Judgment 1 wp840.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 840 OF 2014
Rajendra Singh S/o. Lalan Singh Chouhan,
Aged about 64 years, Occupation : Nil,
Resident of Qtr. No.7/3, Bajaj Colony,
Tahsil & Tqluqa : Saoner,
DISTRICT : NAGPUR.
.... PETITIONER.
// VERSUS //
1. Western Coal Fields Limited,
(A Government of India Undertaking)
Saoner Sub Area, Saoner,
DISTRICT : NAGPUR
Through its Sub-Area Manager.
2. The Central Government Industrial
Tribunal-Cum-Labour Court, Nagpur,
1st Floor, N.S. Building, Civil Lines,
NAGPUR - 440 001.
Through its Presiding Officer.
.... RESPONDENTS
.
___________________________________________________________________
Shri S. Zia Quazi, Advocate for Petitioner.
Shri A.S.Mehadia, Advocate for Respondent Nos.1 and 2.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : APRIL 19, 2017.
CAW NO. 1163/2016.
Considering the grounds stated in the application, specially that the petitioner is more than 67 years of age, the prayer for early hearing is granted.
The Civil Application is allowed.
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Judgment 2 wp840.14.odt ORAL JUDGMENT : 1. Heard.
2. The petitioner/ employee has challenged the award passed by the Central Government Industrial Tribunal answering the reference against him and holding that the action of the management in dismissing him from service is legal and justified.
3. The petitioner joined as Electrical Fitter Category-IV in the employment of the respondent in 1971. From 1995 to 1997 the petitioner was President of the Coal Mines Engineering Workers Association, a registered Trade Union. On 27th July, 1996 the employer issued a notice calling upon 71 employees to report on duty on 28th July, 1996 which was Sunday and weekly off for the employees. The petitioner's name was not amongst the 71 employees who were called upon to report on duty on 28th July, 1996.
On 28th July, 1996 the respondent-employer issued chargesheet to the petitioner with two charges :
i) The act of misconduct as per Clause 26.39 : Abetment of act of misconduct.
ii) Misconduct as per Clause 26.40 : Deliberately spreading false ::: Uploaded on - 24/04/2017 ::: Downloaded on - 25/04/2017 23:56:52 ::: Judgment 3 wp840.14.odt information/ rumour with a view to bringing about disruption in company's work.
After conducting enquiry, the report was submitted by the Enquiry Officer to the Disciplinary Authority on 11th September, 1996. Then after completing the required formalities of sending the copy of enquiry report and issuing show cause notice and receiving explanation of the employee, the respondent-employer took a decision on 14th December, 1998 and dismissed the petitioner. The petitioner raised a dispute in the matter on which the reference came to be made to the Industrial Tribunal.
4. The submission on behalf of the petitioner is that as far as the charge of misconduct as per Clause 26.39 is concerned, it cannot be invoked against the petitioner as the respondent-employer has not punished any other employee for any misconduct and therefore, there cannot be abetment of any act of misconduct.
As far as second charge is concerned, according to the petitioner, it is vague and therefore, the punishment cannot be inflicted on the basis of that charge.
5. The learned advocate for the respondent-employer has submitted that the enquiry was conducted against 71 employees whom the ::: Uploaded on - 24/04/2017 ::: Downloaded on - 25/04/2017 23:56:52 ::: Judgment 4 wp840.14.odt petitioner incited and some of those employees prayed for grant of pardon, some of the employees were given warning and in case of some employees it was found that they could not attend duty on 28th July, 1996 because of some genuine difficulty. It is submitted that it cannot be said that action is not taken against 71 employees and charge for misconduct as per Clause 26.39 was wrongly framed against the petitioner. It is submitted that the Enquiry Officer conducted the enquiry and found that the petitioner is guilty as both the charges are proved against him and the Tribunal has also concurred with the findings of the Enquiry Officer and it is not open for this Court to re-appreciate the evidence on record. To support the submission reliance is placed on the judgment given in the case of Govt. of A.P. vs. Mohd. Nasrullah Khan, reported in 2006(2) SCC 373.
It is argued that it was open to the employer to accept apology of the erring employees and pardon them and only because it is done it cannot be said that the petitioner is discriminated by dismissing him from service. To support the submission reliance is placed on the judgment given in the case of M/s. Obette Pvt. Ltd. vs. Mohd. Shafiq Khan, reported in AIR 2005 SC 3510.
