Bombay High Court

M/S.Goregaon Petrol Supply Co.& ... vs State Of Maharashtra & Ors on 8 December, 2009

Bench: Dr. D.Y. Chandrachud

                                            1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                    
                                       O. O.C. J.




                                                            
                    WRIT PETITION (LD) NO.2152  OF 2009




                                                           
    M/s.Goregaon Petrol Supply Co.& Anr.             ...Petitioners.
              Versus
    State of Maharashtra & Ors.                      ...Respondents.
                        .......




                                                
    Mr. Ashish Kamath i/b. Mr.Sanjay S. Gawde for the Petitioners.
    Mr. J.Saluja, AGP for Respondent No.1.
                                
    Mr. N.M.Ganguli for Respondent No.3.
                        ......
                        CORAM : DR. D.Y. CHANDRACHUD, J.

December 8, 2009.

ORAL JUDGMENT:

Rule, returnable forthwith. By consent of Counsel and at

their request taken up for hearing and final disposal.

2. The First Petitioner is a partnership firm which conducts a

Petrol Pump at S.V. Road, Goregaon. An incident took place on 22 nd

March 2006, when three workmen including the Third Respondent

were called to the cabin of a partner to enquire about another

workman, Soma Ghadshi, who was not reporting for duty and had not

furnished a written intimation for overstaying the period of leave.

The aforesaid workman had been asked by the management on 20th

March 2006 about his unauthorised absentism and was directed to

submit his written explanation. It was reported by the management

that the Third Respondent asked the co-workman not to furnish

anything in writing. When the Third Respondent was asked to

explain his conduct, it was alleged that he started shouting and used

filthy language against the partner of the Petitioner and threatened

that the Petrol Pump would be shut down if the management

addresses any query to the co-employee. The Third Respondent was

suspended on 22nd March 2006. Following the suspension, the

workman addressed a letter on 23rd March 2006 apologizing for the

incident. A collective letter was addressed by all the workmen on 1st

April 2006 apologizing for the incident and seeking a revocation of

the order of suspension that was issued to the Third Respondent. A

letter was also addressed on behalf of the Union on 1st April 2006.

3. The management issued a chargesheet on 27th March 2006,

setting out the aforesaid allegation and charging the workman inter

alia with willful insubordination and of the commission of an act

subversive of discipline. An Enquiry Officer was appointed and the

workman was allowed to be represented by a defence representative

who was an Advocate. During the course of the enquiry, the

workman accepted that he had signed a letter of apology, Exhibit 11,

and stated that its contents were true. The workman also accepted

the correctness of the collective letter signed by all the workmen. The

Enquiry Officer came to the conclusion that the charge of misconduct

was proved, in his report dated 26th June 2006. A copy of the report

was forwarded to the workman on 30th June 2006. An order of

dismissal was passed on 3rd July 2006.

4. The workman instituted a complaint of unfair labour

practices under Items 1(a), (b), (c ), (d), (f) and (g) of Schedule IV of

the Maharashtra Recognition of Trade Unions and Prevention of

Unfair Labour Practices Act, 1971. During the course of his cross-

examination, the workman admitted that he was represented by an

Advocate and that he had raised no protest during the course of the

enquiry that the recording of the Enquiry Officer was not proper.

The workman admitted his own letter of apology and the letter

addressed by all the workmen collectively.

5. The Labour Court by its judgment dated 27th February

2008, came to the conclusion that the enquiry was fair and proper

and the finding of the Enquiry Officer was not perverse. By its

judgment dated 28th January 2009, the Labour Court came to the

conclusion that the complaint of unfair labour practices was lacking in

substance. The complaint was accordingly dismissed. In revision,

the Industrial Court, by its order dated 31st August 2009, remanded

the proceedings back to the Labour Court.

6. The only ground on which the Industrial Court remanded

the proceedings, was that the Labour Court had failed to consider

whether the Model Standing Orders were applicable to the

establishment. The Industrial Court held that in the absence of

service rules applicable to the establishment, it was not possible for

the revisional Court to consider as to whether the action of the

employer was in accordance with such Rules.

