Haldyn Glass Limited vs Maharashtra General Kamgar Union
2004 Latest Caselaw 648 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. Two petitions are before the Court in these proceedings under Article 226 of the Constitution. Both the petitions are directed against an award dated 30th March 2000 of the 6th Labour Court at Mumbai.

2. The petitions, it is common ground, relate to termination of the services of two workmen, Eknath Harishchandra Katkar and Dinanath Sharda Yadav, on a charge of misconduct. Two chargesheets were issued to Eknath Katkar by the employer. The first chargesheet dated 10th January 1984 recited that it is alleged that on 9th January 1984, while he was on duty at about 12.10 p.m., the workman acting in concert with certain other workmen, incited, instigated and abetted the workmen of the Quality Control Department on duty to wilfully slow down their performance of work during normal conditions as also to reject good bottles and pass bad bottles with a view to causing loss of production and wrongful loss of revenue to the employer. This, it is alleged, was to pressurise the employer into conceding the illegal charter of demands raised by the unrecognized Union of Dr. Datta Samant, The Maharashtra General Kamgar Union. It is alleged that as a result of instigation, incitement and abetment, the workmen of the Quality Control Department of the first shift had slowed down the work, had rejected good bottles and passed certain bad bottles causing loss to the Company. It is also alleged that the workmen had instigated the other workmen in the Quality Control Department into shouting slogans, wooing, cat calling and drum beating in order to create commotion on the shop floor during working hours.

3. The second chargesheet dated 19th January 1984 alleges that on 16th January 1984, at about 10.30 a.m. when the Jeep belonging to the employer was proceeding towards Andheri Railway Station to pick up the staff members, the chargesheeted workmen along with several others, pelted stones on the Jeep causing damage to the Jeep and in furtherance thereto, obstructed and prevented the said Jeep coming towards Andheri Station.

3A. Similar chargesheets dated 10th January 1984 and 19th January 1984 were issued to the second workman, Dinanath. In addition, a chargesheet dated 9th February 1984 was issued to Dinanath in which it was alleged that on 8th February 1984, at about 8.20 a.m. when a contract carriage vehicle of the Company was on its way to the factory to drop staff members working in the General Shift, the chargesheeted workmen had, together with others, stopped the Jeep when it reached the Western Express Highway and threatened the driver with dire consequences for plying the contract bus.

4. In these circumstances, the workmen were charged for the misconduct of wilful insubordination and disobedience of the lawful and reasonable orders; wilfully slowing down performance of work; riotous, disorderly and indecent behaviour on the premises of the establishment; dishonesty in connection with the Employer's business and property; wilful damage to work in process or to any property of the establishment; and commission of an act subversive of discipline.

5. One of the workmen, Eknath Katkar responded to the chargesheet dated 10th January 1984 by submitting his reply dated 15th January 1984. Insofar as the second chargesheet dated 19th January 1984 was concerned, there was no reply thereto though according to the employer the registered postal packet has been returned with the communication that it had been refused. According to the employer, details of the convening of the enquiry were communicated to the workmen on 24th February 1984 and the enquiry itself was held on 6th March 1984. The workman stated that he had thereafter, proceeded to his village for a period of two years and that upon his return, he came to know that he had been removed from service. According to the employer, apart from the communication which was addressed to the workman about the holding of the enquiry, there was a press publication dated 2nd March 1984 in the daily newspaper Loksatta.

6. Insofar as the second workman, Dinanath, is concerned, the chargesheet dated 10th January 1984 was replied to on 16th January 1984, The second chargesheet dated 19th January 1984 was according to the employer served by Registered Post and was replied to by the workman. The third chargesheet dated 9th February 1984 was sought to be served, but according to the employer, the registered postal packet was returned as refused. The notice of the enquiry was sought to be served on the employee by a communication dated 24th February 1984 which was followed by a publication in a newspaper on 2nd March 1984. Two brothers of the chargesheeted workmen were also employees of the same management.

7. Neither of the two employees participated in the course of the enquiry proceedings. By its award dated 30th March 1998, the Labour Court held that the enquiry was fair and proper. Thereafter, the Labour Court by its award dated 30th March 2000 came to the conclusion that the findings which had been recorded in the course of the enquiry were not perverse and were based on the evidence that had been adduced. However, the Labour Court interfered with the punishment imposed upon the chargesheeted workmen though the finding of the Labour Court was that the termination was for proved misconduct of riotous and disorderly behaviour and commencement of an illegal strike in the employer's Company. This finding had been arrived at on the basis that though certain other employees had also been chargesheeted and against whom misconduct had been proved, the employer had shown a "soft corner by reinstating them in service". The Labour Court was of the view that the same course of action ought to have been followed in respect of the petitioner-workmen and reinstatement ought to have been granted in their case also.

