Ghatge Patil Industries Limited vs Dattaraya Gangaram Lokhande And ...
2001 Latest Caselaw 16 Bom

JUDGMENT

F.I. Rebello, J.

1. Rule. Respondents waive service. Taken up on Board for final hearing and heard forthwith.

2. The Petitioner, by the present Petition, impugns the Award dated June 6, 2000 passed by the Labour Court at Kolhapur in Reference (ID) Nos. 26 and 27 of 1983. By the said Award the Labour Court has directed the Petitioner herein in lieu of reinstatement to pay compensation equal to 40 months' wages to each of the workmen with continuity of service and 60% of back-wages and other consequential benefits, till the date of payment of compensation with costs of Rs. 1,000/- to each workman.

3. The respondents herein were charge sheeted for alleged misconduct. An Enquiry was conducted. The Enquiry Officer gave his findings. The Competent Authority concurred with the findings and thereafter were pleased to dismiss the Respondents from their services. It is against this, that an Industrial Dispute was raised and a reference made to the Labour Court. The Labour Court held that the charge of misconduct was proved. The Labour Court, however, held that there was no material before it to arrive at the conclusion that it was the Respondents herein who had abetted and instigated other workers to resort to go-slow and gherao. The Labour Court further observed that in respect of six other workers, who were similarly situated like the Respondents herein, a compromise had been arrived at between the Petitioner and the said workers. It found that there were altogether 29 workers who had resorted to go slow and/or gherao, however, no action has been taken against them except for the eight chargesheeted workers. Considering all these aspects the Labour Court came to the conclusion that the punishment awarded was disproportionate to the charges proved and established and consequently the order.

4. At the hearing of the Petition, on behalf of the Petitioner, their learned counsel contends that the Labour Court after having come to the conclusion that the misconduct against the Respondents was proved, ought not to have interfered with the punishment imposed by the Petitioner. It is further contended that merely because the petitioner arrived at the settlement with six other workers, that by itself could not have been a reason not to uphold the action of dismissal. It is further contended that the act of gherao and go-slow were serious misconduct and in these circumstances the Court ought not to have interfered with the punishment imposed by the Petitioner. Reliance is placed on the Judgment in the case of Bharat Sugar Mills Ltd. v. Jai Singh and Ors., 1961-II-LLJ-644(SC) to contend that gherao and go-slow are serious forms of misconduct. In the case of J. K. Iron and Steel Company Ltd. v. Iron and Steel Mazdoor Union and Ors., , to contend that if the Labour Court wanted to go into the issue of serious misconduct it had to frame such an issue. In this case not having done so, the Petitioner has been denied an opportunity of leading evidence and consequently also the award is liable to be set aside. Reliance is placed on the Judgment in the case of Anil Kumar Puri v. Presiding Officer, Labour Court, Chandigarh and Anr. to contend that an employer was not at fault caused by delay in answering the reference and at the highest what could have been awarded is 50% back wages as has been done by the Apex Court in that case.

5. On the other hand on behalf of the Respondents, their learned counsel contends that once the Labour Court applied the correct principles, it is not for this Court to interfere with the Award. The Petitioner has been unable to show any perversity in the findings of the Labour Court. It is pointed out further, that apart from the Respondents there were other workers who were charge sheeted for similar misconduct. The Petitioner settled the matter with the said other workers who were also found guilty. Also other workers who participated in the purported gherao and go-slow were not chargesheeted. In these circumstances it is contended that the punishment of dismissal would be disproportionate and arbitrary.

6. At the outset it may be noted that before the Enquiry Officer itself, the Petitioner proceeded to lead evidence on the footing that charges levelled against eight delinquents were identical, similar and connected and in pursuance of the same transaction and as such the evidence should be recorded jointly. One gets this from the Enquiry Report which reads as under:

"On scrutiny of the enquiry proceedings, I found that at the outset, of the enquiry the representative of the company, Shri Gujar, requested and proposed to the Enquiry Officer that since the charges levelled against the delinquent workmen are identical, similar and connected in pursuance of the same transaction the evidence so adduced by either parties should be recorded jointly, accordingly Shri Haladkar appreciated and agreed to the proposal and request put forth by Shri. Gujar. The same has been recorded by my learned predecessor Shri. N.K. Aher (on page No. 2.)."

It is, therefore, clear that the Petitioners themselves proceeded before the Enquiry Officer that the charges were same and similar as against the said seven charge sheeted workmen out of the eight. The Labour Court thereafter gave a finding that the enquiry is fair and proper. That has not been challenged. The second issue framed was whether the finding of Enquiry Officer was justified. The Labour Court gave a finding that they are partly justified. The Labour Court after examining the evidence has given a finding that it is not possible to arrive at the conclusion whether the eight employees who were charge sheeted, had instigated all other workmen to adopt go-slow and resort to strike, It is further found that the evidence was not clear and the allegations were vague. Considering that, in so far as that aspect of the misconduct of investigation is concerned, the Labour Court found that as not proved. This would amount to pure appreciation of evidence. Nothing has been brought to my attention to show that the said findings are perverse and not based on the record. I have gone through the material on record as also the findings of the Enquiry Officer and the conclusion arrived at by the Labour Court. I do not think that this would be a fit case where this Court should exercise its extra ordinary jurisdiction and intervene with the said finding of fact.