7. Counsel appearing on behalf of the Petitioners submitted

that the workman had not raised any challenge to the enquiry on the

ground of the alleged inapplicability of the Model Standing Orders,

either in the complaint of unfair labour practices or in the memo

before the revisional Court. Reliance was sought to be placed on

judgments of the Supreme Court in support of the submission that

even in the absence of the Model Standing Orders, the employer is not

precluded from holding a disciplinary enquiry. On the other hand, it

is urged on behalf of the workman that the question which has been

raised in the order of the Industrial Court, goes to the root of the

matter and hence a remand is warranted.

8. The record before the Court will indicate that even before

the enquiry commenced, letters were addressed to the management

by the workman, by all the workmen collectively and by the Union.

In his letter dated 23rd March 2006, the workman expressed an

apology for the incident which had taken place on 26th March 2009

and sought leniency. Similar were the contents of the letter dated 1 st

April 2006, addressed by the workmen collectively. During the course

of the enquiry, the workman accepted having signed the aforesaid

letter and correctness of the contents thereof. Evidence was adduced

for and on behalf of the workman in the complaint of unfair labour

practices. There was no substantial challenge whatsoever to the

fairness of the enquiry. Neither in the complaint of unfair labour

practices, nor before the Labour Court, was there any challenge on the

part of the workman to the convening of the enquiry on the ground of

the alleged inapplicability of the Model Standing Orders. The

Industrial Court has referred to the submission recorded in paragraph

7 of the judgment of the Labour Court. In paragraph 7 of the

judgment of the Labour Court what was recorded as having been

argued before the Labour Court is that the misconduct which was

proved against the workman "is not an employment misconduct at

all" and on the other hand, "it had arisen due to pure trade union

activities". In other words, the contention of the workman was that

he was victimised for trade union activities. This is a completely

different submission than what the Industrial Court perceived it to be.

The point which has been raised in the judgment of the Industrial

Court, for the first time, was not raised in the proceedings before the

Labour Court. The point was not raised before the Labour Court in

the complaint of unfair labour practices. There is no reference thereto

in the affidavit in lieu of the Examination-in-Chief. The memo of the

Revision Application before the Industrial Court is also silent on such

a challenge. In these circumstances, the Industrial Court was clearly

in error, in allowing the submission to be raised. There was no

justification for the order of remand.

9. In any event, the submission is wholly devoid of

merits,having regard to the well settled position in law. The employer

is not precluded from holding a disciplinary enquiry even if the

Standing Orders do not apply to the establishment. In Agnani

(W.M.) Vs. Badri Das,1 the law on the subject has been crystalised in

the judgment of the Supreme Court thus:

"It is true that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct

can be properly treated as misconduct. It would be difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute misconduct; rowdy conduct in

the course of working hours would constitute misconduct; misbehaviour committed even outside working hours but

within the precincts of the concern and directed towards the employees of the said concern may, in some cases, constitute misconduct; if the conduct proved against the

employee is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of

each case. It may, however, be relevant to observe that it would be imprudent and unreasonable on the part of the

employer to attempt to improve the moral or ethical tone of his employees' conduct in relation to strangers not employed in his concern by the use of the coercive process

of disciplinary jurisdiction. As we have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. When standing orders were framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question

will have to be dealt with reasonably and in accordance with commonsense." (emphasis supplied).

1 1963 I L.L.J. 684

In The Management of Utkal Machinery Ltd. vs. Workman, Santi

Patnaik,2 the Supreme Court held that in the absence of a Standing

Order, unsatisfactory work of the employee may be treated as

misconduct in certain circumstances and an enquiry would be

necessitated. The Supreme Court held thus :

"In the absence of any Standing Order, the unsatisfactory work of an employee may be treated as misconduct and

when the respondent was discharged according to the management for unsatisfactory work it should be taken that

her discharge was tantamount to punishment for an alleged misconduct. If this conclusion is correct the management was not justified in discharging the respondent from service

without holding a proper enquiry." (emphasis supplied)

10. For the aforesaid reasons, the entire approach of the

Industrial Court has suffered from a perversity of approach and is

liable to cause a miscarriage of justice. The Industrial Court was

clearly in error in allowing a challenge, which was not raised before

the Labour Court or before it, in the memo of Revision, to be raised

for the first time. In any event, the challenge is lacking in merit or

2 AIR 1966 SC 1051

substance.

11. The Labour Court held that the enquiry was fair and proper;

that the findings did not suffer from perversity and that the

punishment did not warrant interference. The Industrial Court has

not considered these aspects which arise in the revisional application.