Bombay High Court
Manish S/O. Nandkishor Mishra vs Vardhan Syntex Factory M.I.D.C. ... on 18 July, 2016
Bench: A.S. Chandurkar
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fIN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4101 OF 2015
Manish s/o Nandkishor Mishra
R/o Khamgaon, Tahsil Khamgaon,
District Buldana .... Petitioner.
-vs-
Vardhan Syntex, now known as Birla
Cotsyn (India) Ltd.,
1/82, MIDC Industrial Area,
Khamgaon, District Buldana,
Thr. its Manager. ... Respondent
WITH
WRIT PETITION NO.1448 OF 2015
Vardhan Syntex, now known as Birla
Cotsyn (India) Ltd.,
1/82, MIDC Industrial Area,
Khamgaon, District Buldana,
Thr. its Manager. ... Petitioner
-vs-
Manish s/o Nandkishor Mishra
R/o Khamgaon, Tahsil Khamgaon,
District Buldana ... Respondents.
Shri C. R. Sharma, Advocate for petitioner in W.P.No.4101/15 and for
respondent in W.P.No.1448/15.
Shri M. I. Dhatrak, Advocate for respondent in W.P.No.4101/15 and for
petitioner in W.P.No.1448/15.
::: Uploaded on - 26/07/2016 ::: Downloaded on - 30/07/2016 09:48:50 :::
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CORAM : A.S.CHANDURKAR, J.
DATE : JULY 18, 2016
Common Judgment :
Since both these writ petitions raise challenge to the judgment of
the Industrial Court dated 13/11/2014, the same are being decided by this
common judgment.
Rule. Rule made returnable forthwith and heard finally with the
consent of learned counsel for the parties.
2. The petitioner in W.P.No.4101 of 2015 was employed with the
respondent-firm in its Engineering division. On 19/06/2004 while leaving
from duty, his tiffin box was checked and a bottle of soap solution weighing
250 gm was found. On that basis a charge-sheet was issued to him and an
enquiry was held. After following the prescribed procedure, his services were
terminated by order dated 02/09/2004. Being aggrieved, the petitioner filed
complaint under Section 28 of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971 (for short the said Act)
before the Labour Court seeking re-instatement.
3. The respondent filed its written statement and justified the entire
action taken by it. It was stated that the inquiry was held in fair and proper
manner and as the charges were duly proved, the services of the petitioner
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were terminated. A plea that the employer had lost confidence in the
employee was also raised. The Labour Court after considering the entire
material on record held that the inquiry was conducted against the petitioner
in a fair and proper manner. It further held that the charge against the
petitioner had been duly proved and as the petitioner had lost the confidence
of his employer, the punishment of dismissal was just and proper.
In the revision application preferred by the petitioner, the
Industrial Court confirmed the finding recorded by the Labour Court that the
inquiry was held to be in a fair and proper manner. The Industrial Court
however found that the punishment of dismissal from service was shockingly
disproportionate and was liable to be interfered with. Hence the Industrial
Court set aside the order of dismissal and directed reinstatement of the
petitioner with continuity of service. Liberty was granted to the respondent
to impose any other punishment than the punishment of dismissal for the
proved misconduct. The claim for back-wages was denied.
4. The employer has challenged the judgment of the Industrial Court
in its entirety in W.P. No.1448 of 2015.
The petitioner being aggrieved by the denial of the claim for back-
wages has challenged the aforesaid judgment to that extent in W.P.No.4101
of 2015.
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5. Shri M. I. Dhatrak, the learned counsel for the employer
submitted that the Industrial Court was not justified in coming to the
conclusion that the punishment of dismissal from service was
disproportionate in the context of the proved misconduct. He submitted that
the finding recorded by the Labour Court that the inquiry held against the
employee was fair and proper was confirmed by the Industrial Court. Thus
when the misconduct was held to be duly proved, there was no reason
whatsoever to interfere with the punishment of dismissal considering the
gravity of charges. According to him, the employer having lost confidence in
the employee, he could not be reinstated in employment by imposing a
lesser punishment. He relied upon the decision of the Honourable Supreme
Court in 2000 (9) SCC 521 U. P. State Road Transport Corporation vs.
Mohan Lal Gupta and ors.
He further submitted that during pendency of the proceedings,
the unit of the employer had become sick and proceedings under Sick
Industrial Companies (Special Provision) Act, 1985 had been initiated
against it. Hence even otherwise, there was no question of reconsidering the
aspect of reinstating employee in the service.
6. On the other hand, Shri C. R. Sharma, the learned counsel for the
employee submitted that the Industrial Court despite directing reinstatement
of the employee committed an error by disallowing the claim for back-wages.
