Bombay High Court
Director Handmade Paper Institute Pune vs Prashant Raghunath Kulkarni And Ors on 19 December, 2023
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2023:BHC-AS:38302
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1175 OF 2022
WITH
INTERIM APPLICATION (ST.) NO. 28058 OF 2023
Director Handmade Paper Institute, Pune ...Petitioner
V/s.
Prashant Raghunath Kulkarni & Ors. ....Respondents
WITH
WRIT PETITION NO. 1178 OF 2022
WITH
INTERIM APPLICATION (ST.) NO. 28057 OF 2023
Director Handmade Paper Institute, Pune ...Petitioner
V/s.
Subhash Nivrutti Pawar and Ors. ....Respondents
_______
Mr. Kiran Bapat Senior Advocate i/by. Mr. Gaurav Gawande, for the
Petitioner.
Mr. Nitin Kulkarni, for the Respondents.
________
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CORAM : SANDEEP V. MARNE, J.
Resd. On : 11 December 2023.
Pron. On : 19 December 2023.
JUDGMENT :
1. Petitioner No.1-Institute is aggrieved by Judgement and
Order dated 15 November 2021 passed by the Industrial Court, Pune
in Revision Application (ULP) No. 218 of 2017 and 219 of 2017
whereby the Industrial Court has reversed the decision of the Labour
Court to the extent of proportionality of punishment and has directed
reinstatement of Respondents with 50% back wages.
2. Briefly stated, facts of the case are that are that Handmade
Paper Institute is run and operated by the Maharashtra State Khadi and
Industrial Board, which is established under the provisions of Bombay
Khadi Village Industries Act, 1960. It is the case of the Respondents
that the Petitioner No.1-Institute has Production Division, Research
Division and Training Division. Respondent in Writ Petition No. 1175
of 2022 (Prashant Raghunath Kulkarni) joined the services of
Petitioner No.1-Institute on the post of Junior Supervisor on 18 July
1994. His last drawn wages were Rs. 6250/- per month. Respondent in
Writ Petition No. 1178 of 2022 (Subhash Nivrutti Pawar) joined the
services of Petitioner No.1- Institute as Junior Supervisor with effect
from 01 November 1988. His last drawn wages were Rs.7200/- per
month.
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3. It is the case of the Respondents that with effect from 1
June 2010, Petitioner No.1-Institute handed over Production Division
to a Contractor and under the terms of the Contract, the Contractor
was to retain the existing workers and staff of Petitioner No.1-Institute.
The Respondents and other employees working in Production Division
of the Institute were not happy about the said arrangement and it
appears that various correspondence was made by the employees. It is
the case of the Petitioner No.1-Institute that Respondents started
agitations and refused to perform the allotted work on the demand that
their service related grievances must be redressed. It is claimed by the
Institute that on 2 May 2011 Respondents sat in front of the office of
its Director. On 13 May 2011, show cause notices were issued to the
Respondents as to why disciplinary action should not be initiated
against them. By Orders dated 2 June 2011, services of Respondents
came to be terminated. The Respondents approached the Labour Court
by filing Complaint (ULP) No. 175 of 2011 and 174 of 2011
challenging the termination orders. Petitioners opposed the complaint
by filing their written statement and showed willingness to prove the
allegations in the termination orders. Petitioners led evidence in
support of the allegations by examining Sanjeev Shantaram Shewale
and Shri Bhanvarsingh Shankarsingh Gahalot. The Respondents
examined themselves in support of their contentions. The Labour
Court delivered Judgement and Order dated 28 March 2016 partly
allowing the Complaints and directing the Petitioner to reinstate the
Respondents with continuity and 25% backwages. The Labour Court's
decision dated 28 March 2016 was challenged by Petitioners before the
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Industrial Court by filing Revisions which came to be partly allowed by
Judgement and Order dated 4 July 2016. The Industrial court
confirmed the Order passed by the Labour Court to the extent of
reinstatement. The direction for payment of backwages was set aside.
