Bombay High Court
William Industries Pvt.Ltd vs Anil Shantaram Shinde And 2 Ors on 12 July, 2016
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3143 OF 2015
M/s.William Industries Pvt.Ltd. ...Petitioner
vs.
Anil Shantaram Shinde & Ors. ....Respondents
Mr.R.S. Pai with Anand Pai I/b. T.R. Yadav for Petitioner.
Mr.K.R. Shetty with Ms.Karuna Yadav for Respondent No.1.
ig CORAM : S.C. GUPTE, J.
12 JULY 2016
ORDER :
The petition challenges an order passed by the Industrial Court
at Mumbai in an appeal under Section 84 of the Bombay Industrial Relations
Act, 1946 ("BIR Act"). By the impugned order, the Industrial Court partly
allowed the first Respondent's appeal against dismissal of his application
under Sections 78 and 79 of the BIR Act.
2 The first Respondent was working in the Petitioner's factory as a
Jobber in the Power Knitting Department since 1983. He was made
permanent since 1986. On 22 August 1997, after office hours, the first
Respondent is claimed to have confronted a fellow employee, one Mr.B.V.
Pillai, abused and bet him outside the premises of the Petitioner. An office
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memorandum to show cause was issued to the first Respondent in relation
to the incident. Finally, on 8 September 1997, a chargesheet was given to
the first Respondent alleging misconduct under certified Standing Order
No.20-K, namely, "drunkenness, riotous, disorderly or indecent behaviour in
the premises of the undertaking". In a departmental enquiry conducted in
pursuance of the chargesheet, the Enquiry Officer found the first Respondent
guilty of the charge. On the basis of the Enquiry Officer's report, on 15
September 1998, the Petitioner terminated the services of the first
Respondent. The first Respondent challenged the termination in an
application under Sections 77 and 78 of the BIR Act before the Labour Court
at Mumbai. The Labour Court, in the first place, held the enquiry to be fair
and proper and later on, by the impugned order, upheld the finding of the
Enquiry Officer as also the punishment awarded as legal and proper. In an
appeal filed by the first Respondent under Section 84 of the BIR Act, the
Industrial Court partly allowed the first Respondent's appeal and set aside
the impugned order of the Labour Court as also the order of termination
passed by the Petitioner and held the first Respondent to be entitled to
reinstatement of service with effect from the date of termination with full
back wages and other service benefits. This order is challenged by the
Petitioner in the present petition.
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3 Learned Counsel for the Petitioner makes the following
submissions :
(i) It is submitted that the Industrial Court, whilst exercising jurisdiction
under Section 84 read with Section 85 of the BIR Act, acted beyond
its jurisdiction and powers by substituting its findings in place of those
of the Enquiry Officer. It is submitted that the Labour Court itself was
not empowered to interfere with the findings of the domestic tribunal
simply because a different view of the evidence was possible. It is
submitted that since the Labour Court itself did not have such powers,
the Industrial Court in an appeal from an order of the Labour Court
could not have interfered with the findings;
(ii) It is submitted that the finding of the Industrial Court that the
Petitioner had no jurisdiction to take disciplinary action against the
first Respondent, since the alleged misconduct occurred at a place
outside the Petitioner's premises, is not proper and tenable. Learned
Counsel relies on judgments of the Supreme Court in the case of
Mulchandani Electrical and Radio Industries Ltd. vs. Their
workmen1, as also of our court in the case of Murlidhar Raghoji
1 (1975) 4 SCC 731
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Savant vs. General Manager, Nather & Platt (I) Ltd. 2 in support of
his submission that it is not really the place where the act which is
subversive of discipline or good behaviour is committed, but where
the consequence of such act manifests itself, or effect of such act is
felt, where the misconduct within the meaning of relevant standing
order can be said to be committed;
(iii)
It is submitted that in any event, since the Petitioner has
already closed down its establishment at the particular place with
effect from 20 June 2007, the impugned order granting reinstatement
with full back wages could not have been passed. It is submitted that
this court, whilst granting appropriate relief in the matter, is bound to
take into account the closure of the undertaking;
4 It is not in dispute that the misconduct alleged against the first
Respondent was under certified Standing Order No.20-K, which reads as
follows :
"20-K - Drunkenness, riotous, disorderly or indecent behaviour in the
premises of the undertaking."
2 1991 SCC OnLine Bom 388
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The allegation in the chargesheet was that after completing the first shift,
the first Respondent waited outside the factory and confronted one
B.V.Pillai, who was a Knitting Supervisor in the department, and started
beating and abusing him in filthy language without any reason; and that this
act amounted to misconduct within the meaning of the abovementioned
standing order. In the report of the Enquiry Officer, the Enquiry Officer has
simply held the first Respondent to be guilty of beating and abusing Mr.Pillai
in filthy language on 22 August 1997 outside the factory premises. In that
view of the matter, the Enquiry Officer has held the charge as proved
conclusively against the first Respondent. The Labour Court, in its
preliminary order dated 8 September 2005, held the domestic inquiry to be
fair and proper. The court thereafter proceeded to hear the remaining issues,
particularly whether the findings of the Enquiry Officer were perverse and
whether the services were legally terminated by the Petitioner. The Labour
Court, after considering the material on record, including evidence led
before the Court, came to a conclusion that the first Respondent had
assaulted Shri Pillai and that the findings of the Enquiry Officer were not
perverse and accordingly held the termination to be legal. What is important
to note here is that neither the domestic tribunal nor the Labour Court came
to the conclusion that the alleged misconduct on the part of the first
Respondent had any direct or rational nexus with the industrial relations
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between the employer and the workmen in the establishment or any direct
connection with the contentment or comfort of the men at work, or had any
material bearing on the smooth and efficient working of the Petitioner's
establishment. The first Respondent's case was that there was some
monetary transaction between the first Respondent and Pillai and as a
result, a fight ensued between the two and in the scuffle that followed the
first Respondent had slapped Pillai in self defence. Both the domestic
tribunal and the Labour Court simply relied on the first Respondent's
admission that he had actually slapped Pillai without adverting to the reason
of the scuffle and fight between the two and without considering the effect
of the incident either on the industrial relations or on the working of the
establishment. Neither has found the explanation of the scuffle and fight
furnished by the first Respondent to be unbelievable or untrustworthy.
