Bombay High Court

M/S.Carbon Everflow Ltd vs Shri. R.A.Hange on 22 June, 2017

Bench: Rajesh G. Ketkar

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

                   Writ Petition NO. 6722 OF 2000

M/s.Carbon Everflow Ltd.                         ...Petitioner
         Versus
Shri. R.A. Hange                                 ...Respondent

                                ....
Mr.Atul   Damle,   Senior   Advocate   a/w.   Leena   Patil,   for   the 
Petitioner.
Mr.Susheel Mahadeshwar, Advocate for the Respondent.
                                ....

                               CORAM :   R. G. KETKAR, J.

                               DATE     :  22nd JUNE, 2017   
JUDGMENT:

1. Heard Mr.Atul Damle, learned Senior Counsel for the

petitioner and Mr.Susheel Mahadeshwar, learned counsel for

the respondent, at length.

2. By this Petition under Article 227 of the Constitution

of India, the petitioner, hereinafter referred to as the 'first

party', has challenged the judgment and award dated

20.7.2000 made by the learned Presiding Officer, Labour

Court, Nashik in Reference (I.D.A.) No.19/1989. By that order,

the Labour Court held that the respondent, hereinafter

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referred to as the 'second party', is entitled to reinstatement

with continuity of service, and one third of the back wages

w.e.f. 13.10.1987. The relevant and material facts giving rise to

filing of this Petition, briefly stated, are as under.

3. It is the case of the first party that the second party

along with Shri G.M. Shahane were assigned the job of

assembly /joinder of some "end chamber" to floating tube of

shell end tube heart exchanger. They damaged the equipment

costing Rs.1,30,000/-. Because of this, the first party suffered

financial losses as also the job could not be delivered to the

customers well in time. It is the case of the first party that the

act of the second party amounted to misconduct and

dishonesty in connection with employer's business, willful

damage to finished equipments and commission of acts

subversive of discipline. On 12.2.1987, the second party was

suspended pending enquiry. On 14.2.1987 charge sheet was

issued to the second party in respect of acts and omissions

amounting to misconduct. Domestic enquiry was held against

the second party and in pursuance thereof he was dismissed

from services.

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4. The Deputy Commissioner of Labour, Nashik

Division, Nashik made reference to the Labour Court for

adjudication of the Industrial Dispute. The second party

submitted statement of claim inter alia contending that he

was served with false charge-sheet which resulted in his

dismissal. The charge-sheet was issued only with a view to

victimizing him. It was further contended that in the first party

there was one Nashik Workers Union, affiliated to AIDUC, but

the workman took initiative in forming another union 'Sarva

Shramik Sangh" because of non-payment of adequate wages

and inhumane service condition prevailing in the first party.

The majority of other workmen followed the workmen which

had annoyed the first party. Th first party, therefore, decided

to take revenge against such persons involved in the activities.

The second party further contended that domestic enquiry was

not fair and proper. The findings recorded by the enquiry

officer are also perverse. The company while dismissing the

second party did not consider his past record. The punishment

of dismissal was shockingly disproportionate.

5. The first party filed its written statement Exhibit C-1

and resisted the claim made by the second party. The first

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party denied all the adverse allegations. It is the case of the

first party that the second party had committed grave and

serious misconduct which resulted in direct loss of

Rs.1,30,000/-. The enquiry which was held was fair and

proper and the charges were duly proved. As the charges were

serious, the punishment commensurate with the guilt was

awarded.

6. The Labour Court framed points. The parties led

evidence. After considering the evidence on record, by the

impugned award, the Labour Court has ordered reinstatement

of the second party as stated earlier. It is against this order,

the first party has filed present petition under Article 227 of

the Constitution of India.

7. In support of this Petition, Mr. Damle has taken me

through the impugned order. He submitted that the second

party was employed as a skilled workman and one Shahane was

employed as a semi-skilled workman. He submitted that the

second party along with Shahane was on duty in general shift

between 8:30 a.m. and 5:00 p.m. on 10.2.1987. At about 2:00

p.m. to 2:15 p.m., the second party and Shahane were doing

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the job of Indian Dyestuff Industries. They were assigned the

job of assembling the end chamber to the floating tube sheet of

the job at 2:00 p.m. The job broke due to uneven tightening

i.e. wrong handling by the second party. He submitted that

after considering the evidence on record, the Tribunal observed

in paragraph-17 that the second did not establish his defence

and the inference drawn by the company about the intentional

act on the part of the workman gets corroboration. Mr. Damle

submitted that in fact the second party did not adduce any

evidence before the enquiry officer. After holding that the

intentional act on the part of the second party is proved, the

Labour Court further observed in paragraph-21 that "It

appears that the workman did not intend to cause willful

damage." He submitted that said finding is clearly contrary to

the earlier finding recorded by the Labour Court in paragraph-

17.

