that behalf relied upon some observations in para 31 of the apex Court in The Workmen of M/s. Firestone Tyre & Rubber Co. v. The Management .
8. I will first deal with Mr. Grover's contention that the punishment cannot fail properly under standing order 26(1) but it must fall under standing order 28(k). It must be noticed that this contention has been negatived by the Tribunal and for good reasons. Standing Order 28 provides that the workman may be warned or censured for any of the acts and/or omissions mentioned therein which include (k) idling or sleeping on duty whereas standing order 26(1) with which the workman was specifically charged provides that the following acts and/or omissions on the part of a workman shall amount to misconduct :-
" (1) Commission of any act subversive of discipline or good behaviour on the Company premises, or in the course of duty; or outside the Company premises, if it is proved to have directly affected the discipline or the administration of the Company."
The Tribunal adverting to this aspect has observed that sleeping while on duty may differ in seriousness depending upon the nature of the work and the requirements of the duty. The Tribunal very correctly had emphasised the point by saying that an office peon dozing for a minute or two and a watchman going to sleep for substantially long stretches of time while he is supposed to guard a petroleum installation cannot be treated on par. Taking into consideration that though idling or sleeping on duty can fall under standing order 28(k), the same conduct depending on facts and circumstances can also fall under standing order 26(1). Mr. Grover with some emphasis submitted that unless the act or conduct is shown to have directly affected the discipline or administration of the company, it cannot fall under standing order 26(1). In my opinion, this is not the correct reading of standing order 26(1). It lays down that commission of any act subversive of discipline or good behaviour on the company premises, or in the course of duty is one of the misconducts. The said sub-clause further lays down that any act outside the company premises of it is proved to have directly affected the discipline or the administration of the company also amounts to misconduct. The requirement of proving that the misconduct has directly affected the discipline or administration of the company is only applicable when the act subversive of discipline or good behaviour is outside the company premises. It is so clear that when the Act is on the company premises, there is no question of further proving of directly affecting the discipline of the administration of the company. Looking to the fact that the workman concerned was a watchman specifically entrusted with the duty of watching the installations, there can be no manner of doubt that sleeping while on duty by a watchman guarding very vulnerable installation is a conduct subversive of discipline. The workman was rightly charged for misconduct under standing order 26(1). So far as Mr. Grover's reliance on the observations of the apex court in para 31 of the decision in Workman of Firestone Tyre & Rubber Co. is concerned, it requires to be notices that it deals with what is described as a beneficent rule of construction and lays down that if two constructions are reasonably possible to be placed on the section, it follows that the construction which further the policy and object of the Act and is more beneficial to the employees has to be preferred. Another principle to be borne in mind is that the Act in question which intends to improve and safeguard the service conditions of an employee, demands an interpretation liberal enough to achieve the legislative purpose. However, the apex Court immediately has added :-
"But we should not also lose sight of another canon of interpretation that a statute of for the matter of that even a particular section, has to be interpreted according to its plain words and without doing violence to the language used by the legislature."
I am afraid that the observations are only on the point of rule of interpretation. There is no question before me regarding interpretation of section. The question is whether on the facts and circumstances of the case, the Tribunal could have reasonably reached the conclusion that the dismissal was not justified. In that behalf, the observations of the apex Court in Christian Medical College's case are very relevant. In para 14, after referring to the apex Court's decision in Indian Iron & Steel Co. Ltd. v. Their Workmen AIR 1958 S. C. 130, the Apex Court stated as under :-
".... This Court has observed that the powers of an industrial tribunal to interfere in cases of dismissal of a workman by the management are not unlimited and the Tribunal does not act as a court of appeal and substitute its won judgment for that of the management. It will interfere (a) where there is want of good faith; (b) when there is victimisation or unfair labour practice; (c) when the management has been guilty of the basic error or violation of the principles of natural justice; and (d) when on the materials before the Court the finding is completely baseless or perverse. It cannot, therefore, be said that the Industrial Tribunal or the Labour Court will function arbitrarily and interfere with every decision of the management as regards dismissal or discharge of a workman arrived at in a disciplinary enquiry. The power exercisable by the Industrial Tribunal or the Labour Court cannot, therefore, be equated with the power of 'veto' conferred on the Vice-Chancellor under Cl. (b) of either of the two sub-sections of S. 51-A of the Gujarat University Act, 1949. As we have already said earlier the decision of the Industrial Tribunal or the Labour Court is open to judicial review by the High Court and by this Court on appeal. Section 11-A which has been introduced since then into the Act which confers the power on the Industrial Tribunal or the Labour Court to substitute a lesser punishment in lieu of the order of discharge or dismissal passed by the management again cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under S. 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decisions. The decision of the Industrial Tribunal or of the Labour Court is again, as already said, subject to judicial review by the High Court and this Court."