8. The charges against the workmen in the course of the disciplinary proceedings were of a serious nature. Together with the two workmen who formed the subject matter of these proceedings, 83 workmen were proceeded against by the employer on the same count. Insofar as the chargesheeted workmen are concerned, the Enquiry Officer has in the course of the report, found that these workmen had been identified by the management witnesses as having taken a leading part in the incident and acting in a riotous and disorderly manner. The report of the Enquiry Officer dated 14th March 1984 (Exh. B-2 to Writ Petition 6 of 2001), adverts to the fact that the chargesheeted workmen were identified by M. W. 1, M. W. 2 and M. W. 3 as having engaged in violent activities. Similarly, the report of the Enquiry Officer - in respect of the chargesheet dated 9th February 1984 issued to the workman, Dinanath, (Exh. B-4 to Writ Petition 6 of 2001), adverts to the evidence of Mr. D. M. Shetty who deposed on behalf of the management and identified the workman as having forcibly stopped the staff bus belonging to the employer and having threatened the driver and the occupants of the bus with dire consequences. Counsel appearing on behalf of the employer has also placed on the record, a compilation of the depositions in the course of the hearing which support those findings. In this view of the matter, the finding of the Labour Court that the evidence on the record of the enquiry is sufficient to prove the charge of misconduct cannot be faulted. Both the workmen have been identified in the course of enquiry as having taken a leading part in the acts of riotous and disorderly behaviour which formed the subject matter of the enquiry.

9. Having held that the termination has been effected on account of this misconduct involving riotous and disorderly behaviour, the Labour Court nonetheless interfered with the imposition of the penalty of termination. This is on the sole ground that the employer was alleged to have shown a "soft corner" by reinstating certain other employees. Counsel appearing on behalf of the employer has urged, and in my view, with justification, that the evidence which has been adduced before the Labour Court by the two workmen did not establish any case of discrimination. In order to sustain the charge that the employer had acted in a discriminatory manner in initiating or pursuing the disciplinary proceedings, a cogent case to sustain the allegation must be established on evidence. In the present case, in paragraph 5 of the Statement of Claim, the Union submitted that out of 83 workmen who had been chargesheeted, 10 workmen had been taken in employment and 73 employees who were members of the Union had been kept out. It was stated on behalf of the employer that 8 workmen out of 64 described in the order of reference had settled their dues in full and final settlement of their claim. According to the employer those workmen who had executed an undertaking of observing discipline and rendering normal work, were allowed to report for work, but those who had not done so, were proceeded against. From the report of the Enquiry Officer, Counsel appearing on behalf of the employer has also drawn the attention of the Court to the statement made during the course of the enquiry on behalf of the management by the Quality Control Manager of the Company (B. S. Tantri) that he had reported that as many as 23 workmen had indulged in an illegal act, but three workmen who had submitted an apology in writing and resumed duties after executing good conduct bonds, were allowed to continue in service. In the present case, the Labour Court had no material to sustain the plea that there had been any discriminatory action on the part of the employer. There has been no evidence to establish the stage at which the employer had dropped the proceedings against certain employees or whether the case of those employees was akin to the case of the two chargesheeted workmen. In the circumstances, Counsel appearing on behalf of the employer has relied upon a decision of a Learned Single Judge of this Court, Mr. Justice B. N. Srikrishna, (as the Learned Judge then was) in Rajendra Manikrao Bonde v. Tata Engineering and Locomotive Co. Ltd., 1998 I CLR 529. That was also a case where an order of dismissal was passed against a workman on the ground of misconduct. It was alleged before the Court inter alia that the workman had been discriminated against. The Learned Judge held that there was hardly any material placed on the record of the Labour Court to justify such a serious charge of discrimination. There was no material on record to show the comparative role played by the other workmen. The evidence before the Enquiry Officer showed that the workman there, was one of the workmen taking a leading part in the incitement Hence, it was held to be sufficient to take serious action against such a workman and there could hardly be any scope for alleging discrimination. In the present case also, after perusing the record, it is apparent that there was no factual basis to sustain the charge of discrimination.

10. Once the finding of misconduct has been established and the Court has come to the conclusion that there was no factual basis to sustain the plea of discrimination, the order of reinstatement with 25% backwages must be quashed and set aside. There is no basis in the contention urged on behalf of the workmen that the punishment is disproportionate. The charge which has been found to be established against the workmen is a serious charge of misconduct. The order of termination, in the circumstances, does not warrant any interference and ought not to have been interfered with by the Labour Court.

11. Counsel appearing on behalf of the workmen has submitted that the chargesheet which was issued to the workmen was vague and that there was no independent witness to prove the allegation of the misconduct. It is not possible to accept the contention that the chargesheet was vague. The chargesheets refer to specific instances of misconduct involving the business and property of the employer. In a case such as the present, it would be impossible to get independent witnesses since most of those who would be aware of the event which had transpired, would either be co-workmen or members of the staff of the employer.

12. In these circumstances, I am of the view that the Writ Petition which has been filed on behalf of the employer will have to be allowed and the petition filed by the Union will have to be rejected.

13. Writ Petition No. 2416 of 2000 is allowed and the award of the Labour Court dated 30th March 2000 is quashed and set aside. Writ Petition No. 6 of 2001 shall stand rejected. In the circumstances of the case, there shall be no order as to costs.