Bombay High Court
Madhukar R. Mahadik vs Indian Express Newspapers Pvt. Ltd. on 12 March, 1992
Equivalent citations: [1992(65)FLR860], (1993)IIILLJ667BOM
JUDGMENT M.L. Dudhat, J.
1. By this Writ petition, the petitioner has challenged the order dated March 1, 1984 which is at Ex. G, passed by the fourth respondent in Complaint (ULP) No. 6 of 1983.
2. The petitioner in this case was employed with Respondent No. 1 as a Bailer doing unskilled work. The petitioner joined Respondent No. 1's company on May 4, 1971 and was made permanent in the month of November 1971. The petitioner was in continuous service from the date of his appointment till January 5, 1983, on which date he was discharged from his duties by a letter dated January 5, 1983. In the said letter it was stated that the petitioner was directly involved in a grave and serious incident of assault on a co-worker, which took place at about 12.30 p.m. on January 3, 1983, in the company's premises when he was on duty. It was further stated in the aforesaid letter of discharge that due to the aforesed incident Respondent No. 1 was of the opinion that it was unsafe to continue him in the employment as Respondent No. 1 had lost confidence in the petitioner as a duty-minded worker. Therefore, the services of the petitioner were terminated under Standing Order No. 25(1) with immediate effect. The aforesaid order dated January 5, 1983, which is at Ex. = A, was received by the petitioner on January 14, 1983. Thereafter on January 18, 1983, the petitioner filed a complaint before the fourth respondent stating therein that the aforesaid order dated January 5, 1983 was passed by the first respondent in violation of Item I Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act of 1971"). Mainly, it was contended on behalf of the present petitioner that by the aforesaid order, the petitioner was victimised as he belonged to the Maharashtra General Kamgar Union and not to the Indian Express Employees Union. Secondly, it was contended on behalf of the petitioner in the said complaint that the aforesaid order terminating the services is in violation of rules of natural justice and, therefore, the same is bad in law. It was also contended on behalf of the present petitioner in the said complaint that the said order was passed in colourable exercise of power of Respondent No. 1 with a view to victimise the present petitioner. Therefore, the petitioner has prayed for setting aside the order of termination of his services and also sought for other consequential reliefs.
3. Respondent No. 1 filed its written statement before the fourth respondent challenging the aforesaid allegations as made by the petitioner in the aforesaid complaint. In the said written statement it was contended on behalf of Respondent No. 1 that on January 3, 1983, the petitioner entered into an argument with his co-worker one Mr. S.H. Bhise. In the said argument, suddenly for no apparent reasons the complainant struck S.H. Bhise with a lead block as a consequence of which the said Bhise was knocked down and started bleeding profusely. Mr. Bhise was, therefore, treated in the hospital and six to seven stitches were given to him on his head. Thereafter a complaint was filed at the Coloba Police Station by the said Mr. Bhise. The above incident was also reported to the Personnel Manager, who investigated the incident, and placed the matter before the General Manager. It was brought to the notice of the General Manager by the Personnel Manager and after consulting the workers, Manager and other material before the General Manager, the General Manager of Respondent No. 1 came to the conclusion the petitioner was of impulsive nature and it was unsafe to continue him in service or keep him under suspension. According to the General Manager of Respondent No. 1 because of the presence of the petitioner the colleagues working with him were feeling insecure and hence on recommendation of the workers and the Managers it was decided to terminate the services of the petitioner as per the provisions under Section 25(1) of the Standing Orders. Thereafter, the fourth respondent allowed both the parties to lead evidence. Respondent No. 1 led evidence by examining S.H. Bhise, the injured co-worker, K.P. Kadam, who was present at the time of the incident and who is an eye witness to the incident and also one Mr. Srinivasan, the General Manager of Respondent No. 1. The petitioner never entered into the witness box nor did he examine any witness.
4. After hearing both the sides, Respondent No. 4 dismissed the complaint by coming to the conclusion that the petitioner failed to prove and substantiate the allegations made by him in the complaint. Against the said decision of Respondent No. 4 dated March 1, 1984, the present writ petition is filed by the original complainant.
