Balasaheb Kondiba Barathe vs Kinetic Engineering Ltd Thr Vice ...
2021 Latest Caselaw 7642 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                         WRIT PETITION NO. 1231 OF 2013

 Balasaheb Kondiba Barathe
 Age 50 years, Occu. Labour,
 R/o. Plot No.C, Bunglow No.13,
 Ambika Nagar, Kedgaon Deviche,
 Taluka and District Ahmednagar                          ... Petitioner
          Versus
 Kinetic Engineering Limited
 Nagar-Aundha Road, Ahmednagar
 Through its Vice President (Work)               ... Respondent
                                    ....
 Mr. K. M. Nagarkar, Advocate for the petitioner
 Mr. V. S. Bedre, Advocate for the respondent
                                    ....

                                       CORAM : R. G. AVACHAT, J.

RESERVED ON : 05th MARCH, 2021 PRONOUNCED ON : 10th JUNE, 2021

O R D E R :-

. The challenge in this writ petition is to the judgment and

order dated 07.09.2012, passed by the Member, Industrial Court,

Ahmednagar, in Revision Application (ULP) Nos. 36 and 38/2010.

2. The petitioner joined services with the respondent as

'Machine Operator', in July 1983. During lunch break on

14.07.1995, a cockroach was found in the food provided in the

canteen of the respondent. There was, therefore, affray. The

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respondent issued the petitioner show cause notice. Domestic

enquiry was conducted against the petitioner, alleging to have been

involved in the affray and other misconduct on the factory premises.

The domestic enquiry went against the petitioner. He came to be

terminated from service on 06.04.1997. The petitioner, therefore,

filed Complaint (ULP) No.50 of 1997. The Labour Court, vide its

judgment and order dated 27.08.2010, allowed the complaint,

holding the respondent employer to have indulged in unfair labour

practices in terms of Item 1(a),(b) and (g) of Schedule-IV of the

Maharashtra Recognition of Trade Unions and Prevention of Unfair

Labour Practices Act, 1971 (MRTU & PULP Act, 1971). The

termination of the petitioner was set aside. The respondent was

directed to reinstate him in service, without back wages.

The petitioner by filing Revision Application (ULP)

No.38 of 2010, challenged the order of the Labour Court before the

Industrial Tribunal to the extent of refusing to grant him back wages.

The respondent too, by filing Revision Application (ULP) No.36 of

2010, challenged the order of the Labour Court granting the

petitioner relief of reinstatement. The Member, Industrial Court,

Ahmednagar, vide his common judgment and order dated

07.09.2012, dismissed the revision application of the petitioner. It

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allowed the revision application preferred by the respondent,

dismissing the complaint filed by the petitioner. The petitioner is

therefore before this Court.

3. Shri K. M. Nagarkar, learned Advocate for the petitioner

would submit that until 1995, 'Sarva Shramik Sangh' was the

approved union at the factory of the respondent. The respondent,

however, entered into service agreement with 'Bhartiya Kamgar

Sena'. The agreement was against the interest of the workers. The

petitioner took part in the movement to start another union, namely

'Association of Engineering Workers'. The respondent did not want

another union. With a view to ensure the petitioner's termination

from service, domestic enquiry was initiated against the petitioner.

The Labour Court rightly allowed the Complaint (ULP) No.50 of

1997 filed by the petitioner. The Labour Court, however, should have

granted the petitioner relief of back wages. The impugned order

passed by the Industrial Court is perverse. The learned Advocate

would further submit that a worker, namely Shri Thube, who was

alleged to have been involved in the affray, had not been subjected

to a domestic enquiry. He has been continued in service with the

respondent at the instance of the labour union, which finds favour

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with the respondent. Similarly placed workman, namely, Gulabrao

Pawar has been reinstated in service by virtue of order passed in

judicial proceedings. The petitioner is, therefore, entitled for similar

treatment. Learned Advocate has also urged for grant of full back

wages on the ground that the respondent dealt the petitioner with

discrimination. He could have been in service like one Shri Thube.

The petitioner was not gainfully employed. The learned Advocate,

ultimately, urged for allowing the writ petition.

4. Shri V. S. Bedre, learned Advocate for the respondent,

would on the other hand, submit that the Industrial Court has rightly

upset the order of the Labour Court. The Labour Court, without

finding the punishment imposed on the petitioner, to be grossly

disproportionate, passed the order of reinstatement. The labour

Court cannot sit in appeal against the decision in domestic enquiry.

At the most, the order of dismissal may be converted into discharge.