8. Mr. Damle also relied upon the decision of Bharat

Heavy Electricals Ltd. vs. M. Chandrasekhar Reddy and

others, (2005) 2 SCC 481 to contend that while exercising

power under Section 11-A of the Act the Labour Court cannot

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act an appellate Authority over the enquiry report submitted by

the enquiry officer. He, therefore, submitted that the impugned

order deserves to be set aside.

9. On the other hand, Mr. Mahadeshwar supported the

impugned order. He has taken me through paragraphs-9, 10,

11, 12, 15, 17, 21 of the impugned order. Mr. Mahadeshwar

submitted that before the enquiry officer the first party

examined A.K. Kundu, Assistant Engineer. He deposed that the

second party was in the general shift between 8:30 a.m. and

5:00 p.m. He had assigned the second party and Shri Shahane

the assembling work of some I.D.I. Shell and Tube Exchanger,

drawing No.469/86. The second party and Shahane wrongly

tightened floating tube sheet and broke the floating tube sheet

at 4:30 p.m. They were aware that said job was to be

completed in the month of February and the target time was

January. The cost of the job in question was Rs.1,30,000/-.

The job was so broken that it could not be repaired and thus

the first party was put in embarrassing situation besides

financial loss. In the cross-examination by the defence

representative, it came on record that the job was not broken

by hammer but by tightening it wrongly.

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10. Mr. Mahadeshwar submitted that the first party also

examined Senior Engineer of the company Mr. Guha. He also

substantially deposed on the lines of the witness Kundu.

During cross-examination Mr.Guha admitted that he did not

see the second party and Shri Shahane doing the work in a

wrong manner. Mr. Mahadeshwar submitted that though both

the witnesses deposed that the second party and Shri

Shahane were given the job of assembling the end chamber to

the floating tube sheet, action was initiated only against the

second party. He submitted that the second party took

initiative in forming of Sarva Shramik Sangh and with to view

to victimizing him, the first party initiated the proceedings

against him. He also invited my attention to paragraph-21 to

contend that the Labour Court observed that the mistakes

intentional or otherwise occurred at the duty place and during

duty hours. In the alleged incident, the second party alone

was not involved but Shri Shahane was also responsible for

causing damage. However, the first party did not bring any

material on record as to what action was taken against said

Shahane. He submitted that under Section 11-A of the Act, the

Labour Court was justified in interfering with the penalty

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inflicted by the first party having regard to the nature of

misconduct. He, therefore, submitted that no case is made out

for interfering with the impugned order.

11. I have considered the rival submissions advanced by

learned Counsel appearing for the parties. I have also perused

the material on record. As noted earlier, the second party was

issued charge-sheet and domestic enquiry was held against

him. After considering the material on record the Labour Court

held in paragraph-19 that the enquiry conducted against the

second party was fair and proper and that the charges are

proved. The findings recorded by the enquiry officer are neither

perverse nor unjustified. In paragraph-17, the Labour Court

considered the oral as well as documentary evidence on record

and also considered the submission advanced by the second

party that there was no direct eye witness who actually

witnessed the second party wrongly performing the job. The

Labour Court also considered that the second party is a skilled

workman and Shahane is a semi-skilled workman. The Labour

Court also considered the fact that the breakage of job

occurred in 1984 and the witness had given reason for such

breakage. The relevant portion of paragraph-17 reads thus :

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"The witnesses are both engineers and being experts, their statements can not be ignored. The statements indicate that ordinarily if the care was taken and uneven tightening was avoided, the job would not break. Having held that the job was broken at the hands of the workman, a skilled workman and Shahane (Semi Skilled) it is for the workman to give some explanation for the damage or breakage caused. Had he given any explanation, it might have been accepted also. However, he chose to take a defence of total denial. The said defence is not proved and therefore the inference drawn by the company about the intentional act on the part of the workman gets corroboration."