7. A serious contention was raised that no issue was framed regarding discrimination. In fact Issue No. 3 deals with victimisation and discrimination. Parties therefore were aware of what was in issue and had opportunity to lead evidence on that count. The Labour Court again has dealt with the contention of the Petitioner I that though there were 29 employees, the eight employees alone were singled out as they were persons primarily responsible and as such they were issued charge-sheet. The Labour Court has come to the conclusion that apart from the submissions, there is no evidence on record nor any witness was examined to establish that the eight charge sheeted workers were only mainly responsible for the said act of misconduct. The Court noted that in the case of complaint filed for unfair labour practice, the relief was sought against all employees. It may also be noted that from the material on record and the findings of the Enquiry Officer, the Respondents along with eight workmen which included the two Respondents were working in the Machine Department. According to the evidence before the Enquiry Officer there was go-slow in the Foundry Department which was severe. Considering that, the findings by the Labour Court that out of the 29 employees of Machine Department eight employees were singled out cannot be faulted with. Considering the above to my mind as the issue was specifically framed, the Judgment in the case of J.K. Iron and Steel Company Ltd. (supra) would be of no consequences.

8. We then come to the issue as to whether the Labour Court was right in holding that the punishment of dismissal was shockingly disproportionate to the alleged misconduct proved. Once the Labour Court came to the conclusion that out of the 29 workers only eight including two Respondents were singled out for charge sheet and subsequent punishment, the conclusion that must follow is that those workers alone were singled out for action and as such the finding that the punishment imposed was disproportionate cannot be faulted. In a case where several workers have indulged in the same misconduct and the employers selectively select only some for punishment and take no action against the others, it is now well settled principle of law that such an action would be arbitrary. If authority is needed, reference, be made to the Judgment of a Division Bench of this Court which has relied on various Judgments of the Apex Court in the case of Oriental Containers Ltd. v. Engineering Workers Association and Ors. 1996-II-LLJ-454 (Bom-DB). To my mind therefore the said order cannot be faulted with even assuming that case of the Petitioner can be accepted, that go-slow and gherao are cases of grave misconduct as all workmen in Machine Department were guilty of the same.

9. That leaves us with the issue as to whether the reliefs granted can be faulted with. It must be borne in mind that the Respondents when they were dismissed from service were in the prime of their life. Eighteen years has elapsed since their dismissal order. It would have been impossible considering the nature of the misconduct alleged for the said Respondents to obtain any alternative employment in any industrial establishment or factory within the Mumbai region. In a case where the Labour Court has come to the conclusion that the Order of reinstatement should not be ordered, the ordinary principle applies, that wages for 3.3 years must be granted. Granting of 40 months wages therefore cannot be faulted with. The only question is whether granting of 60% back wages should be considered as proper and/or should be interfered with. The learned counsel has relied on the Judgment of the Apex Court in the case of Anil Kumar Puri (supra) in support of his submission. To my mind the ratio of that judgment cannot be applied to the facts of the present case. In that case on termination the worker had approached the Central Administrative Tribunal. The matter was pending before the Central Administrative Tribunal for five years, after which the Tribunal held that it had no jurisdiction. The matter thereafter came before the Labour Court who ordered reinstatement but refused back wages. It is workman who went to the Apex Court, contending that the order was arbitrary in as much as back wages were refused. The Apex Court ordered back wages but restricted it to 50% as the Court held that the employer could not be faulted on account of the facts of that case. It must be borne in mind that in that case the only issue was of Section 25-F of the Industrial Disputes Act. In the instant case, the employer held an enquiry and dismissed the workmen from service. Thereafter with six of the dismissed workmen they have arrived at a settlement. Once the Labour Court has come to the conclusion that only eight workmen out of the 29 were singled out, the consequences had to follow that action of the Petitioner was arbitrary. However, considering the facts that misconduct has been proved against the Respondents and that there has been increase in wages, I propose to interfere with the Award of back wages to the extent that instead of 60% back wages, back wages would be restricted to 40% considering the peculiar facts of this case. In the light of that the following order:

ORDER

Petition dismissed. Rule made partly absolute. The finding of the Labour Court of awarding 40 months' wages in lieu of reinstatement is upheld. In so far as awarding of the back wages of 60% is concerned, back wages is reduced to 40%. The Award in so far as continuity of service is concerned is also upheld. Award modified to that extent.

Rule accordingly made partly absolute.

In the circumstances of the case, however, there shall be no order as to costs.

All Authorities concerned to act on the ordinary copy of this order duly authenticated by the P.A.

P.A. to give copy of this order to the parties concerned.