Shri Pradhan K. Bhanushali vs Ceat Tyres Of India Ltd. And Ors.
2002 Latest Caselaw 211 Bom

JUDGMENT

Nishita Mhatre, J.

1. This is an unfortunate case where the Petitioner has been penalised due to his inability to perform his work on account of an injury suffered by him during the course of his employment with Respondent No. 1. The Petitioner has been dismissed from service on account of an alleged go-slow in work and this action of the Respondent No. 1 was upheld by the Labour Court. It is this Award of the Labour Court which has been challenged by the Petitioner.

2. A few facts of the case giving rise to this petition are as follows:

In the year 1969, the Petitioner joined the services as a casual workman in the category of 'Helper'. He was confirmed in his service thereafter on 2.2.1970. A strike was called in the same year in the establishment of Respondent No. 1 However, the Petitioner continued to report for duty on the assurance being given by Respondent No. 1 that all loyal workmen would be protected when they reported for work. However, this assurance was belied and the Petitioner was grievously assaulted by the striking workers due to which he suffered partial permanent disablement of his legs. On account of this, the Petitioner was not able to work in the same fashion as he did prior to his sustaining an injury. Another job was provided to the Petitioner as Band-Cutter in the Gum-stripping Department. This did not entail much use of his legs and, therefore, the Petitioner was able to carry out his work without any difficulty using his arms. Since the Petitioner was provided alternate work because of his injury he did not file any claim for compensation against Respondent No. 1 under Workmen's Compensation Act, though he was entitled to do so.

3. In 1977, the Petitioner was directed to work in the Band wrapping and Racking section which required a greater use of his legs. The Petitioner requested Respondent No. 1 to continue him in the Gum-stripping Section as his injury did not permit him to work efficiently with his legs. However, this plea of the Petitioner fell on deaf ears and a show-cause notice was issued to him on 17.1.1978. The allegation contained in the notice was that the Petitioner had given a lower production. Despite the Petitioner's explanation, he was suspended for lour days on 18.5.1978. Soon thereafter on 27.5.1978, he was charge-sheeted again under Clause 24(c) of the Model Standing Orders. Departmental enquiry was held against the Petitioner. During the course of the enquiry, the Forman, on the basis of whose report charge-sheet was framed, was not examined but the management representative one Pinge examined himself and produced this report. The Petitioner was found guilty of the misconduct alleged on the basis of which Disciplinary Authority issued notice to the Petitioner directing him to show cause regarding the punishment proposed to be imposed on him. Despite the Petitioner's request for the Enquiry Officer's report and his findings, these documents were not furnished to the Petitioner and he was ultimately dismissed from service on 20.11.1978.

4. The Petitioner, therefore, raised demand for reinstatement with continuity of service and full backwages on 2.6.1979. The dispute was referred for adjudication before the Labour Court. In his statement of claim, the Petitioner has stated that after his injury in 1970, he was continuously working in the Gum-stripping Department till June, 1977 during which period, Respondent No. 1 had no grievance about his work. It was only when he was transferred to Band Wrapping and Racking Section that he was unable to perform his work efficiently due to his injury. He had also contended that the enquiry held against him was not fair and proper and the findings of the Enquiry Officer were perverse. On this basis, he claimed reinstatement with continuity of service and full backwages.

5. In the written statement, Respondent No. 1 admitted that lighter work was given to the Petitioner on his representation and as a special case due to the injury suffered by him during the course of his employment. Evidence of Pinge, who was the management representative, was led on behalf of Respondent No. 1 before the Labour Court as the Enquiry Officer had expired. In his cross-examination, he had admitted that he did not remember whether the charge-sheet was produced in the enquiry nor did he remember the name of the Foreman on the strength of whose report, he had given his report so that the chargesheet would be framed, He had also admitted that the Foreman was not examined in the enquiry nor was his report produced before the Enquiry Officer. He had also admitted that the wrapping of bags was the only duty of the Petitioner. Further, in his cross-examination, he has admitted that there is no record of loss of production. None of the operators whose speed was allegedly reduced due to the inefficiency of the Petitioner were examined before the Enquiry Officer or Labour Court. This witness has claimed that despite the Petitioner not having any grievance or demand against Respondent No. 1, he resorted to 'go-slow'.

6. The Petitioner workman on the other hand, had stated that the. enquiry was not adjourned on one occasion when his representative was not present and that the x-ray of his legs was not taken on record by the Enquiry Officer. By Award Part I, the Labour Court held that the enquiry was fair and proper and was held in accordance with law and principles of natural justice. The Labour Court took the view that the workman was not able to substantiate his grievance about the enquiry being unfair and improper. The Labour Court has observed that the report of the Enquiry Officer was well reasoned. However, the Labour Court held that the Petitioner was guilty of allegations made against him on account of the workman not being able to give better production. It was observed that the very fact that the x-ray was sought to be produced by the Petitioner indicated that he was unable to give better production and, therefore, although the findings and the report of the Enquiry Officer were not satisfactory, according to the Labour Court, they could not be called perverse.

