Bombay High Court
Sanjiv P. Jathan vs Larsen And Toubro Ltd. Bombay And Others on 29 July, 1988
Equivalent citations: [1989(58)FLR522], (1989)IILLJ194BOM
JUDGMENT
1. By this petition under Article 226 read with Article 227 of the Constitution of India, the petitioner-workman (hereinafter referred to as : 'the workman') challenges the judgment and order passed by the learned Presiding Officer, First Labour Court, Bombay, in complaint (ULP) No. 231 of 1977 dismissing the same on 29th July, 1981.
2. The relevant facts giving rise to this writ petition are as under :
The workman joined the services of the first respondent-company (hereinafter referred to as 'the Company') on July 17, 1961 and at the relevant time when his services were terminated by an order dated November 26, 1977 he was working as Assistant Store Keeper. It was his case that since 1975 he was working as Joint Secretary of the Larsen & Toubro Group of Companies Employees' Union which was recognised by the company on January 20, 1976 as a representative union representing the majority of the workmen. He also contended that there was another union called Bharatiya Kamgar Sena which was also operating in the company and by some acts of omission and commission, the company created inter-union rivalry between these who two unions. Then it was alleged that on account of certain violent incidents, the members of the union of the workman were prevented from reporting for work from September 1977. The workman contended that he has addressed a number of letters to the company requesting them to give him adequate protection and take necessary actions against those of the workmen who were indulging in violence, but no steps were taken by the company. Instead, the company issued a charge-sheet to him on November 16, 1977 alleging that on account of his absence from work from September 1, 1977 without permission he violated certain Standing Order. Then he contended that despite the said charge-sheet no enquiry was held against him. The company served the workman with another charge-sheet dated November 21, 1977. The workman tendered explanation by his reply dated November 23, 1977 but thereafter by a letter dated November 26, 1977, the company terminated his services under Standing Order 27(1) alleging that they had lost confidence in him. Under these facts and circumstances, the workman filed a complaint of unfair labour practice covered by item No. 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as'the Act') in the Labour Court presided over by the second respondent.
The company resisted the said complaint contending that the services of the workman were terminated due to loss of confidence in him and, therefore, no cause of the action can be said to have accrued under the provisions of item 1 of Schedule IV of the Act and as there was no punitive dismissal or discharge of the workman the complaint was not maintainable. It was also contended on behalf of the company that the services of the workmen were terminated simpliciter in exercise of the right conferred on the company under Standing Order 27(1) and that cannot be said to be wrong or mala fide. According to the company, the inter-union rivalry assumed unproportionate dimensions causing violence and assaults on the premises of the establishment and also caused damage to the company's property and, therefore, it had to suspend its operations several times. According to them on account of inter-union rivalry there was a regular warfare and in the interest of the business and with a view to resuming operations of its establishment it had no alternative but to terminate the services of some of its workmen who in their opinion were responsible for fomenting trouble and unrest and whose continuance in the employment was dangerous to the working of the company. It was further contended on behalf of the company that they they had terminated the services of all five employees of which four were the members of Bhartiya Kamgar Sena. They contended that there were about 6000 employees working in the company and it was impossible for them to provide protection to each of them in the prevailing atmosphere. The company denied that they had in collusion which Bhartiya Kamgar Sena prevented the workmen and members of the union to which the present workman belonged from reporting for work and contended that it was the responsibility and duty of the workmen to report for work and not to shift the blame on the company. In such facts and circumstances, according to the company, they engaged in no unfair labour practice and, therefore, the complaint deserves to be dismissed.
On such pleadings before him, the learned Labour Judge framed relevant issued. At the trial, the petitioner workman examined himself and relied upon some of the documents. No oral evidence was adduced on behalf of the company. On appreciation of the evidence adduced before him, the learned Labour Judge came to the conclusion that the complaint of unfair labour practice as filed by the workman was maintainable. However, he held that the company did not engage in unfair labour practice in terminating the services of the workman and, therefore, the complainant-workman was not entitled to any relief. He accordingly by his impugned judgment and order dismissed the workmen's complaint. Being aggrieved, the workman filed the present writ petition.
3. In support of the writ petition, Dr. Kulkarni, learned Counsel appearing on behalf of the workmen, urged that the workman had all throughout entreated and requested the company to give him protection because he and the members belonging to his union were subjected to violence and assaults and under such circumstances he was not bale to attend his duties but instead of giving protection to the workman, the company served him with two chargesheets and held no domestic enquiry into the allegations made against him and all of a sudden terminated his services on a specious ground that on account of the recent activities of the workman, the company had lost faith in him. Dr. Kulkarni further submitted that the company did not even adduce evidence to established their charges against the workman in the Labour Court. This, in the submission of Dr. Kulkarni, amounts to wrongful and illegal discharge and/or dismissal of the workman which would violate the provisions of item 1 of Schedule IV of the Act and the learned Labour Judge was totally wrong in dismissing the complaint of the workman by holding that the company did not indulge in any unfair labour practice as alleged. Controverting the submissions of Dr. Kulkarni, Mr. Shetye, learned Counsel appearing on behalf of the company, urged that the learned Labour Judge came to the conclusion as he did purely on facts and on appreciation of the evidence adduced before him, which findings of fact should not be interfered with by this Court while exercising writ jurisdiction under Articles 226 and 227 of the constitution. Mr. Shetye further submitted that on the evidence led in the Labour Court, another view could be possible but that by itself would not entitle this Court to upset the findings of fact arrived at by the learned Labour Judge in holding that the company did not commit unfair labour practice covered by item 1 of Schedule IV of the Act Mr. Shetye then submitted that the services of the workman were terminated simpliciter on the ground of loss of confidence which does not amount to retrenchment. Mr. Shetye fairly conceded that termination of services of a workman on the ground of loss of confidence is stigmatic and, therefore, a domestic enquiry should be held or the company should adduce evidence in the Labour Court.