Both, Petitioner as well as Respondents approached this Court
challenging the decisions of the Industrial Court dated 4 July 2016. By
its order dated 20 October 2016, this Court set aside the order of the
Labour Court dated 28 March 2016 as well as of Industrial Court dated
4 July 2016 and remanded the complaints to the Labour Court for fresh
decision. Accordingly, the Labour Court proceeded to decide the
complaints filed by Respondents afresh. By its Judgement and Order
dated 17 April 2017, the Labour Court dismissed both the complaints.
Respondents approached the Industrial Court, Pune by filing Revision
Application (ULP) No. 218 of 2017 and 219 of 2017 challenging the
orders passed by the Labour Court on 17 April 2017. The Industrial
Court has delivered Judgement and Orders dated 15 November 2021
by setting aside the decision of the Labour Court only to the extent of
proportionality of penalty and has set aside the punishment of dismissal
with further directions to reinstate the Respondents in service with
50% backwages. Petitioners are aggrieved by Judgement and Order
dated 15 November 2021 passed by the Industrial Court and have
filed the present petitions.
4. Appearing for petitioners, Mr. Bapat the learned
senior advocate, would submit that the Industrial Court has erred in
reversing the findings recorded by the Labour Court. That the scope of
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interference in exercise of revisionary powers by the Industrial Court
are in a narrow compass and that the Industrial Court does not sit as a
court of appeal. That jurisdiction under Section 44 of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 (MRTU & PULP Act) can be exercised only when
an Order is perverse or that the findings cannot justify conclusion of
Labour Court. In support of his contentions, Mr. Bapat would rely
upon the Judgments of this Court in M. K. Bhuvaneshwaran V/s. M/s.
Premier Tyres Ltd. And another 2001 (2) Mh.L.J. 84 and Mahila
Griha Udyog Lijjat Papad Vs. Kamgar Congress and others 1983 1
LLM 643.
5. Mr. Bapat would take me through the findings recorded by
the Labour Court in support of his contention that the Labour Court
has considered the entire evidence on record to hold that the
misconduct alleged against the Respondents is successfully proved
before the Labor Court by the Petitioners. Referring to the findings
recorded by the Industrial Court, Mr. Bapat would submit that the
Industrial Court has not disturbed the finding of guilt recorded by the
Labour Court, but has erroneously proceeded to set aside the penalty of
termination (dismissal), holding the same to be disproportionate. He
would submit that the Industrial Court has erroneously assumed that
the misconduct alleged against the Respondents was founded only on
the incident of 2 May 2011. That the misconduct alleged against the
Respondents was on account of series of his actions where they
repeatedly refused to perform the allotted work. That the said aspect is
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totally ignored by the Industrial Court while erroneously holding that
the punishment of dismissal is disproportionate. He would submit that
if an employee repeatedly refuses to perform duties and indulges in
repeated agitations, the employer would be left with no other
alternative but to terminate his services with a view to ensure smooth
working of the Petitioner-Institute.
6. Mr. Bapat would further submit that the Petitioner-
Institute is otherwise closed and is no more functional since the year
2014. That all other employees have opted for voluntary retirement in
view of Settlement entered into with the Petitioners. That therefore the
directions to reinstate Respondents in service can otherwise not be
implemented. Lastly, Mr. Bapat would submit that even though
Respondents are found guilty of serious misconduct, the Petitioners are
willing to offer them the same benefit of voluntary retirement as are
granted to the other employees as per the Memorandum of Settlement.
However, according to Mr. Bapat, they can neither be reinstated, nor be
paid any backwages. He would pray for setting aside the orders passed
by the Industrial Court.
7. Per contra Mr. Kulkarni, the learned counsel appearing for
the Respondents would oppose the petitions and support the Order
passed by the Industrial Court. He would submit that the scope of
Revision under Section 44 of the MRTU & PULP Act empowers the
Revisionary Court to correct the error apparent on the face of the
record in the Order of the Labour Court, or to set aside the findings if
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found perverse. In support of his contention, he would rely upon the
judgment of this Court in Sadanand Ramesh Samsi Vs. Kirloskar
Cummins Ltd. and others 2003 (2) L.L.N. 484.