(emphasis supplied)

12. In paragraph-18, the Labour Court noted that the

second party did not examine himself as a witness nor he

examined any witness. After considering the material on

record, the Labour Court recorded a categoric finding that "In

the result, I find that charges of willful damage to property,

which also amount to commission of act subversive of

discipline are adequately proved. The workman who is proved

to have been responsible for breakage of the article has chosen

to flatly deny the mistake, which smacks of want of honesty on

his part."

13. The Labour Court thereafter considered the second

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party's evidence at Exhibit U-11 before the Court. Second

party stated that as he changed the Union, first party started

harassing members of the sangh. He, however, admitted that

there is no evidence to show that earlier union was pro

management of the first party and, therefore, the first party

began to harass the members like him. Second party stated in

the examination-in-chief that Sangh was the union in 1988/89

which itself disproves the allegation in respect of Union as the

charge sheet was issued on 12.2.1987.

14. In paragraph-19, the Labour Court observed thus:

"19. The proceeding before me are that of a domestic enquiry, where strict rules of evidence do not come into play, and even hearsay evidence is admissible. The degree of proof required is not strict proof, but only preponderance of probabilities. Having considered the material on record in the light of the well settled principles, I am inclined to hold that the charges are proved and therefore the ultimate findings arrived at by the enquiry officer as a neither perverse nor unjustified."

15. The Labour Court thereafter proceeded to observe in

paragraph-21 thus:

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"21. Though the charges are proved, it is necessary to appreciate the actual allegations held as proved. The guilt proved was breaking some part of the instrument or the job. The cost of the job was Rs.1,30,000/- but then it was the cost of the entire article, when finished. The mistake, intentional or otherwise, occurred at the duty place, and during duty hours. It was not only the workman alone but one other fitter Shahane who was also held responsible for the damage. What happened to the action against said Shahane is not on record. Now, although, the workman had not honestly confessed his mistake, it appears that the workman did not intend to cause willful damage and get away this could not be possible because he could not have successfully surpriced the mistake or the fault in work. It was bound to be noticed sometime during the shift. This aspect has to be taken into account while appreciating the gravity of the misconduct."

16. A perusal of the findings recorded by the Labour

Court in paragraphs-17 and 18 clearly shows that the Labour

Court categorically recorded a finding that the first party had

established intentional act on the part of the second party in

the case. It also recorded a finding that the charges of willful

damage to property, which also amounts to commission of act

subversive of discipline are adequately proved. Despite holding

so, the Labour Court in paragraph-21 thereafter held that the

workman did not intend to cause willful damage. In my

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opinion, once the Labour Court having held that the first

party has established the charges on the basis of some

evidence, the Labour Court was not justified in recording

contrary finding.

17. In the case of Bharat Heavy Electricals (supra), the

Apex Court has considered Section 11-A of the Act as also

earlier decisions. In paragraph-23, the Apex Court referred to

the decision of Workmen v. Firestone Tyre & Rubber Co. of

India (P) Ltd, (1973) 1 SCC 813 and extracted paragraph-

32(9) thereof, which reads thus:

"... Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh, indicating victimisation."

"If a proper enquiry is conducted by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it has now power to differ from the conclusions arrived at by the management, will have to give very cogent reasons for not accepting the view of the employer."

18. In paragraph-24, the Apex Court referred its decision

in CMS Hospital Employees' Union v. Christian Medical

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College Vellore Assn., (1987) 4 SCC 691 and paragraph-14

was reproduced which reads thus:

"Section 11-A ... cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision."

19. Applying the tests laid down in the aforesaid

decisions to the facts of the present case as also the findings

recorded in paragraphs-17 and 18, I find that the Labour Court

committed serious error in passing the impugned award. The

Labour Court having held that the enquiry held against the

second party was fair and proper and the charges were duly

proved, was not justified in interfering with the penalty

imposed by the first party. Mr. Mahadeshwar submitted that no

action was taken against Shri Shahane. I do not find any merit

in this submission. It has come on record that Shri Shahane is

a semi-skilled workman and the second party is a skilled

workman. This aspect is considered by the Labour Court.