Rajendra Singh S/O Lalan Singh ... vs Western Coal Fields Limited, ...
2017 Latest Caselaw 1835 Bom

 Judgment                                              1                                  wp840.14.odt




                  
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR.


                               WRIT PETITION NO. 840 OF 2014


 Rajendra Singh S/o. Lalan Singh Chouhan,
 Aged about 64 years, Occupation : Nil, 
 Resident of Qtr. No.7/3, Bajaj Colony, 
 Tahsil & Tqluqa : Saoner, 
 DISTRICT : NAGPUR.
                                                                           ....  PETITIONER.

                                        //  VERSUS //

 1. Western Coal Fields Limited,
    (A Government of India Undertaking)
    Saoner Sub Area, Saoner, 
    DISTRICT : NAGPUR
    Through its Sub-Area Manager. 

 2. The Central Government Industrial 
    Tribunal-Cum-Labour Court, Nagpur,
    1st Floor, N.S. Building, Civil Lines, 
    NAGPUR - 440 001.
    Through its Presiding Officer. 
                                                       .... RESPONDENTS
                                                                     . 
  ___________________________________________________________________
 Shri S. Zia Quazi, Advocate for Petitioner. 
 Shri A.S.Mehadia, Advocate for Respondent Nos.1 and 2.  
 ___________________________________________________________________

                              CORAM : Z.A.HAQ, J.

DATED : APRIL 19, 2017.

CAW NO. 1163/2016.

Considering the grounds stated in the application, specially that

the petitioner is more than 67 years of age, the prayer for early hearing is

granted.

The Civil Application is allowed.

  Judgment                                              2                                  wp840.14.odt




 ORAL JUDGMENT : 



 1.               Heard. 

2. The petitioner/ employee has challenged the award passed by

the Central Government Industrial Tribunal answering the reference against

him and holding that the action of the management in dismissing him from

service is legal and justified.

3. The petitioner joined as Electrical Fitter Category-IV in the

employment of the respondent in 1971. From 1995 to 1997 the petitioner

was President of the Coal Mines Engineering Workers Association, a

registered Trade Union. On 27th July, 1996 the employer issued a notice

calling upon 71 employees to report on duty on 28th July, 1996 which was

Sunday and weekly off for the employees. The petitioner's name was not

amongst the 71 employees who were called upon to report on duty on 28th

July, 1996.

On 28th July, 1996 the respondent-employer issued chargesheet

to the petitioner with two charges :

i) The act of misconduct as per Clause 26.39 : Abetment of act

of misconduct.

ii) Misconduct as per Clause 26.40 : Deliberately spreading false

Judgment 3 wp840.14.odt

information/ rumour with a view to bringing about disruption

in company's work.

After conducting enquiry, the report was submitted by the

Enquiry Officer to the Disciplinary Authority on 11th September, 1996. Then

after completing the required formalities of sending the copy of enquiry

report and issuing show cause notice and receiving explanation of the

employee, the respondent-employer took a decision on 14th December, 1998

and dismissed the petitioner. The petitioner raised a dispute in the matter on

which the reference came to be made to the Industrial Tribunal.

4. The submission on behalf of the petitioner is that as far as the

charge of misconduct as per Clause 26.39 is concerned, it cannot be invoked

against the petitioner as the respondent-employer has not punished any other

employee for any misconduct and therefore, there cannot be abetment of any

act of misconduct.

As far as second charge is concerned, according to the

petitioner, it is vague and therefore, the punishment cannot be inflicted on

the basis of that charge.

5. The learned advocate for the respondent-employer has

submitted that the enquiry was conducted against 71 employees whom the

Judgment 4 wp840.14.odt

petitioner incited and some of those employees prayed for grant of pardon,

some of the employees were given warning and in case of some employees it

was found that they could not attend duty on 28th July, 1996 because of

some genuine difficulty. It is submitted that it cannot be said that action is

not taken against 71 employees and charge for misconduct as per Clause

26.39 was wrongly framed against the petitioner. It is submitted that the

Enquiry Officer conducted the enquiry and found that the petitioner is guilty

as both the charges are proved against him and the Tribunal has also

concurred with the findings of the Enquiry Officer and it is not open for this

Court to re-appreciate the evidence on record. To support the submission

reliance is placed on the judgment given in the case of Govt. of A.P. vs. Mohd.

Nasrullah Khan, reported in 2006(2) SCC 373.

