Bombay High Court
Bombay Telephone Canteen ... vs Mahanagar Telephone Nigam Ltd. ... on 7 February, 2002
Equivalent citations: 2002 (95) FLR 1114, (2003) ILLJ 694 Bom
Author: N Mhatre
Bench: N Mhatre
JUDGMENT
Nishita Mhatre, J.
1. Petitioner No. 2 is workman who had joined the services of respondent No. 1 in the departmental canteen at the Andheri Telephone Exchange. The workman was working as a bearer and his duty hours were from 7 a.m. to 5 p.m. with lunch recess from 12.15 p.m. to 1.15 p.m. Leave was not granted to him. The workman was an active member of petitioner No. 1 who represents the canteen employees working in various Telephone Exchanges in Mumbai. It appears that there was a settlement in conciliation whereby it was agreed between the parties that leave was to be granted to five workmen. Accordingly, applications for leave were filed by the workmen. All the five workmen except petitioner No. 2, Ramchandra Moolya, were granted leave and were allowed to join duty. However, the workman was terminated from service after holding an enquiry. The Enquiry Officer held that the workman was guilty of the misconduct alleged against him and, therefore, respondent No. 1 dismissed the workman from service. A dispute was raised on behalf of the workman petitioner No. 1 which was referred for adjudication before the Central Government Industrial Tribunal, Pleadings were filed before the Tribunal and the Tribunal framed the following issues:
"1. Whether this Central Government Industrial Tribunal has jurisdiction to entertain and decide the present reference?
2. Whether in view of the fact that the workman did not file any appeal against the order terminating his services, this Tribunal is not competent to set aside that order?
3. Whether the action of the Management of Andheri Telephone Exchange Canteen in terminating the service of Mr. Ramchandra Moolya, Bearar w.e.f. January 12, 1988 is legal and justified?
4. If not, what relief the workman is entitled to?
5. What Award?"
2. The Tribunal found that it had jurisdiction to entertain the reference and; merely because a departmental (sic) was filed by the workman, it did not oust the jurisdiction of the Tribunal. It held that the action of the Management of Andheri Telephone Exchange Canteen in terminating the services of the workman w.e.f. January 12, 1988 was legal and justified. This conclusion has been reached by the Tribunal on the footing that an enquiry had been held against the workman and that the Enquiry Officer had permitted the workman to cross-examine the witnesses of the Management and had also given the workman an opportunity to defend himself. The Tribunal came to the conclusion that the enquiry held against the workman was legal and justified and, therefore, the dismissal of the workman from service must be confirmed.
3. It is obvious that the Tribunal has not considered the perversity or otherwise of the findings of the Enquiry Officer. The Tribunal has thus failed to exercise the powers vested in it under Section 11-A of the Industrial Disputes Act. The powers of the Tribunal under Section 11-A are wide and discretionary. It can re-appreciate the evidence led before the Enquiry Officer and come to its own conclusions based on this evidence. It has also the jurisdiction to consider whether the punishment awarded to the workman is warranted.
4. In the circumstances of the case, the Award of the Tribunal will have to be set aside and the matter remanded for a fresh hearing. In view of this, the petition is disposed of by the following order:
ORDER
(i) The Award of the Industrial Tribunal is set aside and the reference is remanded.
(ii) The Tribunal shall consider whether the findings of the Enquiry Officer are perverse. In the event, the Tribunal comes to the conclusion that the findings are not perverse, the Tribunal would then consider whether the punishment is shockingly harsh and disproportionate and, therefore, requires to be interfered with under the powers vested in it under Section 11-A of the Industrial Disputes Act.
(iii) In case the Tribunal finds that the findings of the Enquiry Officer are perverse, it shall decide the reference in the light of the provisions of Section 11-A of the Industrial Disputes Act.
(iv) The reference shall be decided by the Tribunal as expeditiously as possible and in any event not later than October 31, 2001.
(v) Rule made absolute with no order as to costs.
5. Parties to act on an ordinary copy of this order duly authenticated by the Court Sheristedar.
