Ismail Abdul Pathan vs Sanjivani Sahakari Sakhar ...
2016 Latest Caselaw 6880 Bom

                                             1




                                                                               
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                       
                            WRIT PETITION NO.5670 OF 2003

    Ismail Abdul Pathan,
    Age-51 years, Occu-Nil,




                                                      
    R/o Laxmi Nagar, Vasahat,
    At Post Tq. Kopargaon,
    Dist.Ahmednagar                                          - PETITIONER 




                                            
    VERSUS

    Sanjivani Sahakari Sakhar Karkhana
                              
    Ltd., Sahajanand Nagar,
    Tq.Kopargaon, Dist.Ahmednagar,
    Through it's Managing Director                           - RESPONDENT

WITH WRIT PETITION NO.5672 OF 2003

Ismail Abdul Pathan,

Age-51 years, Occu-Nil, R/o Laxmi Nagar, Vasahat,

At Post Tq. Kopargaon, Dist.Ahmednagar - PETITIONER

VERSUS

Sanjivani Sahakari Sakhar Karkhana Ltd., Sahajanand Nagar, Tq.Kopargaon, Dist.Ahmednagar, Through it's Managing Director - RESPONDENT

Mr.N.R.Bhavar, Advocate for the petitioner. Mr.Ajinkya Deshmukh h/f Mr.A.V.Hon, Advocate for respondent.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 02/12/2016

ORAL JUDGMENT :

khs/DEC.2016/5670-d

1. Both these petitions are filed by the same employee against the

same sugar factory. Both petitions are admitted on 15/03/2004.

2. The Labour Court, Ahmednagar by its judgment dated

18/02/1995 had decided Application (BIR) No.4/1988 and granted

reinstatement with continuity and 1/3 rd back wages to the petitioner.

He preferred Appeal No.2/1995 before the Industrial Court seeking

full back wages. The respondent/Management preferred Appeal

No.1/1995 praying for setting aside of the judgment of the Labour

Court. By the impugned judgment dated 12/08/2003, the

petitioner's appeal was dismissed and the respondent's appeal was

allowed by the Industrial Court. Judgment of the Labour Court was

set aside and the Application (BIR) No.4/1988 filed by the petitioner

was dismissed. Hence these two writ petitions by the same employee.

3. I have heard the strenuous submissions of the learned

Advocate for the petitioner and Mr.A.V.Hon, learned Advocate

alongwith Mr.Deshmukh for the respondent/management.

4. Upon considering their submissions, I have gone through the

record available.

khs/DEC.2016/5670-d

5. There is no dispute that the petitioner joined the respondent/

factory as a "cleaner" on a truck on 01/01/1974. He was deployed in

the Garage Department. Several times, he used to drive the vehicle

since he held a valid driving license.

6. He was issued with a charge sheet alleging that while reversing

the tanker on the ramp of the garage belonging to the factory, the cap

on the tanker and the girder of the garage got damaged. Learned

Advocate for the petitioner submits that today, repairs for the said

damage would cost about Rs.5,000/- and in 1987, it would cost

about Rs.100/-.

7. There is no dispute that a domestic enquiry was conducted and

upon the charges being proved, the petitioner was dismissed from

service by order dated 18/11/1987 w.e.f. 19/11/1987.

8. It is also not disputed that the Labour Court did not vitiate the

enquiry and therefore the matter proceeded only to the extent of

whether the punishment of dismissal from service awarded to the

petitioner was commensurate to the gravity of the mis-conduct. It is

also not disputed that the petitioner was once warned on

khs/DEC.2016/5670-d

11/02/1979, suspended for one day on 09/09/1979, suspended for

two days on 10th and 11/03/1981 and suspended for four days from

15/09/1981 to 18/09/1981 for minor misconducts.

9. The Labour Court, vide its judgment dated 18/02/1995,

concluded that the punishment of dismissal from service was

shockingly disproportionate considering the past record of the

petitioner and granted reinstatement with continuity and 1/3 rd back

wages. He was deprived of 2/3rd back wages by way of punishment

and besides the same, the Labour Court directed the punishment of

4 days suspension.

10. By the impugned judgment, the Industrial Court has quashed

the judgment of the Labour Court and has concluded that the

punishment of dismissal from service was proportionate. The

respondent has strenuously supported the judgment of the Industrial

Court and has contended that in the writ and supervisory

jurisdiction of this Court, there should be no interference in the

matter. In the alternative, he places reliance upon the judgment of

the Hon'ble Supreme Court delivered in the matter of Gauri Shanker

Vs. State of Rajasthan, 2015(2) CLR 497 to contend that only 25%

back wages can be granted in the event this Court desires to cause

khs/DEC.2016/5670-d

any interference.

11. The Industrial Court, in my view, has fallen in a patent error

while concluding that the judgment of the Labour Court is perverse.

It has concluded in paragraph No.9 that once the enquiry is

sustained and the Management has not acted illegally, the Labour

Court should not interfere with the punishment. It appears that the

Industrial Court has lost sight of the Law that if the punishment

appears to be shockingly disproportionate to the gravity and the

seriousness of the misconducts by considering the past service

record, the punishment can be suitably modified. If the past service

record is highly blemished, it would operate as an aggravating factor

and if it is a clean past record, it would operate as a mitigating factor.

12. In the instant case, the roof cap of the tanker got damaged as it

got stuck in the shutter of the garage which was not adequately open

to let the tanker enter the garage. When the petitioner was reversing

the tanker, so as to climb the ramp of the garage, the Technician

Incharge of the garage should have ensured that the shutter is

adequately open so as to let the tanker enter into the garage.

13. Nevertheless, without going into this aspect, punishment of

khs/DEC.2016/5670-d

dismissal can be awarded to an employee, who has committed a grave

and serious misconduct. The instant misconduct at issue cannot be

said to be so grave and serious that the punishment of dismissal

which amounts to civil death, could be awarded to the petitioner

considering the minor blemishes in his past service record. From

1981 till 1987, not a single misconduct has been reported against the

petitioner. Therefore, considering the view laid down by the Hon'ble

Supreme Court in the matter of Damoh Panna Sagar Rural Regional

Bank Vs. Munna Lal Jain, [2005(104) FLR 291] if the punishment

appears to be shockingly disproportionate, an interference is called for.

14. It is informed that the petitioner has attained the age of

superannuation in 2012. His last drawn wages were @ Rs.1,050/-

per month. As such, there cannot be an order of reinstatement.

15. Learned Advocate for the petitioner has relied upon a judgment

of the Hon'ble Supreme Court in the matter of Deepali Gundu

Surwase Vs.Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and

others, [(2013)10 SCC 324] in support of his contention that 100%

back wages should be granted. I am depriving the petitioner of 50%

back wages by way of punishment for the minor misconduct

committed by him.

khs/DEC.2016/5670-d

16. In the light of the above, the impugned judgment of the

Industrial Court dated 12/08/2003 is quashed and set aside. Appeal

No.1/1995 filed by the respondent/Management is partly allowed by

sustaining the order of continuity in service and Appeal No.2/95 is

partly allowed by awarding 50% back wages till the date of his

retirement. These two petitions are, therefore, partly allowed and

rule is made partly absolute in the above terms.

17. The respondent shall therefore calculate 50% back wages by

considering Rs.1,050/- per month as the last drawn wages from

19/11/1987 till the age of retirement of the petitioner and pay the

said amount within a period of 12 weeks from today, failing which the

said amount shall carry interest @ 5% from the date of judgment of

the Labour Court which is 18/02/1995.

( RAVINDRA V. GHUGE, J.)

khs/DEC.2016/5670-d