The respondent was ready to offer the petitioner a sum of

Rs.1,00,000/- (Rupees One Lakh) towards one time settlement. The

learned Advocate brought to my notice the order passed by this

Court on 08.08.2018, wherein it has been prima-facie observed that

the petitioner did not have a case to succeed in the petition. The

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learned Advocate also placed reliance on the judgment of this Court

dated 31.08.2016, passed in Writ Petition No.5575 of 2016

(Ambadas s/o Pandurang Gurav/Waghmare vs. Kinetic Engineering

Ltd.) and urged for dismissal of the writ petition.

5. The petitioner was serving as Machine Operator with the

respondent. An affray took place on the factory premises of the

respondent on 14.07.1995. A reason, therefor, was said to be a

cockroach having been found in the food served to one of the

workers in the canteen. The Labour Court, on appreciating the

matter before it, found that the incident was the outcome of the

natural reaction of the workers. In view of the Labour Court, the

punishment of termination of service was disproportionate.

6. After having perused the judgment of the Labour Court, I

find that the Member, Industrial Court, ought not to have interfered

therewith. In my view, the reasons given by the Industrial Court to

upset the order passed by the Labour Court are perverse. The

Industrial Court observed, "when an enquiry is conducted by the

employer against the delinquent employee question of victimization

under no circumstances can arise, and therefore, question of

attracting Item - 1(a) of Schedule IV will not survive. Same is the

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case so far as Item - 1(b) is concerned, because when process of

enquiry is followed by issuing charge-sheet, the action on the part of

the employer under no circumstances can be termed as not in good

faith or colourable exercise of employer's right. When the learned

Judge, Labour Court has held the enquiry to be fair and proper and

the findings as not perverse, question of discussing or scrutinizing

the evidence recorded before the enquiry officer to draw some other

conclusion amounts to travelling beyond the jurisdiction vested in it.

When the learned Judge, Labour Court drawn the finding that the

findings drawn by the enquiry officer are not perverse he has got

very limited jurisdiction to interfere with the punishment and the

question of interference comes or arises only when the punishment is

held to be shockingly disproportionate. The Labour Court did not

find the punishment imposed on the petitioner to be shockingly

disproportionate.

7. The Labour Court had considered the fact that one

Shri Thube, similarly placed workman, had not been subjected to

domestic enquiry. He was continued in service on the intervention of

the union, which found favour with the respondent. When the

respondent allows one of the similarly placed workers to continue in

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service, this fact itself disclosed that the misconduct attributed to the

petitioner was not so serious so as to invoke punishment of dismissal

from service. The petitioner has every reason to contend that he has

been discriminated by the respondent. Moreover, one Gulabrao

Pawar, similarly placed workman, was subjected to domestic inquiry

for the very reason. The Labour Court ordered his reinstatement. The

decision of the Labour Court has been confirmed by the Industrial

Court in revision and then this Court in Writ Petition No.2378 of

2010 and Letters Patent Appeal, as well (L.P.A.No.2 of 2014 -

decided on 15.04.2014). The petitioner, thus, becomes entitled for

similar treatment. The impugned order is therefore liable to be set

aside.

8. On the question of grant of back wages, the Labour

Court did not grant the petitioner, relief. It has been in the evidence

of the petitioner that he was not gainfully employed. Post his

dismissal from service to make both the ends meet, he did the job

wherever and whenever he got it.

9. In my view, the petitioner deserves to be granted 50% of

the back wages with all consequential benefits. The respondent gave

the petitioner differential treatment. When the Labour Court has

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directed his reinstatement, the respondent challenged the said order

only with a view to buy time and see that the petitioner remains out

of service.

10. True, the respondent may have a statutory right to

challenge the order of the Labour Court. The facts and

circumstances, however, indicate that the respondent wanted the

petitioner to be out of its employment. The submission of the

learned Advocate for the respondent that order of dismissal may be

converted into discharge, the respondent is ready to pay the

petitioner a sum of Rs.1,00,000/- (Rupees One Lakh) and something

more, if so directed towards full and final settlement, cannot be

accepted in the facts and circumstances of the case. The respondent

would also not be benefited by placing reliance on the judgment in

the case of Ambadas (supra). I have perused the said judgment to

find quiet distinguishable on facts. The petitioner therein was found

to be sleeping on duty in Heat Treatment Department. The

punishment of dismissal from service could not be termed to be

shockingly disproportionate. In the facts and circumstances of the

said case, the dismissal of the petitioner therein was converted into

an order of discharge.

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11. For the reasons given herein above, the petition

succeeds. The writ petition is allowed in terms of prayer clause [A].

The order passed by the Labour Court, is modified to the extent of

refusal to grant back wages.

12. The respondent is directed to reinstate the petitioner in

service, if he has not attained the age of superannuation, and pay

him 50% back wages and all the consequential benefits from the

date of the order passed by the Labour Court, Ahmednagar, in

Complaint (ULP) No.50 of 1997.

[ R. G. AVACHAT, J. ]

SMS

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