M/S Karamchand Thapar & Brothers ... vs The Member
2009 Latest Caselaw 95 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY:

                            NAGPUR BENCH: NAGPUR




                                                                                
                        WRIT PETITION NO. 2871 OF 2002




                                                        
PETITIONER:
     M/s Karamchand Thapar & Brothers (Coal Sales) Limited, Temple Road,               Civil
      Lines, Nagpur through the General Manager, Nagpur.




                                                       
                                      VERSUS
RESPONDENTS:
1]    The Member, Indusdtrial Court Maharashtra, Nagpur Bench, Nagpur, Temple




                                             
      Road, Civil Lines, Nagpur.
2]    The Presiding Officer, Ist Labour Court, Nagpur Temple Road, Civil Lines,
                               
      Nagpur.
                              
3]    Umaiji s/o Ajabrao Tekade, c/o Arjun Nagorao Dhote, Qr. No.82/2 Rambagh
      Colony, Medical Chowk, Nagpur.
===============================================================
Shri C.S. Samudra, advocate for petitioner
            


Shri V.P. Marpakwar, advocate for respondent no.3
         



===============================================================
                                         WITH
                         WRIT PETITION NO.3738 OF 2002
PETITIONER:





      Shri Umaji s/o Ajabrao Tekade, aged about 56 years, occupation : Nil, c/o Arjun
      Nagorao Dhote, Quarter No.8/2, Rambagh Colony, Medical Chowk, Nagpur
                                      VERSUS
RESPONDENT:





    M/s Karamchand Thapar & Brothers (Coal Sales) Ltd., Thapar House, Temple
      Road, Civil Lines, Nagpur through its General Manager
===============================================================
Shri V.P. Marpakwar, advocate for the petitioner
Shri C.S. Samudra, advocate for the respondent
===============================================================




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CORAM: SMT. VASANTI A. NAIK, J.

DATE: DECEMBER 15, 2009

ORAL JUDGMENT

Since common questions of facts arise for determination in these two writ

petitions, they are heard together and are decided by this common judgment.

2]

The petitioner in Writ Petition No. 3738/2002 is the original complainant and the

petitioner in Writ Petition No.2871/2002 is his employer. The employee was engaged as

a Peon by the employer on 1.6.1991. He was then assigned the duties of Dispatch Clerk

w.e.f. 4.11.1981. During his service, a charge sheet was issued against the employee on

19.5.1983 levelling 7 charges against the employee. It was the case of the employer that

the employee had misappropriated an amount of Rs.280/- and was also guilty of

dereliction of duty. It was alleged that the employee was taking money from the

customers on false pretext and had not returned the same to them. While working as

Dispatch Clerk, according to the employer, the employee was not sending the letters

with the postage to the customers and almost 200 letters were not sent to the clients of

the company by the employee. It was then alleged that the employee remained absent

from duty without leave on many occasions. The employee accepted the charges and

pleaded guilty. However, the management decided to hold an enquiry against the

employee. The Enquiry Officer, was appointed and the witnesses of the employer were

examined. The employee however, refused to cross-examine the witnesses of the

employer. After conducting the enquiry the Enquiry Officer submitted the report on

9.9.1983. The Enquiry Officer held that all the charges leveled against the employee

were proved. The employee was ultimately dismissed from service by an order dated

15.9.1983.

3]

The employee challenged the order of dismissal in a complaint before the Labour

Court. The Labour Court framed a preliminary issue about the fairness of the enquiry

and held that the enquiry held by the employer was fair and proper. Ultimately, by the

judgment dated 17.2.1995, the Labour Court decided the complaint and directed the

employer to reinstate the employee in service. It was held by the Labour Court that the

findings recorded by the Enquiry Officer were not perverse and all the charges were

rightly held to be proved against the employee. The Labour Court, however, held that

the punishment of dismissal was disproportionate to the act of misconduct committed by

the employee. Two separate revisions were filed by the parties before the Industrial

Court, one by the employer and another by the employee. The Industrial Court,

however by the impugned judgment dated 24.6.2002 dismissed both the revisions. The

employee has filed Writ Petition No.3738/2002 against the order passed by the Labour

& Industrial Court denying back wages to the employee. Similarly, the employer has

filed Writ Petition No.2871/2002 against the order passed by the Labour & Industrial

Court granting reinstatement to the employee.

