Bombay High Court
Keshav Raghunath Matkar vs State Of Mah. & Anr on 30 September, 2016
Bench: R.V. Ghuge
WP/1453/2008
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1453 OF 2008
Keshav Raghunath Matkar,
Age 52 years, Occ. Service
R/o Kailashnagar, Aurangabad. ..Petitioner
Versus
1. State of Maharashtra
2. Executive Engineer,
MSEB, R-1 Division,
Zone Office, Mill Corner,ig
Aurangabad. ..Respondents
...
Advocate for Petitioner : Shri D.R.Markad
AGP for Respondent 1 : Shri Kaldate S.D.
Advocate for Respondent 2 : Shri U.S.Malte
a/w Smt. Pooja Deshmukh
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: September 30, 2016
...
ORAL JUDGMENT :-
1. Learned Advocates for the litigating sides do not have any
objection, if this Court hears this matter.
2. The petitioner is aggrieved by the Part II award dated
31.10.2000, because though Reference (IDA) No.44 of 1989 is
answered in the affirmative setting aside the dismissal of the
respondent, w.e.f. 17.1.1984 and granting reinstatement with
WP/1453/2008
continuity of service, he has been deprived of backwages. The
punishment has been modified by the Labour Court and stoppage of
three annual increments permanently from the date of termination is
the substituted punishment.
3. The petitioner had challenged the Part I award dated
2.4.1991, upholding the enquiry and the findings of the Enquiry
Officer in Writ Petition No.2464 of 1998. Similarly, the respondent
had challenged the Part II award dated 31.8.2000 in Writ Petition
No.3771 of 2001. By judgment dated 9.10.2002, both these petitions
have been dismissed, vide which, the Part I award as well as the Part
II award have been sustained.
4. This Court, by a detailed order dated 4.3.2008, has refused
interim relief to the petitioner, while admitting the petition.
5. I have heard the strenuous submissions of Shri Markad on
behalf of the petitioner and Shri Malte, on behalf of the respondent.
6. The grievance of the petitioner is that though the charges of
unruly behaviour, instigating the other workers to disobey the lawful
orders of the superiors, switching off the electricity supply and
compelling the other workers to stop working have been proved, the
petitioner has been acquitted for the offence punishable under
WP/1453/2008
Section 302 and 304 of the Indian Penal Code by the learned Judicial
Magistrate F.C. vide its judgment dated 3.8.1986 in Criminal Case
No.116 of 1980. He, therefore, submits that the respondent /
employee could not have acted on the Enquiry Officer's report
holding the petitioner guilty and would not have imposed any
punishment on him.
7. He further submits that though the Labour Court has rightly
concluded that
the punishment of dismissal is
disproportionate, it could not have altered the punishment and could
shockingly
not have converted the dismissal into permanent stoppage of three
annual increments and deprivation of backwages. He further submits
that when he was acquitted by the Court of Criminal jurisdiction, the
respondent could not have punished the petitioner on the basis of an
enquiry.
8. Learned Advocate appearing for respondent No.2 submits that
the enquiry conducted against the petitioner was subjected to
challenge in the reference proceedings. Two issues were framed with
regard to the fairness of the enquiry and the findings of the Enquiry
Officer. By Part I judgment, dated 2.4.1997, the enquiry was held to
be fair and proper and the findings were sustained. This Part I award
has been challenged by the petitioner in Writ Petition No.2464 of
1998, which has been dismissed.
WP/1453/2008
9. He submits that the impugned part II Award was challenged by
the respondent in Writ petition No.3771 of 2001, which has been
dismissed by this Court. He, therefore, prays for the dismissal of the
petition.
10. Having considered the submissions of the learned Advocates, it
appears from the record that the Part I award of the Labour Court,
dated 2.4.1997, has been sustained by this Court.
11. In so far as the jurisdiction of the Labour Court to modify the
proportionality of the punishment is concerned, the said issue is no
longer res integra. The Honourable Supreme Court in the matter of
The Workmen of Firestone Rubber and Tyre Company Vs. The
Management and others [(1973) 1 SCC 813], has concluded that
Section 11A of the Industrial Disputes Act, 1947 gives adequate power
to the Labour Court or the Tribunal as the case may be, to suitably
modify the punishment, so as to ensure that the punishment
commensurate to the gravity and seriousness of the misconduct
proved is awarded. On this count, the submissions of the petitioner
deserve to be rejected.
12. In so far as the acquittal of the petitioner is concerned, it is
settled law that the criminal proceedings vis-a-vis the disciplinary
WP/1453/2008
proceedings are conceptually distinct and different. Acquittal in
criminal proceedings would not ipso facto result in exoneration of
the delinquent from disciplinary proceedings. As such, the
submissions of the petitioner that because he has been acquitted, no
punishment should be awarded, is an unsustainable contention.
13. There is no dispute that the misconducts referred to herein
above, have been held to be proved against the petitioner. In fact,
major punishment.
riotous, disorderly, indecent or unruly behaviour in itself invites a
Forcing other workers to strike work and
switching of the electricity supply can be said to be grave mis-
conducts. The issue of setting aside the dismissal order cannot be
reopened, considering the judgment of this Court dated 9.10.2002.
14. As such, in my view, the reduced punishment vide the
impugned award, cannot be termed as being a shockingly
disproportionate punishment. The Honourable Supreme Court in the
matter of Damoh Panna Sagar Rural Regional Bank and another Vs.
Munna Lal Jain [2005 (104) FLR 291], has concluded that unless the
punishment awarded is shockingly disproportionate, there can be no
interference in the quantum of punishment. It is further concluded
that merely if the punishment appears to be disproportionate and is
not shockingly disproportionate, no interference is called for.
WP/1453/2008
15. In my view, the punishment awarded to the petitioner by the
Labour Court in the impugned award cannot be termed as
disproportionate, much less shockingly disproportionate. This
petition is devoid of merits and is, therefore, dismissed. Rule is
discharged.
( RAVINDRA V. GHUGE, J. )
...
akl/d