It is argued that it was open to the employer to accept apology

of the erring employees and pardon them and only because it is done it

cannot be said that the petitioner is discriminated by dismissing him from

service. To support the submission reliance is placed on the judgment given

in the case of M/s. Obette Pvt. Ltd. vs. Mohd. Shafiq Khan, reported in AIR

2005 SC 3510.

It is submitted that the work of maintenance on holiday or

weekly off was a regular feature and the petitioner in his capacity as

President of the Trade Union incited 71 employees who were called upon to

Judgment 5 wp840.14.odt

report on duty on 28th July, 1996 (Sunday) because of which those 71

employees had not attended their duties and consequently the maintenance

work could not be done on Sunday and it was required to be done on the

working day which ultimately resulted in disruption of work. It is argued

that such illegal absenteesim which disrupted the work is taken seriously and

serious punishment for such misconduct is approved/ maintained by this

Court in the following judgments :

i) Judgment given in the case of B.A.N.S.K.C. Parikh General

Hospital Vs. Bombay Labour Union, reported in 2001 (89)

FLR 790,

ii) Judgment given in the case of Force Motors Ltd. Akurdi,

Pune Vs. S.S.Tungar, reported in 2008 (117) FLR 606,

iii) Judgment given in the case of Prabhakar Engineers Vs.

Ramchandra, reported in 2003 (2) Mh.L.J. 823.

It is submitted that the impugned award is passed on proper

appreciation of the evidence and legal position and the petitioner has not

made out any case which necessitates interference by this Court in the

extraordinary jurisdiction.

6. In reply, the advocate for the petitioner has submitted that the

Disciplinary Authority has not considered the past service record of the

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petitioner which is unblemished and the Tribunal has also not applied its

mind on this aspect and therefore, the decision of the management and the

impugned award are unsustainable. To support the submission, the learned

advocate for the petitioner has relied on the judgment given by the Division

Bench of this Court in the case of Mill Manager, Savatram Ramprasad Mills

Vs. Industrial Court, Nagpur, reported in 1987 (1) Bom. C.R. 517.

7. There is no dispute that the employer had issued notice on 27 th

July, 1996, calling upon 71 employees to report on duty on 28 th July, 1996

(Sunday/ weekly off). It is undisputed that the petitioner was President of

the registered Trade Union at that time. There is no dispute that the charge-

sheet was issued to those 71 employees as they had not reported for duty on

28th July, 1996. According to the petitioner, those 71 employees submitted

their explanation and tendered apology which was accepted by the employer

and no further enquiry was conducted. According to the employer the

enquiry was conducted against those 71 employees also and apology of some

employees was accepted, in case of some employees it was found that there

was genuine difficulty which prevented them from reporting on 28 th July

1996 and in case of some employees the explanation given for absence was

found to be genuine and in case of some employees warning was given.

Be that as it may, fact remains that any adverse action was not

taken against any one of those 71 employees. The employer has not placed

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anything on record to show that the disciplinary authority found that any of

those 71 employees was liable for punishment for misconduct. Though the

employer has tried to make out a case, that charge against some of the 71

employees was proved and they were let-off on pardon or warning, nothing

is pointed out to show the finding of misconduct by the competent authority.

If it is so, in my view, the charge of abetment of misconduct as per clause

26.39 cannot be said to be proved against the petitioner.

8. As far as second charge is concerned, the charge-sheet dated

28th July, 1996 which was given to the petitioner only reproduces clause

26.40 without specifying and giving details about the alleged false

information or false rumour because of which the work of the respondent/

employer was disrupted. It is well settled that punishment cannot be

inflicted on the basis of the vague charge.

9. Another relevant aspect is that neither the disciplinary Authority

nor the Industrial Tribunal has adverted to the point of past service record of

the petitioner though the most severe punishment is inflicted on him.

10. In view of the above, I find that the impugned award is

unsustainable so also the decision of the respondent/ employer to dismiss the

petitioner from service.

  Judgment                                              8                                  wp840.14.odt




                  Hence, the following order :

           i)     The impugned award is set aside. 
           ii)    It   is   held   that   the   action   of   the   respondent-employer   in 

dismissing the petitioner from service is illegal and unjustified.

iii) The order issued by the respondent-employer on 14th December, 1998 dismissing the petitioner from service is quashed.

iv) As the petitioner has surpassed the age of superannuation, the respondent-employer shall make available to the petitioner all the benefits and emoluments treating that the petitioner has retired on attaining age of superannuation.

v) The arrears of back wages shall be paid within three months, failing which the respondent/ employer shall pay interest on the amount of arrears of back wages @ 9% per annum, the interest being chargeable from 15th December, 1998 till the amount is paid to the petitioner.

vi) As far as the other benefits and emoluments are concerned, the same shall be made available to the petitioner within three months.

Rule is made absolute in the above terms. In the circumstances,

the parties to bear their own costs.

JUDGE

RRaut..