Mr. Shetye, however, submitted that on the evidence that was before the Labour Court, the learned Labour Judge was perfectly right in coming to a conclusion that, on the facts and circumstances of the case, there was no unfair labour practice committed by the company. Mr. Shetye took me through the evidence on record to canvass his point.
4. Now, there is no dispute about the legal propositions made by Mr. Shetye and, therefore. I do not think it necessary to refer to all the judgments which Mr. Shetye has referred to and relied upon. Even Dr. Kulkarni does not dispute the legal propositions made by Mr. Shetye. The point, however, is whether the evidence on record shows that the company indulged in unfair labour practice covered by item 1 of Schedule IV of the Act. On a careful consideration of the record produced before me. I am more than convinced that the company did indulge in unfair labour practice covered by item 1(b) of Schedule IV of the Act. Normally, it is not for this Court while exercising the jurisdiction under Articles 226 and 227 of the Constitution to re-appreciate the evidence recorded by the Labour Court but I am obliged to do so in this case because in my opinion the findings of the learned Labour Judge is absolutely perverse in the sense that the same is contrary to the evidence on record. The learned Labour Judge totally misdirected himself in appreciation the evidence. If the evidence is not appreciated by me in this Court there would be total miscarriage of justice and, therefore, I am inclined to look into the evidence that was adduced before the Labour Court.
5. In order to appreciate the evidence on record, it would be worthwhile to mention here that it is a general unfair labour practice on the part of an employer under item 1(b) of Schedule IV of the Act to discharge or dismiss an employee, not in good faith but in the colourable exercise of the employer's right. The evidence here shows that the workman stated on oath that his sixteen years of service record was unblemished and that he was a member of Larsen and Toubro Employees' Union which union was not liked by the company. He further stated that the other union working in the company was Bhartiya Kamgar Sena with whom the management of the company had good relations. He then stated that when his services were terminated, he was the Joint Secretary of the Larsen and Toubro Employees' Union which fact was known to the company. His evidence further shows that on 10th August 1977 he was assaulted by the members of Bhartiya Kamgar Sena in his department in the presence of the foreman. He had lodged a complaint with regard to that incident to the General Manager but no action was taken by the management. Then on 23rd August 1977 he wrote another letter to the company but even at that time no action was taken by them. He, therefore, stopped going to work form 1st September 1977 for fear of assault and danger to his life. On that day also he had written a letter to the company. The situation in the company was deterioration after 1st September 1977. Further he deposed that the company sent him a letter on 27th September 1977 asking him to resume work but as he was apprehending danger to his life he did not join the duty. On 8th October 1977 when he tried to enter the factory at about 8.00 a.m. along with 200 workmen after informing the police well in advance but they could not succeed in entering the factory as stones and soda water bottles and other weapons were hurled at them. Because of this incident he had to be taken home in a police van. He thereafter deposed that on 23rd November 1977 after informing the police and the General Manager of the company he and about 200 workmen attempted to enter the factory for work but they could not do so as a gang of goondas was standing near the gate. Those persons belonged to the rival union. He, therefore, went to the other gate and entered the Bombay Regional Officer and saw Mr. Chiffer, the foreman of the department, and requested him to give protection. The workers belonging to his union were assaulted between 7.30 a.m. and 11.00 a.m. on that day and some had to be hospitalised. At about 11.30 a.m. some goondas attempted to enter the cabin where he was saved and Police Inspector Irani of Jogeshwari Police Station took him to his residence in the company's car. His evidence again shows that on 16th November 1977, he received a charge-sheet by post and another one on 26th November, 1977. However, no enquiry was held into the charges levelled against him. He alleged that services of about members of his union were terminated by the company but services of only four members belonging to Bhartiya Kamgar Sena were terminated. He also alleged in his evidence that even after the dismissal the company was paying 85% of the wages to the workmen who belonged to Bhartiya Kamgar Sena. Lastly he deposed that after he was discharged he tried to secure employment but in vain and remained unemployed all throughout. The workman was subjected to searching cross-examination but a perusal of the cross-examination does not show that any material worth the name was brought out in the cross-examination to discredit the testimony of the workman. In fact, many of the points made by the workman in the examination-in-chief were not even controverted in the cross-examination.