8. Mr. Kulkarni would further submit that the Respondents
are given discriminatory treatment by selectively terminating their
services when infact several employees of the Petitioner No.1-Institute
were agitating against unlawful actions of the Management. He would
invite my attention to the letter dated 25 April 2011 addressed by as
many as nine employees by which they had declared intention of non-
cooperation in the event of refusal to redress grievances of the
employees. He would submit that though nine employees were
agitating against the action of non-management by adopting non-
cooperation movement, only two employees (Respondents) were
selectively discriminated and terminated from services. Taking me
through the evidence of the management witness, Mr. Kulkarni would
show an admission that Shri. R.T. Kankal and Shri. Rajaram Ingale
continued to remain in service despite taking part in agitations. Mr.
Kulkarni would submit that imposition of extreme penalty of
termination was not warranted for singular act of agitation by
Respondents on 2 May 2011. This aspect has rightly been considered
by the Industrial Court holding the punishment to be shockingly
disproportionate. That Respondents have not committed any positive
act of misconduct but have been erroneously implicated in false
allegations solely with the object of ensuring their termination from
services.
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9. Mr. Kulkarni would contest the claim of Mr. Bapat that a
closure has been effected in respect of Petitioner No.1-Institute. He
would submit that the production activities of Petitioner No.1-Institute
are still in progress and that therefore the Respondents can be
reinstated. He would submit that tendering of resignations by other
employees is inconsequential and would have no effect on the rights of
the Respondents to be reinstated in service. He would pray for
dismissal of the petitions.
10. Rival contention of the parties now fall for my
consideration.
11. After remand of proceedings by this Court, the Labour
Court has decided Complaints filed by both the Respondents and by its
decision dated 17 April 2017 has proceeded to dismiss both the
Complaints, holding that the termination of Respondents was not
illegal. The Labour Court had framed specific Issue No.4 as to
"Whether Respondents proved alleged misconduct of complainant?".
The issue was answered by the Labour Court in affirmative. The
Industrial Court has not disturbed the finding of the Labour Court that
the allegations of misconduct are proved by the Petitioner No.1-
Institute before the Labour Court. The only ground on which the
Industrial Court has interfered is the aspect of proportionality of
penalty. The Industrial Court has found the termination (dismissal) to
be shockingly disproportionate to the misconduct proved. It is by
invoking the doctrine of proportionality that the termination order has
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been set aside by the Industrial Court. The Respondent-employees
have not challenged the decision of the Industrial Court. Therefore, I
need not go into the issue of availability of evidence for proving
misconduct or into the issue as to whether the finding of guilt is
perverse or not. I proceed on a footing that the misconduct alleged
against the Respondents has been proved by the employer before the
Labour Court. The short issue that therefore arises for consideration is
whether the findings recorded by the Industrial Court about
proportionality of penalty can be sustained.
12. Both the sides have cited judgments in support of
their respective contentions with regard to the scope and ambit of the
Revisional Court to interfere in the findings recorded by the Labour
Court which needs no reiteration. That Revisional Court does not sit in
appeal over the findings recorded by the Labour Court. It can interfere
only if the findings recorded by the Labour Court are either totally
perverse or there is any glaring error apparent on the face of the record
in the order of the Labour Court. Since there is no disagreement
between the parties on this broad principle, it is not necessary to discuss
the judgments of this Court in M.K. Bhuvaneshwaran (supra) and
Mahila Griha Udyog Lijjat Papad (supra) relied upon by Petitioners
and Sadanand Ramesh Kochar (supra) relied upon by the Respondents.