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According to him, once it was found that the order of dismissal dated
02/09/2004 resulted in imposing the punishment that was shockingly
disproportionate, the employee was entitled to receive full back-wages. He
supported the other part of the order by which the services of the employee
were directed to be re-instated. In support of his submissions, the learned
counsel placed reliance upon decision of the Honourable Supreme Court in
(1979) 2 SCC 80 Hindustan TIN Works Pvt. Ltd. vs. Employees of M/s
Hindustan TIN Works Pvt. Ltd. and ors., (2000)9 SCC 451 Management,
Lokashikshana Trust No.2, Bangalore vs. Presiding Officer, Labour Court
and anr., (2003) 8 SCC 9 Dev Singh vs. Punjab Tourism Development
Corproation Ltd. And anr., (2013) 10 SCC 324 Deepali Gundu Surwase
vs. Kranti Junior Adhyapak Mahavidyalay (D.ED.) and ors. and (2015) 2
SCC 410 Collector Singh vs. L.M.L. Ltd. Kanpur. He therefore sought a
direction to receive the entire back-wages.
7. I have heard the respective counsel for the parties at length and I
have given due consideration to their respective submissions. The material
on record indicates that the Labour Court in its judgment dated 06/04/2009
recorded a finding as regards fairness of the inquiry. It held that the inquiry
conducted against the employee was fair and proper. This finding of the
Labour Court has been confirmed by the Industrial Court in paragraph 13 of
its judgment. The said finding recorded by both the Court has not been
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challenged by the employee. The only aspect that requires consideration is
with regard to the punishment imposed on the employee. While it is the case
of the employer that the punishment of dismissal of the employee by order
dated 02/09/2004 is legally correct, it is the case of the employee that this
punishment is shockingly disproportionate and therefore the employee
deserves to be given a lesser punishment. The ancillary issue is with regard
to the prayer for back-wages.
8. The charge against the employee was that while leaving the
factory premises on 19/06/2004, a bottle of soap solution was found in his
bag in his tiffin box. This charge that the employee had committed theft of
the property of the factory had been duly proved. According to the
employee, the value of the said soap solution was Rs.5/- and therefore the
punishment of dismissal from service was not warranted. According to the
employer, the aforesaid act on the part of the employee resulted in the
employer losing its confidence over the employee.
9. The learned counsel for the employer placed reliance on the
decision in U.P. State Road Transport Corporation (supra). In said case the
employee therein was charged with misconduct on the ground of
misappropriation resulting in some shortage of oil. After holding an inquiry,
the services of the employee therein came to be terminated. In proceedings
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challenging the order of termination, the finding of misconduct was
maintained. The order of termination was substituted by an order of minor
penalty. In that background it was observed by the Honourable Supreme
Court that as the employee therein have been found guilty of
misappropriation, in such event, the employer had lost confidence and
therefore it was not appropriate nor fair on the part of the Court to substitute
the said punishment and direct reinstatement. It was further observed that
the misconduct having been proved and the same being grave in nature, the
discretion in the matter of alteration of punishment could not have been
exercised.
In Collector Singh (supra)which decision was relied upon by the
learned counsel for the employee the charge therein was with regard to
throwing of jute/cotton waste balls on the Foreman. There was also
allegation that the concerned employee has abused the Foreman. While
considering this aspect of the matter, it was found that use of abusive
language had not been established in the apology letter written by the
employee. The incident of throwing the jute/cotton balls was by way of a
mistake. In that background, the Honourable Supreme Court observed that
the punishment of dismissal from service was harsh and hence it proceeded
to modify the same.
10. From the aforesaid it can be seen that the nature of misconduct
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has some bearing while considering the aspect as to whether punishment
imposed is disproportionate or not. In Collector Singh (supra) it was found
by the Honourable Supreme Court that the misconduct was with regard to
throwing jute/cotton waste balls and use of abusive language. It was
ultimately found that the charge regarding use of abusive language was not
established. Hence only the charge of throwing of jute/cotton waste balls
was proved. In these facts, punishment was held to be disproportionate.
Hence on that count the aforesaid decision is clearly distinguishable.
In U.P. State Road Transport Corporation (supra) the charge
was with regard to shortage in the quantity of oil. This charge which was
proved was found to be of a grave nature resulting in loss of confidence of
the employer. It was on that basis held that in the case of misappropriation
if the employer loses confidence in the employee, the punishment normally
should not be modified. This decision supports the submission of the
employer.
11. Thus on consideration of the entire material on record and the
finding recorded by the Labour Court which was confirmed by the Industrial
Court, the Labour Court was justified in holding that considering the gravity
of the charges proved, the employer had lost confidence in its employee. The
punishment of dismissal was therefore not interfered with by the Labour
Court. In the revisional jurisdiction under Section 44 of the Act of 1971,
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the Industrial Court was not justified in holding that the order passed by the
Labour Court was liable to be interfered with. As observed in U.P. State
Road Transport Corporation (supra) in such situation exercise of discretion
for altering punishment is not called for. In view of aforesaid I find that the
Industrial Court was not justified in setting aside the order of the Labour
Court. In that view of the matter, it would not be necessary to go into the
aspect of entitlement of the employee for back-wages.
12. As a result of aforesaid discussion, the following order is passed :
(i) The judgment of the Industrial Court dated 13/11/2014 in
Revision ULP No.32/2009 is set aside.
(ii) The judgment of the Labour Court in Complaint ULP
No.709/2004 dated 06/04/2009 is restored.
(iii) W.P. No.1448/2015 is allowed and W.P. No.4101/2015 stands
dismissed.
There shall be no order as to costs.
JUDGE
Asmita
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