9. In Kerala Solvent Extractions Ltd. v. Unnikrishnan 1994 I CLR 820, the apex Court has observed as under :-
"9. We are inclined to agree with these submissions. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should nor incur and justify the criticism that the jurisdiction of courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emsnate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expensive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconciliable situations and denude the judicial process of its dignity, authority, predictability and respectability."
10. Coming to the facts and circumstances of the case before me, it is relevant to notice that respondent no. 1 was, at the relevant time, supposed to guard very vital installations as a security watchman. In my opinion, a watchman sleeping on duty in such circumstances is absolutely irresponsible behaviour which Mr. Rele has justifiably described as unpardonable. The Tribunal, in fact, in the award at more than once place clearly adverted to the seriousness of the lapse on the part of the watchman. The Tribunal has correctly observed that idling or sleeping on duty may happen under varied situations making it a gross misconduct in one case and a minor misdemeanor in another. After observing this, the Tribunal again reported that the workman had acted irresponsibly in going to sleep when he was supposed to guard the installation and further observed that however it appears to be the first serious lapse on his part and that he had given explanation just two days after the incident that he was unwell on the night concerned. The Tribunal further referred to the evidence of Pilankar to the effect that during his visit around 2 a.m. the workman was found alert. For these reasons, the Tribunal felt that reduction of the workman's pay by two stages for two years without effect on future increments would squarely meet the ends of justice. After having considered the matter with all seriousness, I am of the view that the Tribunal has not exercised judicial discretion. The reason that Pilankar found the watchman alert around 2 a.m., in my opinion, does not absolve the orkman of the serious lapsee on his part. The workman was working as a security watchman. He was found sleeping at 1 o'clock. He was awakened by Alurkar. Thereafter, at 2 o'clock Pilankar found the workman awake. But again at 4.30 a.m. not only this security watchman was not found at the place where he should have been, but Pilankar had to search for him. He found the workman sleeping at some other place and he was so fast asleep that he did not notice even the removal of his stick by Pilankar. In my opinion, such a watchman who is a security watchman guarding vital installation like petroleum products being found asleep at 1 o'clock and again found asleep and not being at his place of work at 4.30 a.m. is a very serious act of misconduct and by no stretch of imagination, it can be said that the punishment of dismissal is not justified. In the facts and circumstances of the case and in view of the law laid down by the apex Court to which I have already made a reference, I am of the clear opinion that the Tribunal exceeded its jurisdiction and erred in interfering with the punishment of dismissal.
11. In the result, writ petition No. 3613 of 1991 succeeds. The award part-II dated 1.5.1991 passed by the learned Presiding Officer, Central Government Industrial Tribunal No. 1, Bombay, in Reference No. OGIT-37 of 1988 is quashed and set aside and the order of dismissal of the workman by the petitioner-company is confirmed. The rule is made absolute in the aforesaid terms in Writ Petition No. 3613 of 1991. There shall be no order as to costs.
12. Coming to writ petition No. 3669 of 1991, this is a petition by the workman against the very award part-II insofar as it denies full backwages to the petitioner-workman. In view of the decision in Writ Petition No. 3613 of 1991, this petition will have to be dismissed. Accordingly, the rule in writ petition No. 3669 of 1991 is discharged. There shall be no order as to costs.
13. The company had deposited an amount of Rs. 1,04,000/- in pursuance of the orders of this Court. The said amount obviously shall be refunded to the company i.e. Bharat Petroleum Corporation Ltd. On the application of Mr. Grover, learned counsel appearing for the workman, the order regarding refund is stayed till 16th November, 1994.