13. Perusal of the Orders terminating the services of
Respondents would indicate that the employer has resorted to
terminate the services since Respondents on the count of repeated
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indulgence in agitations. The employer has considered the act of the
Respondents sitting in front of the office of the Director to be gross
misconduct. The employer has also recorded a finding that since the
Respondents were working as Junior Supervisors, their action in
refusing to work was also affecting the other labourers working under
them. The termination order refers to action of the Respondents in
merely signing the muster roll and not performing any work. The
Petitioner No.1-Institute has therefore held the Respondents
responsible for causing financial losses. As observed above, the entire
misconduct alleged in the termination letters has been proved before
the Labour Court and the said finding is not disturbed in any manner
by the Industrial Court. The issue is whether the penalty of termination
from service is warranted for misconduct alleged and proved against the
Respondents.
14. One of the factors considered by the Industrial Court for
holding the penalty to be disproportionate is the factum of
continuation of employment of Shri. R. T. Kankal and Rajaram Ingale,
who had also signed the protest letters. It clearly appears from the
evidence as well as the findings recorded by the Industrial Court that
only two employees viz. Respondents came to be terminated from
service though other employees had also agitated against the policies
adopted by the Petitioner No.1-Institute. It may be true that Petitioner-
Employer considered the gravity of Respondents' misconduct to be
more serious than the other employees. However, the fact remains that
only the two Respondents were ultimately terminated from service
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even though several other employees were also agitating in respect of
the policies of the Petitioner No.1-Institute. In that view of the matter,
though misconduct committed by Petitioners, in ordinary course,
cannot be taken lightly, it cannot be said that the finding of
disproportionality of penalty so perverse that this Court need to
interfere in the same.
15. Thus, I have before me two Respondents whose
misconduct is proved before the Labour Court and the finding of the
Labour Court has attained finality on account of the same being upheld
by the Industrial Court. Though the Industrial Court has held the
punishment to be disproportionate, it has not suggested any other
penalty nor has given opportunity to the employer to impose any other
penalty in place of dismissal. This appears to be a glaring error on the
part of the Industrial Court. If the penalty is found to be
disproportionate, the employer must be given an opportunity to
impose a lesser penalty. In appropriate cases and with the view to
shorten the litigation, in appropriate cases the Courts/Tribunals can
suggest less harsher penalty on the employee. In the present case,
however, the end result of the order of the Industrial Court is such that
Respondents are allowed to go scot-free, even though misconduct is
ultimately proved against them.
16. In my view, it would not be appropriate to remain the
proceedings before the employer to impose lesser penalty considering
the twin factors of long passage of time and voluntary retirement opted
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by majority of employees and possible dysfunctionality of Petitioner
Institute. It has come on record that most of the employees of the
Petitioner No.1-Institute have been granted retirement in pursuance of
Memorandum of Settlement. Therefore, equities can be balanced if the
termination orders are set aside only for the purpose of grant of benefit
to the Respondents of the Memorandum of Settlement executed with
the other employees.
17. Therefore, the order passed by the Industrial Court
directing reinstatement with 50% backwages is unsustainable and is
required to be set aside. Instead, the Respondents can be reinstated only
for the purpose of grant of benefits under the Memorandum of
Settlement dated 10 October 2019. The Petitioner need to compute the
amounts payable to the Respondent-Employees by considering them to
be in service as on 10 October 2019 and such amount can be paid to
the respondents as full and final settlement.
18. I therefore proceed to pass the following order :
(i) The Judgment and order dated 15 November 2021
passed by the Industrial Court in Complaint (ULP) No.
218 of 2017 and 219 of 2017 is modified by directing that
Respondents shall be notionally reinstated in service for
the limited purpose of offering them voluntary retirement
under the Memorandum of Settlement dated 10 October
2019.
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(ii) Respondents shall stand voluntarily retired from services
of Petitioner-Institute w.e.f. 10 October 2019;
(iii) The amounts payable under the Memorandum of
Settlement dated 10 October 2019 shall be paid by
Petitioner-Institute to Respondents within 2 months.
(iv) Petitioner-Institute shall pay to Respondents interest @
6% p.a. on the amounts payable under Memorandum of
Settlement w.e.f. 10 October 2019 till the date of actual
payment.
19. With above directions the Writ Petitions are disposed of
without any order as to costs. Interim Applications pending therein
also stand disposed of.
SANDEEP V. MARNE, J.