7. By Award Part II, the Labour Court held that the misconduct of 'go-slow' is a misconduct of a very insidious nature and was required to be dealt with firmly and, therefore, declined to reduce the punishment and confirmed the order of dismissal by rejecting the Reference.

8. The learned Advocates for the Petitioner submits that the enquiry held against the Petitioner cannot be said to be held in accordance with the principles of natural justice. She submits with great vehemence that going by the evidence on record and the Award of the Labour Court, the enquiry may have been held in a fair manner, procedurally. However, she takes great exception to the findings of the Labour Court that the enquiry was not perverse. She submits that the Foreman, on whose report the entire charge-sheet and allegations against the Petitioner have been made, has not been examined at all nor has his report been produced either before the Enquiry Officer or before the Labour Court. She justifiably submits that the Petitioner cannot be held to be guilty of misconduct without Respondent No. 1 actually proving its case. The learned Advocate submits that the Labour Court has erred in assuming that the Petitioner had committed the misconduct of 'go-slow' merely because he was unable to carry out the work in the Band Wrapping Section. She submits that when Respondent No. 1 had admitted that no production records were maintained or produced before the Enquiry Officer, the Petitioner should not have been held to be guilty of the misconduct. Moreover, she submits that once the findings of the Enquiry Officer are held to be perverse, the question of punishment would not arise.

9. The Labour Court has shown total non-application of mind by holding that the findings against the Petitioner were not perverse. The Labour Court has applied a different yard stick for evaluating the evidence of the Petitioner and that of Respondent No. 1. The Labour Court has observed that the Petitioner was evasive in his cross-examination because after a period of seven years when he was examined in Court, he could not remember whether the Enquiry Officer inquired from him whether he understood the charges levelled against him. However, when Pinge, the witness for Respondents, stated that he was unable to state the name of the Foreman who had reported the go-slow, the Labour Court chose to ignore this fact. Although conscious of the fact that the Foreman was not examined before the Enquiry Officer and the fact that his report was not produced, the Labour Court has held that the Petitioner was guilty of the misconduct. Moreover, as regards the lack of records regarding loss of production, the Labour Court has not given any thought to this issue. The Labour Court was, it appears, weighed down by the fact that the Petitioner produced the x-ray demonstrating that he was seriously injured and that he was, therefore, not able to carry out the work efficiently in the Band Wrapping Section. It was on this basis, the Labour Court held Petitioner guilty of misconduct without any reference to any production norms or the reports allegedly indicating a goaaaaaaaaa-slow by the Petitioner.

10. The Apex Court in the case of Bank of India v. T.S. Kelawala and Ors. 1990 (II) L.L.J. 39 : 1990 (I) C.L.R. 748 : 1990 (60) F.L.R. 898 : 1990 (77) F.J.R. 95 (SC) : 1990 L.L.R. 313 (SC), had held that where the factum of go-slow and/or the extent of the loss of production on account of it, is disputed, there should be a proper inquiry on charges which furnish particulars of the go-slow and the loss of production on that account. This requirement has not been considered by the Labour Court while confirming the findings of the Enquiry Officer. There is not even an iota of evidence on record to show that the workman had slowed down the process of work and that, therefore, he was guilty of the alleged misconduct.

11. In the instant case, none of the facts leading to the conclusion that the Petitioner had indulged in a gross misconduct have been brought on record. Admittedly, no records were produced before the Enquiry Officer, the Foreman was not examined before the Enquiry Officer nor was his report showing a short fall in production produced. The enquiry must be set aside as the findings are perverse.

12. In the present case, no permission has been sought for leading any further evidence in the event the Labour Court came to the conclusion that the enquiry is not held in accordance with the rules of natural justice and fair play. In view of this, Award Part II will have to be considered. The misconduct is not proved, therefore, the Petitioner cannot be denied reinstatement. The Labour Court decided that there was no impediment in the way of the Petitioner being able to carry out the work in the Band wrapping Section because he had observed the Petitioner walking while attending Court. Merely because the Petitioner was able to walk properly to Court did not mean that he was able to carry out the work in the Band Wrapping Section. Without considering the medical evidence, it was improper on the part of the Labour Court to decide that the Petitioner could have worked in the Band Wrapping Section without any strain on his injured leg. Therefore, this finding of the Labour Court will have to be set aside. There is nothing on record to show as to why the Petitioner should not be paid full backwages. Both the Awards of the Labour will have to be set aside. The Petitioner is entitled to reinstatement with continuity of service and full backwages.

13. In the circumstances of the case, Rule made absolute with costs.

14. Writ petition disposed of accordingly.