4] Shri C.S. Samudra, the learned counsel for the employer submitted that the

Labour Court had no jurisdiction to interfere with the quantum of punishment imposed

by the employer, once it came to the conclusion that the enquiry was fair and proper and

the findings recorded by the Enquiry Officer were not perverse and all the charges were

rightly held to be proved against the employee. According to the learned counsel for the

employer there was no occasion for the Labour and the Industrial Court to interfere with

the punishment imposed by the employer on the employee. The learned counsel for the

employer submitted that the Labour Court had without recording any reason held that

the punishment imposed by the employer was disproportionate and the Industrial Court

for unsustainable reasons, has recorded a finding that the punishment imposed by the

employer was disproportionate to the act of misconduct committed by the employee.

The learned counsel for the employer submitted that courts were not justified in

directing the reinstatement of the employee in the facts and circumstances of the case

when some of the charges were admitted by the employee in his cross-examination . The

learned counsel for the employer relied on the decisions reported in (2000)7 SCC 517,

2002(4) SCALE Page 525 and 2006(4) Mh.L.J. 323 to substantiate his submission that

once a court comes to the conclusion that the charges are proved and the charges are of

serious nature, it is not open to the court to interfere with the quantum of punishment.

5] Shri Marpakwar, the learned counsel for the employee supported the order passed

by both the courts, so far they directed reinstatement of the employee and submitted that

in fact the employee ought to have been paid the back wages also. The learned counsel

for the employee submitted that the Industrial Court has given elaborate reasons for

holding that the punishment was disproportionate to the act of misconduct committed by

the employee. The learned counsel for the employee took this court through paragraphs

21, 22 and 23 of the judgment passed by the Industrial Court to submit that for

sustainable reasons the Industrial Court has held that the punishment of dismissal

imposed by the employer was disproportionate to the act of misconduct. The learned

counsel for the employee sought for the dismissal of the writ petition filed by the

employer.

6] I have considered the submissions made on behalf of the parties and perused the

impugned orders dated 17.2.1995 and 24.6.2002. It is held by the Labour Court that the

enquiry conducted by the employer was fair and proper and in accordance with the

principles of natural justice. The Labour Court, further came to a conclusion that the

findings recorded by the Enquiry Officer were not perverse and all the charges were

rightly held to be proved against the employee. The Labour Court without recording a

single reason held that the punishment of dismissal was disproportionate to the act of

misconduct committed by the employee. The Industrial Court also confirmed all the

findings recorded by the Labour Court. The Industrial court however, however held

while holding that the punishment was disproportionate to the act of misconduct that no

action was immediately taken in regard to the misappropriation of the amount. Though it

was held that the findings of the Enquiry Officer were not perverse and were proper, the

Industrial Court held that there was sufficient cause for the employee for remaining

absent. The Industrial Court unnecessarily gave undue weightage to the fact that the

employee was mentally perturbed during the relevant period because of illness of his son

and because of family problems. About the borrowing of the amount from the outsider

or from the customer of the employer, the Industrial Court observed that at the most the

act may be treated as fraudulent. Having observed so, it was not proper on the part of the

Industrial Court to hold that the image of the employee would have been lowered in the

eye of the creditor, but the image of the employer could not have been lowered by the

act of the employee. Industrial Court committed an error in observing that obtaining of

money on false pretext cannot be said to be a misconduct of serious nature . About the

charge of not dispatching of 200 letters, the Industrial Court observed that it was the

fault of the employer to ask the employee to do the work which was beyond his capacity.

The Industrial Court observed that the employer ought not have continued the services

of the employee as a Dispatch Clerk and ought to have appointed some more skilled

person on that post. All the reasons stated by the Industrial Court in rationalizing the

actions of the employee are extremely unreasonable. In the facts and circumstances of

the case, neither the Labour Court nor the Industrial Court was justified in interfering

with the punishment imposed by the employer on the employee when all the 7 charges

were held to be proved against the employee and it was found that the findings recorded

by the Enquiry Officer were not perverse. The judgments reported in (2000)7 SCC 517,

2002(4) SCALE Page 525 and 2006(4) Mh.L.J. 323, clearly support the case of the

employer.

7] In the result, Writ Petition No.2871/2002 is allowed. Writ Petition No.3738/2002

is dismissed. The judgment passed by the Labour & Industrial Court on 17.2.1995 and

24.6.2002, respectively are hereby quashed and set aside. The Complaint filed by the

employee stands dismissed. Rule is made absolute in the aforesaid terms with no order

as to costs.

JUDGE

SMP.