6. The documentary evidence on the record is in the nature of a letter dated August 10, 1977 addressed by the workman to the General Manager of the company stating that certain workmen were responsible for committing acts of violence on him and other members of his union. By a letter dated August 18, 1977 he again informed the General Manager of continuous attacks on the members of his union. Thereafter on August 23, 1977 he wrote to the General Manager that on that day at about 10.45 a.m. one T. M. Jadhav went to assault him in the dispensary in the presence of one Shahani and threatened to finish him off within eight days. By another letter dated September 1, 1977 he informed the General Manager that it was unsafe to work and discharge his duty peacefully and safely in the company in view of the assaults, intimidation, riots, abuses, threats and forcible collection of money by the member of Bhartiya Kamgar Sena inside the Powai factory premises of the company. By a letter dated September 27, 1977, the Labour Officer on behalf of the company wrote to the workman advising him that it would be in his own interest to report for work with immediate effect. Thereafter, the company served the workman with a charge-sheet dated November 16, 1977 mainly contending that he had remained absent from work from September 1, 1977 without permission. Within five days thereafter on November 21, 1977. He was served with another charge-sheet alleging riotous and disorderly or indecent behaviour on the premises of the establishment, commission of act subversive of good behaviour within the establishment and indiscipline in the establishment and wilful damage to property of the establishment. The workman replied by a letter dated November 23, 1977 to the chargesheets served on him but surprisingly his services were terminated by a letter dated November 26, 1977 informing him as under :
"We hereby briefly inform you that due to your activities in the recent past which have disturbed peaceful working in our company, we have lost confidence in you and we firmly believe that your continuance in our employment is fraught with risk and is in no way in the interest of the smooth running of the company and the maintenance of discipline."
It was this action of the company that was challenged by the workman in the complaint of unfair labour practice filed in the Labour Court. It is important to note that the company adduced evidence whatsoever either oral or documentary in the trial Court.
7. Therefore, reading the oral evidence adduced by the workman and the documents on which both sides relied, in any judgment, the services of the workman were terminated by the company 'not in good faith but in the colourable exercise of the employer's right'. It is pertinent to note here that the workman was served with two charge-sheets making definite allegations against him and nothing prevented the company from holding a domestic enquiry against him. The finding of the learned Labour Judge that no useful purpose would have been served by holding a domestic enquiry because the workman was not able to enter the premises of the company is absolutely wrong in the sense that just because a workman who fears danger to his life is not able to enter the premises of the factory he is not disentitled to the benefit of a domestic enquiry. At any rate, if the company had any problem in not being able to conduct the domestic enquiry for whatever reasons, it was incumbent upon them to have led sufficient and satisfactory evidence in the Labour Court to prove the charges levelled against the workman. For the reason best known to the company they failed in discharging this legal obligation. I am in full agreement with the submission of Dr. Kulkarni that instead of holding a domestic enquiry against the workman and/or adducing evidence in the Labour Court about the charges levelled against him, the company terminated his services on a specious ground that they had lost confidence in him. As a matter of fact, from the evidence that is discussed above, it is crystal clear that there was no reason whatsoever for the company to have lost confidence in the workman. On the contrary the workman deserved all the protection which was denied to him by his employer. He was making grievances time and again that his life was in danger and he was unable to attend duties on account of the violence that was being committed on him and the members belonging to his union. Instead of looking into such grievances, it was unreasonable and mala fide on the part of the company to have come out with an excuse that they lost confidence in the workman for his so-called activities of the recent past. As has been fairly conceded by Mr. Shetye, termination of services on the ground of loss of confidence is stigmatic which called for holding of a domestic enquiry or in any case leading evidence in the Labour Court. Therefore, from what the company did, there is absolutely no doubt in my mind that the company terminated the services of the workman mala fide and definitely not in good faith but in the colourable exercise of their right to terminate the services. This amounts to unfair labour practice covered by item 1(b) of Schedule IV of the Act. The learned Labour Judge was, therefore, totally wrong in coming to a conclusion that the company had indulged in no unfair labour practice. His impugned judgment and order, therefore, deserve to be quashed and set aside.
8. Before I finally do that, let it be recorded here that the company adduced absolutely no evidence that the workman was gainfully employed elsewhere or was occupied with some other vocation to earn money. On the other hand, the workman gave evidence in the Labour Court that he made efforts to secure alternative employment but in vain and remained unemployed all throughout. In such a situation, the workman is also entitled to full back wages with continuity of service.
9. In this view of the matter, I quash and set aside the impugned judgment and order passed by the second-respondent Labour Judge. It is hereby declared that the company indulged in unfair labour practice covered by item 1(b) of Schedule IV of the Act whereby they discharged or dismissed the workman, not in good faith in the colourable exercise of the employer's right. The company is hereby ordered and directed to desist and cease from further committing this unfair labour practice and ordered to reinstate the petitioner-workman forthwith in his original position with continuity of service and pay him full back wages for the period of his forced unemployment. The amount of back wages will be paid to the workman within 15 days from today failing which the company shall be liable to pay interest at the rate of 15% on the amount due to the workman on account of full back wages.
10. Rule is accordingly made absolute with cost of Rs. 2,000.