Neither has dwelt on the effect of the scuffle and the fight.
5 It is true that the Supreme Court in Mulchandani Electrical
and Radio Industries' case (supra) held that the terms used in the standing
order, which terms are pari materia with the standing order in the present
case, namely, "within the premises" or "within the precinct of the
establishment", refer not to the place where the act, which is subversive of
discipline or good behaviour, is committed but where the consequence of
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such an act manifests itself or the effect of the act is felt. The court held that
if an act, wherever committed, has the effect of subverting discipline or good
behaviour within the premises or precincts of the establishment, such act
amounts to misconduct under the relevant standing order. These
observations were made in the context of a case, where the delinquent
employee had actually threatened his supervisor with assault because of the
latter's report against another fellow workman, who was removed from
service in pursuance of the report. This threat, which was administered
within the premises, was followed up by the delinquent employee by
assaulting the supervisor on that very day after office hours and outside the
office premises. The alleged act of misconduct, thus, though actually
committed outside the premises of the establishment, had a clear nexus with
the duties of the workman and the steps taken during the course of his
duties to the employer by the supervisor, who was assaulted.
6 Mulchandani Electrical and Radio Industries' case (supra)
was later considered by a learned Single Judge of our court in the case of
Murlidhar Raghoji Savant (supra). After an extensive review of the case
law on the subject, our court held that if the misconduct complained of,
though committed outside the premises, had a direct connection either with
the contentment or comfort of workmen and staff within the premises or a
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material bearing on the smooth and efficient working of the establishment,
it would still be a misconduct committed within the premises of the
establishment. Even in that case, the record clearly showed that the assault
committed on the fellow workman, though admittedly outside the premises,
was a result of the stand taken by the fellow workman in connection with a
strike within the establishment. It was not a purely personal or private
matter between the delinquent workman and the assaulted fellow workman,
unconnected with the industrial relations within the establishment. It had a
direct and rational nexus with the contentment or comfort of the men at
work and a direct material bearing on the smooth and efficient working of
the establishment.
7 As I have noted above, in the present case, the act was, by all
accounts, a pure personal and private matter between the first Respondent
and the fellow workman, Mr.B.V. Pillai. Neither the domestic tribunal nor
the Labour Court has come to the conclusion that the assault has anyhing to
do with the industrial relations within the establishment or any bearing on
the smooth or efficient working of, or contentment or comfort of the men at
work within, the establishment. In other words, it cannot be said, by any
stretch of imagination, that the alleged act is in any way a riotous or
disorderly or indecent behaviour in the premises of the Petitioner. The
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Industrial Court, in the premises, has come to a correct conclusion that the
misconduct alleged did not amount to misconduct within the meaning of the
relevant standing order and that the conclusion drawn by both the domestic
tribunal and the Labour Court is clearly perverse and unsustainable.
8 The conclusion of the domestic tribunal and the action of
termination taken by the Petitioner on its basis ought to have been termed
as perverse and interfered with by the Labour Court. If the Labour Court
does not do so, the Industrial Court is well within its appellate powers under
Section 84 of the BIR Act to interfere with the order of the Labour Court and
set things right. By doing so, the Industrial Court does not exceed its
jurisdiction or exercise any power wider than the Labour Court. There is,
thus, no merit in the contention that an Appellate Court under Section 85 of
the BIR Act could not have passed the impugned order.
9 The alleged closure of the particular establishment was not a
subject matter of inquiry before either of the Courts below. In fact, the
closure, even according to the Petitioner, took place much after the BIR
application was filed by the first Respondent workman. The first
Respondent's case is that the Petitioner actually shifted all its operations
including the manufacturing activities to its new factory at Navi Mumbai, at
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the address stated in the cause title of the petition. Anyway, there was no
contest on these facts before the Courts below and it will not be proper for
this Court to consider these facts for the first time in the present writ
petition. The reinstatement is directed by the Industrial Court as of the date
of termination, i.e. 15 September 1998. Any closure post that date would be
a change of circumstances and would have to be brought up in a separate
proceeding before an appropriate forum and cannot be considered in a
challenge under Article 226 to the orders below. This Court would have
considered it, whilst moulding the reliefs, if there was no contest on the
factum of closure, but not otherwise.
10 In the premises, there is no merit in the petition and the same
is dismissed. No order as to costs.
(S.C. Gupte, J.)
