Bombay High Court
Ambadas Pandurang Gurav / ... vs Kinetic Engineering Ltd Through ... on 31 August, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5575 OF 2016
Ambadas s/o Pandurang Gurav/ Waghmare,
Age : 55 years, Occupation : Service,
R/o Shriram Colony, Nagar Pune Road,
Kedgaon, Taluka and District
Ahmednagar.
...PETITIONER
-VERSUS-
Kintetic Engineering Ltd.,
Nagar Daund Road,
Near Arangaon, Taluka and
District Ahmednagar.
Through it's Chairman.
...RESPONDENT
...
Advocate for Petitioner : Shri Markad Dattraya R.
Advocate for Respondent : Shri V.S.Bedre a/w Shri Tejas Bedre.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 31st August, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioner is aggrieved by the judgment dated 16.03.2013
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delivered by the Labour Court by which his Complaint (ULP) No.37/2010
was dismissed. The Labour Court concluded that the punishment of
dismissal from service for a proved misconduct of sleeping on duty was
not shockingly disproportionate.
3 The Petitioner is also aggrieved by the judgment dated
29.02.2016 delivered by the Industrial Court by which Revision (ULP)
No.1/2014 filed by the Petitioner has been dismissed.
4 The Petitioner has strenuously criticized the impugned
judgments. It is not in dispute that the part-1 judgment dated 21.04.2012
delivered by the Labour Court by which the enquiry was held to be fair
and proper and the findings of the Enquiry Officer were sustained, was
not challenged by the Petitioner/ workman before the Industrial Court as
well as before this Court.
5 The submissions of the Petitioner can be summarized as
follows:-
(a) He joined the Respondent Company as a Job Trainee on
02.05.1980.
(b) He was appointed as an Assistant Grinder on 09.05.1991.
(c) In 1997, he was recognized as the Best Worker.
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(d) On 20.11.2008, he was found sleeping on duty at 05:10 am in
the third shift.
(e) His act of sleeping on duty was recorded by an electronic
gadget.
(f) He was issued with the show cause notice on 12.12.2008.
(g) He replied to the show cause notice on 18.12.2008.
(h) He was served with the charge sheet on 19.12.2008.
(i) The Enquiry Officer was appointed to conduct a domestic
enquiry under the Model Standing Orders framed as per the
Industrial Employment (Standing Orders) Act, 1946.
(j) The Enquiry Officer submitted his report on 30.11.2009.
(k) The second show cause notice dated 25.05.2010 was served
upon the Petitioner thereby calling upon him to show cause as
to why the findings of the Enquiry Officer should not be
accepted.
(l) He submitted his reply on 02.06.2010 and denied all the
charges.
(m) He was dismissed from service on 09.06.2010 by way of
punishment.
(n) He was placed under suspension during the period of enquiry
and was paid subsistence allowance.
(o) He filed Complaint (ULP) No.37/2010 before the Labour
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Court challenging the findings of the Enquiry Officer, the
domestic enquiry and the proportionality of the punishment.
(p) By the part-1 judgment dated 21.04.2012, the Labour Court
upheld the enquiry and the findings of the Enquiry Officer.
(q) By the impugned judgment dated 16.03.2013, the Labour
Court concluded that the punishment of dismissal for sleeping
on duty in the Heat Treatment Department was a serious
misconduct and hence, the punishment cannot be termed as
being shockingly disproportionate.
(r) The revision petition filed by the Petitioner was dismissed by
the Industrial Court vide judgment dated 29.02.2016
concluding that the judgment of the Labour Court is neither
perverse nor erroneous.
(s) He had put in 30 years in service till the date of his dismissal
and which was unblemished.
6 Shri Markad, learned Advocate for the Petitioner/ workman,
has placed reliance upon the judgments of the Apex Court in the matter of
M/s Hind Construction and Engineering Company Limited vs. Their
Workmen, AIR 1965 SC 917 (three Judges Bench) and in the matter of
Colour Chem Limited vs. A.L.Alaspurkar, AIR 1998 SC 948 (three Judges
Bench).
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7 Shri Bedre, learned Advocate for the Respondent/ Company,
has strenuously supported the impugned judgments. He submits that the
Petitioner has not challenged the part-1 judgment by which the enquiry
was sustained and so were the findings of the Enquiry Officer. As such, the
issue as regards the fairness of the enquiry and the findings of the Enquiry
Officer cannot be reopened.
He submits that the employee was working in a very sensitive
area. He was in the Heat Treatment Department and operating the short
blasting machine which is fed with energy from LPG cylinders. There were
about 13 to 14 workers working around him. Because of the Petitioner
going to sleep, an explosion could have occurred and that would have
resulted in fatalities. It is only by providence that such a blast did not take
place or else the Petitioner would have been the first person to be affected
by such blast. Shri Bedre, therefore, voiced a concern that had the blast
taken place, there would have surely been loss of lives.