5. Mr. Grover, the learned counsel appearing on behalf of the petitioner, firstly contended that the action dated January 5, 1983 of Respondent No. 1 terminating the services of the petitioner is by way of victimisation and is not in good faith and that the said action was taken under colourable exercise of the employer's right and thereby Respondent No. 1 has committed breach of Items (a) & (b) of Schedule IV. According to me there is no substance in the aforesaid contentions made by Mr. Grover. In this case, after filing the complaint the petitioner has led no evidence whatsover and since the onus is on the complainant, the petitioner, to prove the allegations made in the complaint, and since he has not examined any witnesses or led any evidence to that effect, without going in further details, I am rejecting the aforesaid contentions. Further it was contended on behalf of the present petitioner that the action dated January 5, 1983, taken by Respondent No. 1 terminating the services of the petitioner is in utter disregard No 1 /SS to the principles of natural justice and, therefore, according to the petitioner, Respondent No. 1 violated Item 1(f) of Schedule IV. It was argued on behalf of the petitioner by Mr. Grover, that the loss of confidence by the employer in the employee is a feature which certainly affects the character of the employee and, therefore, loss of confidence amounted to stigma. That being the position, according to the petitioner, Respondent No. 1 ought to have held domestic enquiry. Failure on the part of Respondent No. 1 to hold such an enquiry amounts to violation of rules of natural justice and, therefore, the order, dated January 5, 1983, is bad in law and is liable to be struck down. For that purpose the petitioner has relied upon the decision of the Supreme Court in the case of Chandulal v. The Management of Pan American World Airways, 1985 II L.L.J. 181. The petitioner also has relied upon another decision of the Supreme Court in the case of K.K. Lakshman v. The MGT. of P.A.W. Inc. and Ors. 1987I LLJ 107. Mr. Cama, the learned Counsel, for Respondent No. 1 fairly conceded that in view of the aforesaid two decisions of the Supreme Court, in the case of loss of confidence by employer in an employee, since it amounts to stigma, domestic enquiry is desirable. However it was contended on behalf of Respondent No. 1 that even if such an enquiry is not held before the issuance of action of termination of service Respondent No. 1 can lead evidence before the Labour Court under the Act of 1971 and after going through the evidence the Labour Court may or may not come to the conclusion that the order of termination of service was under the bona fide exercise of power of the management, and that the Labour Court i.e. Respondent No. 4 in this case is right in dismissing the complaint filed by the present petitioner. On the other hand, Mr. Grover, appearing on behalf of the petitioner contended that though such evidence can be led with reference to domestic enquiry under Section 11(a) of the Industrial Disputes Act, under the Act of 1971 fourth respondent has no jurisdiction to allow the employer, Respondent No. 1, to lead evidence to show that there was substantial material on record to indicate that any reasonable employer would lose confidence due to the behaviour of the petitioner. According to me the observations made by the Supreme Court in the case of K.K. Lakshman (supra) more particularly in paragraph 10 of the Judgment, are sufficient to settle this controversy. In paragraph 10 the Supreme Court has observed that the legal position firmly established is that if there has been no appropriate domestic enquiry or no enquiry at all before disciplinary action is taken, it is open to the employer to ask for such opportunity in the course of adjudication. According to Mr. Grover, the learned Counsel appearing on behalf of the petitioner, the aforesaid observation made by the Supreme Court were in a matter under the Industrial Disputes Act and the position as under the Act of 1971 is different from the Industrial Disputes Act. According to my opinion, on the principles as laid down by the Supreme Court, even under the Act of 1971, respondent No. 1 is entitled to lead evidence in the event Respondent No. 1 has failed to hold the domestic enquiry. Mr. Cama, for Respondent No. 1, has relied upon a decision of this Court in the case of Amravati Dist. Cen. Co-op. Bank Ltd. v. Shamrao (1982 Mah. L.J. 436). While deciding this case Padhye, J. held that where the services of an employee are terminated for misconduct and the employee challenges the order of termination under Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, and the Labour Court holds that the domestic enquiry conducted by the employer was illegal, improper and against the principles of natural justice, the Labour Court can give opportunity to the employer to establish the merits of the charges and can allow him to adduce evidence to prove charges against the employee. I also agree with the observations made by Padhye, J. The aforesaid finding is also supporterd by the findings of this Court in several matters, viz. in the case of Sanjiv P. Jathan v. Larsen & Toubro Ltd. Bombay and Ors.: 1989-n LLJ 194, The Cosmos India Rubber Pvt. Ltd. v. Mumbai Mazdoor Sabha and Ors. 1989 I CLR 432, and Ram Naresh Tripati v. S.D. Rane and Ors.: 1992 II LLJ 519. In view of the aforesaid decisions I reject the contentions raised by Mr. Grover, the learned Counsel appearing on behalf of the petitioner, and come to the conclusion that even if Respondent No. 1 has terminated the services of the petitioner on January 5, 1983, without holding domestic enquiry, Respondent No. 4, the Labour Court, can give an opportunity to Respondent No. 1 to establish the merits of the charges and allow them to adduce evidence to prove the charges against the employee. There- fore, I further hold that Respondent No. 4 was justified in allowing Respondent No. 1 to lead evidence and allow them to establish the merits of the charge against the petitioner- employee.
