Judgment 1 wp4801.11.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4801 OF 2011
M/s. Ankur Seeds P. Ltd.,
27, New Cotton Market Layout,
Opp. Bus Stand, Nagpur,
through its Personal Officer.
.... PETITIONER.
// VERSUS //
1. Presiding Officer,
Labour Court, Oppo. Indira Market,
Wardha.
2. Damodar Kohale,
C/o. Shri Nale Saheb,
Jalaram Nagar, Galli No.1,
Near Deepak Dalan Kendra,
Amravati.
.... RESPONDENTS
.
___________________________________________________________________
Shri J.L.Bhoot, Advocate for Petitioner.
Shri A.A.Madiwale, A.G.P. for Respondent No.1.
Shri N.R.Saboo, Advocate for Respondent No.2.
___________________________________________________________________
CORAM : S.C.GUPTE, J.
DATED : SEPTEMBER 14, 2017.
ORAL JUDGMENT :
1. Heard learned counsel for the parties.
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2. The challenge in the present petition is to an order passed by Labour Court at Wardha in a reference under the Industrial Disputes Act, 1947. The reference concerns termination of employment of respondent No.2 after an enquiry into his alleged misconduct by the petitioner. The Labour Court, by its initial award dated 09/05/2007, held that the enquiry was not fair and proper or in compliance of the principles of natural justice and that the findings of the enquiry officer were perverse. This part of the order has not been challenged before this Court. The Labour Court, thereafter, permitted the petitioner-employer to prove misconduct by leading evidence in Court. After the evidence was led, the Labour Court held the misconduct to be proved but that the punishment of dismissal awarded to respondent No.2 was shockingly disproportionate. The punishment of dismissal was, accordingly, set aside and the petitioner- employer was directed to stop three increments of respondent No.2 as and by way of punishment for proven misconduct and directed respondent No.2 to be reinstated in service without back wages. This order is challenged by the petitioner in the present writ petition.
3. The record of the case bares out that though for the two periods respondent No.2 was absent, that is to say, between 30 th November, 1998 and 10th December, 1998 and 22 nd December, 1998 to 2 nd January, 1999 for ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 00:49:08 ::: Judgment 3 wp4801.11.odt illness, it was not a serious illness. The Court held that it was proved that he availed of the leave without prior intimation of the petitioner-employer. The Labour Court held that it was also proved that the petitioner could not unload the paddy seeds at the godown at Kisan Nagar because of the unauthorized absence of respondent No.2 and that this act of respondent No.2 caused inconvenience to the petitioner. The Court held that though award of absenteeism without prior permission stands proved, the quantum of punishment, namely, dismissal from service, was grossly disproportionate to the misconduct In the first place, Labour Court found that the absence was not very long and was intermittent and that in the premises, lesser punishment, i.e. stoppage of 3 increments permanently and denial of back wages, would serve the ends of justice.
4. There are two serious infirmities in the impugned order of the Labour Court. In the first place, the complaint was not simply of unauthorized absence, but of leaving the place of duty unauthorizedly, thereby causing damages to the employer. Respondent No.2 was appointed and working as a watchman at the Kisan Nagar godown of the petitioner. He was put in charge of watch and guard of the godown. Here is not a case of any ordinary employee being absent without intimation, but a person who was on such watch and guard duty leaving the place unauthorisedly and without intimation and resulting into the place being left unattended without anyone taking a charge thereof. Even after his unauthorised absence between ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 00:49:08 ::: Judgment 4 wp4801.11.odt 22nd December, 1998 and 2nd January, 1999, when someone from the office of the petitioner went to take charge at Kisan Nagar on 4 th January, 1999, respondent No.2 was not present. As a result of these acts of unauthorised absence, the work of the petitioner was adversely affected. This aspect of the matter appears to have been completely lost sight of by the Labour Court.
5. Secondly, the impugned order of termination was passed not merely on account of the proved charges, but also in the light of the past conduct of respondent No.2. Such past conduct admittedly includes submission by respondent No.2 of forged bills of electricity charges by making alterations in the bills. This lapse was unconditionally admitted by respondent No.2, assuring the petitioner not to repeat such misconduct in future. This aspect of past conduct (which was anyway not a matter of dispute), which weighed with the petitioner whilst dismissing the employee, is completely overlooked by the Labour Court whilst reducing the punishment.
6. The approach of the Labour Court as well as the conclusion arrived at by it in the impugned order on the basis of such approach, is, thus, not in keeping with the established principles of law on the point. In the premises, the matter calls for a remand.
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Judgment 5 wp4801.11.odt
7. Rule is, accordingly, made absolute by quashing and setting aside the impugned order and remanding the matter to the Labour Court for a fresh decision in accordance with law, after taking into account the matters referred to above.
JUDGE RRaut..
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