9 Shri Bedre submits that in similar circumstances, the Division
Bench of this Court in the matter of Uttam Manohar Nakate vs. Bharat
Forge Company Limited, Pune, 2002 (93) FLR 293 had sympathized with
the employee and converted his punishment of dismissal from service into
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an order of lump-sum compensation of Rs.2,50,000/-. The Company
approached the Honourable Supreme Court in the matter of Bharat Forge
Company Limited vs. Uttam Manohar Nakate, AIR 2005 SC 947 and the
Honourable Supreme Court reversed the judgment of the learned Division
Bench of this Court. The order of punishment of dismissal was held to be
proportionate after considering the following judgments :-
(a) Regional Manager, Rajasthan State Road Transport
Corporation vs. Sohan Lal, AIR 2004 SC 4828 : (2004) 8 SCC
(b) Cement Corporation of India Ltd. vs. Purya, AIR 2004 SC
4830 : (2004) 8 SCC 270.
(c) U.P. State Road Transport Corporation vs. Subhash Chandra
Sharma, AIR 2000 SC 163 : (2000) 3 SCC 324.
(d) U.P. State Road Transport Corporation vs. Mohan Lal Gupta,
AIR 2001 SCW 2330 : (2000) 9 SCC 521.
(e) Colour Chem Ltd. vs. A.L.Alaspurkar, AIR 1998 SC 948 :
(1998) 3 SCC 192.
(f) Bharat Iron Works vs. Bhagubhai Balubhai Patel, AIR 1976 SC
98 : (1976) 1 SCC 518.
(g) Hind Construction and Engineering Company Ltd. vs. Their
Workmen, AIR 1965 SC 917.
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10 Shri Bedre, therefore, submits that the view taken by the
Honourable Supreme Court is, therefore, crystal clear and the law is now
settled that in cases of sleeping on duty, no sympathy can be shown
towards the employee. He, therefore, prays for the dismissal of this
petition.
11 I have considered the submissions of the learned Advocates
and have gone through the reports cited.
12 The facts of this case as recorded above, through the
submissions of the learned Advocates, are not in dispute. There was a
video recording of the Petitioner sleeping on duty in the third shift at
05:10 am. The fairness of the enquiry and the findings of the Enquiry
Officer cannot be reopened considering that the Petitioner has not
challenged the part-1 judgment.
13 The only issue, therefore, is as regards the proportionality of
the punishment. The Honourable Supreme Court in the matter of Damoh
Panna Sagar Rural Regional Bank vs. Munna Lal Jain, 2005 (104) FLR
291, has concluded that merely because the punishment may appear to be
disproportionate would not warrant interference by the Court. The
punishment must appear to be shockingly disproportionate and only then
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the Court can exercise it's jurisdiction of suitably modifying the
punishment.
14 It is, therefore, settled that unless it is found that the
punishment is shockingly disproportionate, the order of dismissal cannot
be set aside. In this backdrop, it needs to be considered as to whether, the
past service record of the Petitioner has any blemishes. In the Bharat Forge
Company case (supra), the employee (Uttam Manohar Nakate) was found
sleeping on duty at 11:40 am in broad day light. He was previously
punished on three occasions for misconducts in 10 years of service. In the
case in hand, the Petitioner has put in 30 years of clean and unblemished
service record barring one minor warning. The act of sleeping on duty has
occurred for the first time in these 30 years of employment and that too at
05:10 am after working in the entire night third shift.
15 Considering the total effect of the facts as above, I do not
deem it proper to reinstate the Petitioner in service. He is presently 55
years old considering his date of birth to be 01.06.1961. I am causing
indulgence in this petition only on considering that the entire 30 years of
service of the Petitioner did not give any reason to the Respondent /
Management to issue him a charge sheet or suspension or cause any
disciplinary enquiry or punish him except with one minor warning.
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16 As such, I am of the view that the Labour Court should have
modified the punishment by converting his dismissal into discharge,
though the Model Standing Orders do not prescribe any punishment in
between the maximum punishment of dismissal from service and
suspension for four days.
17 In the light of the above, this Writ Petition is, therefore, partly
allowed. The dismissal of the Petitioner dated 09.06.2010 shall stand
converted into an order of discharge w.e.f. the date of this judgment. He
will not be entitled for any back-wages. His gratuity shall be calculated
from the date of his joining 02.05.1980 till 31.08.2016 on the basis of his
last drawn gross wages on an average for the months of March, April and
May, 2010. He shall be entitled for retiral benefits, provident fund
accumulation, pensionary benefits, if any, as may be payable to him in
accordance with law and the service conditions applicable to him. The
impugned judgments of the Labour Court and the Industrial Court are,
therefore, modified with these directions.
18 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