6. In the earlier portion of my judgment I have already held that in the complaint filed by the petitioner there is no pointed reference to any factual aspect as to how order dated January 5, 1983, is passed victimising the petitioner not in good faith but under a colourable exercise of Respondent No. 1's power. Therefore, now the only question which I have to decide is as to whether there was sufficient material before Respondent No. 1 to come to a conclusion that it was unsafe to continue the petitioner in the employment of Respondent No. 1 as Respondent No. 1 had lost confidence in him. To substantiate the aforesaid action dated January 5, 1983, Respondent No. 1 examined in all three witnesses. Mr. S.H. Bhise, who was injured on the date of the incident, has stated that he was serving in the composing department. At about 11.30 a.m. on January 3, 1983, he and other witness Kadam were in conversation and at that time the petitioner interfered in their conversation when he was not concerned about the same and started using filthy language. When this witness told the petitioner that he had no business to address him in such words, the petitioner got angry, lifted a piece of lead lying there and threw the same al the witness. Due to the said act of the petitioner, he was severely hurt and had a bleeding injury on the head. He further stated that thereafter he complained about it to the Personnel Manager Potekar and also lodged a complaint in the police station. His version is also more or less supported by the other witness Mr. K.P. Kadam who was also an eye witness. It is an admitted position that the petitioner=Respondent No. 1 suffered a bleeding injury on his head but according to the petitioner the said injury was caused due to fall and not due to the assault by a lead article thrown by the petitioner. Respondent No. 1 also examined the General Manager and in his deposition he has stated that on the date of the incident he was empowered to employ or dismiss or discharge any employee in the employment of Respondent No. 1. He also stated that the order dated January 5,1983 terminating the services of the petitioner was issued by him. According to him, he issued the said order after it was reported to him that the petitioner was of impulsive nature and that his colleagues were feeling insecure in his presence. This information was brought to his notice by the Personnel Manager, Potekar. Therefore after directing Mr. Potekar to take the injured to the Hospital, he discussed the matter with other workers and the Works Manager and also with other eye witnesses and issued the said order. According to him this order was issued after hearing all the concerned persons and after coming to the conclusion that the petitioner was of impulsive nature and it was unsafe to continue him in service or keep him under suspension any longer. Further, he came to the conclusion that the colleagues of the petitioner were feeling insecure due to the presence of the petitioner and therefore the decision was taken by him to terminate the services of the petitioner with immediate effect as per the provisions under Section 25(1) of the Standing Orders. He further stated that at the time when the said action was taken by him, he did not know as to which Union the petitioner belonged. In the cross-examination he has also stated that he did not know the petitioner personally. After taking into consideration the aforesaid evidence Respondent No. 4 came to the conclusion that there was sufficient material before the General Manager of Respondent No. 1 to come to the conclusion that it was unsafe to continue the petitioner in the employment of Respondent No. 1 and that Respondent No. 1 lost confidence in the petitioner as a duty minded worker. Therefore, the fourth respondent concluded in his judgment that the evidence on record shows that the Management acted in good faith while issuing the order dated January 5, 1983. In view of this I am of the opinion that the fourth respondent was right in dismissing the complaint filed by the present petitioner and in any case the said finding arrived at by the fourth respondent cannot be disturbed in the writ jurisdiction.
7. Before concluding, I may point out that Mr. Grover, the learned Counsel appearing on behalf of the petitioner, has contended that from the fair reading of the letter dated January , 1983 which is at Ex.-A, it is clear that Respondent No. 1 failed to pay retrenchment compensation which is condition precedent under Section 25(F) of the Industrial Disputes Act. It was also contended on behalf of the petitioner that at the time of filing the complaint or even at the time of filing this writ petition this argument was not available and that is why it was not taken in the original complaint or in the writ petition by the petitioner. According to my opinion, since the aforesaid contention is not taken in the complaint or in the writ petition, the petitioner will not be entitled to argue the said alleged breach committed by Respondent No. 1. Apart from that the fourth respondent has specifically given a finding that "Instead, it decided to discharge the workman forthwith by paying him one month's notice wages and the admissible dues as per Section 25F of the Industrial Disputes Act, 1947". In view of this, according to me, there is no substance in the aforesaid submissions made by Mr. Grover, the learned Counsel for the petitioner.
In view of these observations I confirm the decision given by the fourth respondent and dismiss the writ petition with no order as to costs.