It is submitted that the work of maintenance on holiday or weekly off was a regular feature and the petitioner in his capacity as President of the Trade Union incited 71 employees who were called upon to ::: Uploaded on - 24/04/2017 ::: Downloaded on - 25/04/2017 23:56:52 ::: Judgment 5 wp840.14.odt report on duty on 28th July, 1996 (Sunday) because of which those 71 employees had not attended their duties and consequently the maintenance work could not be done on Sunday and it was required to be done on the working day which ultimately resulted in disruption of work. It is argued that such illegal absenteesim which disrupted the work is taken seriously and serious punishment for such misconduct is approved/ maintained by this Court in the following judgments :
i) Judgment given in the case of B.A.N.S.K.C. Parikh General Hospital Vs. Bombay Labour Union, reported in 2001 (89) FLR 790,
ii) Judgment given in the case of Force Motors Ltd. Akurdi, Pune Vs. S.S.Tungar, reported in 2008 (117) FLR 606,
iii) Judgment given in the case of Prabhakar Engineers Vs. Ramchandra, reported in 2003 (2) Mh.L.J. 823.
It is submitted that the impugned award is passed on proper appreciation of the evidence and legal position and the petitioner has not made out any case which necessitates interference by this Court in the extraordinary jurisdiction.
6. In reply, the advocate for the petitioner has submitted that the Disciplinary Authority has not considered the past service record of the ::: Uploaded on - 24/04/2017 ::: Downloaded on - 25/04/2017 23:56:52 ::: Judgment 6 wp840.14.odt petitioner which is unblemished and the Tribunal has also not applied its mind on this aspect and therefore, the decision of the management and the impugned award are unsustainable. To support the submission, the learned advocate for the petitioner has relied on the judgment given by the Division Bench of this Court in the case of Mill Manager, Savatram Ramprasad Mills Vs. Industrial Court, Nagpur, reported in 1987 (1) Bom. C.R. 517.
7. There is no dispute that the employer had issued notice on 27 th July, 1996, calling upon 71 employees to report on duty on 28 th July, 1996 (Sunday/ weekly off). It is undisputed that the petitioner was President of the registered Trade Union at that time. There is no dispute that the charge- sheet was issued to those 71 employees as they had not reported for duty on 28th July, 1996. According to the petitioner, those 71 employees submitted their explanation and tendered apology which was accepted by the employer and no further enquiry was conducted. According to the employer the enquiry was conducted against those 71 employees also and apology of some employees was accepted, in case of some employees it was found that there was genuine difficulty which prevented them from reporting on 28 th July 1996 and in case of some employees the explanation given for absence was found to be genuine and in case of some employees warning was given.
Be that as it may, fact remains that any adverse action was not taken against any one of those 71 employees. The employer has not placed ::: Uploaded on - 24/04/2017 ::: Downloaded on - 25/04/2017 23:56:52 ::: Judgment 7 wp840.14.odt anything on record to show that the disciplinary authority found that any of those 71 employees was liable for punishment for misconduct. Though the employer has tried to make out a case, that charge against some of the 71 employees was proved and they were let-off on pardon or warning, nothing is pointed out to show the finding of misconduct by the competent authority. If it is so, in my view, the charge of abetment of misconduct as per clause 26.39 cannot be said to be proved against the petitioner.
8. As far as second charge is concerned, the charge-sheet dated 28th July, 1996 which was given to the petitioner only reproduces clause 26.40 without specifying and giving details about the alleged false information or false rumour because of which the work of the respondent/ employer was disrupted. It is well settled that punishment cannot be inflicted on the basis of the vague charge.
9. Another relevant aspect is that neither the disciplinary Authority nor the Industrial Tribunal has adverted to the point of past service record of the petitioner though the most severe punishment is inflicted on him.
10. In view of the above, I find that the impugned award is unsustainable so also the decision of the respondent/ employer to dismiss the petitioner from service.
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Judgment 8 wp840.14.odt
Hence, the following order :
i) The impugned award is set aside.
ii) It is held that the action of the respondent-employer in
dismissing the petitioner from service is illegal and unjustified.
iii) The order issued by the respondent-employer on 14th December, 1998 dismissing the petitioner from service is quashed.
iv) As the petitioner has surpassed the age of superannuation, the respondent-employer shall make available to the petitioner all the benefits and emoluments treating that the petitioner has retired on attaining age of superannuation.
v) The arrears of back wages shall be paid within three months, failing which the respondent/ employer shall pay interest on the amount of arrears of back wages @ 9% per annum, the interest being chargeable from 15th December, 1998 till the amount is paid to the petitioner.
vi) As far as the other benefits and emoluments are concerned, the same shall be made available to the petitioner within three months.
Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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