[Cites 3, Cited by 0]
Bombay High Court
Deepak Prabhu vs Chairman And Managing Director And Anr on 20 January, 2026
2026:BHC-OS:1542
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2736 OF 2013
Deepak Prabhu ...Petitioner
V/s.
Chairman and Managing Director, Air
India Limited (formerly known as
National Aviation Company of India
Ltd.) and Anr. ...Respondents
______________
Mr. Deepak Prabhu, Petitioner in-person.
Mr. Mihir Desai, Senior Advocate with Mr. Shushrut Desai and Ms. Ayesha
Pinto i/b. M/s. Saamya Partners for Respondent No.1.
Mr. Shailesh S. Pathak for Respondent No.2.
______________
CORAM: SANDEEP V. MARNE, J.
RESERVED ON: 9 JANUARY 2026.
PRONOUNCED ON: 20 JANUARY 2026.
JUDGMENT:
1. By this Petition, Petitioner challenges Part-II Award dated 31
March 2011 passed by the Presiding Officer, Central Government Industrial
Tribunal No.2, Mumbai, in Reference No.CGIT-2/27 of 2010 to the extent
of non-grant of relief of reinstatement with full backwages by setting aside
the dismissal order. The Tribunal instead has merely modified the
punishment of dismissal by directing that the dismissal would be with
retirement benefits in full.
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2. The Petitioner joined the services of the Respondent-Air India
Limited on 23 July 1986 as Storekeeper. He was confirmed in service on 1
March 1987. In the year 1992, he was promoted to the post of Senior
Storekeeper. Petitioner was an active member of Air India Employees
Guild, the recognised Union. On 18 January 1996 a charge-sheet was
issued to the Petitioner alleging neglect of work resulting in poor output
and being found missing from duties without prior approval of superiors. It
was further alleged that during 27 November 1995 to 15 December 1995,
Petitioner was reporting late for duties. It was further alleged that on 8
December 1995, Petitioner was found to be in the business of passport and
upon being questioned, he arrogantly responded stating that he had the
freedom of doing private work during tea time. The Petitioner responded to
the charge-sheet and denied the allegations. The Respondent-Air India
initiated disciplinary enquiry against the Petitioner. Alleging that the
enquiry was not conducted in accordance with the prescribed procedure,
the Petitioner moved the Conciliation Officer. During conciliation
proceedings a settlement was signed and according to the Petitioner, a de
novo enquiry was required to be conducted by re-institution of enquiry
committee. However, instead of conducting de novo enquiry, the
Respondent-Air India issued letter dated 20 January 1998 stating that
Certified Standing Orders had become applicable and accordingly
allegations in the charge-sheet dated 18 January 1996 constituted
misconduct under the enumerated clauses of the standing order. The
Petitioner was placed under suspension on 20 February 1998. Another
charge-sheet dated 18 May 1998 was issued alleging six charges. The
Petitioner denied the charges and the Respondent-Company decided to
hold enquiry into the charges.
2) Accordingly, enquiry into both the charge-sheets dated 18
January 1996 and 18 May 1998 commenced. At the end of the enquiry into
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both the charge-sheets, enquiry committee submitted findings on 20
January 1998 holding the Petitioner guilty of the charges. The Petitioner
responded to the enquiry committee report. The Petitioner was issued a
show cause notice for imposition of penalty, which was replied by him.
According to the Petitioner, he was exonerated in respect of the charges of
disorderly behaviour and theft of the property of the Company. By letter
dated 10 December 1999, Petitioner was once again issued show cause
notice for penalty, which was replied by him. By order dated 25 February
2000, the punishment of dismissal was imposed on the Petitioner. It
appears that punishment of dismissal was communicated to the Petitioner
by letter dated 7 July 2000, by which cheque for wages of one month was
served on the Petitioner and his services were terminated w.e.f. 7 July 2000.
3) It appears that the Respondent-Air India had filed Approval
Application seeking approval in respect of dismissal order dated 25
February 2000 before National Industrial Tribunal at Mumbai, under
Section 33(2)(b) of the Industrial Disputes Act, 1947 (ID Act).
Simultaneously, the Petitioner raised demand before the Conciliation
Officer and on account of failure of conciliation proceedings, reference was
made to Central Government Industrial Tribunal No.2, Mumbai (CGIT-2),
which was registered as Reference No.CGIT-2/27 of 2010. The Petitioner
filed his Statement of Claim which was resisted by the Respondent-Air
India by filing written statement.
4) The CGIT delivered Part-I Award dated 20 September 2010
holding that the enquiry was not fair and proper and the findings of the
enquiry committee were perverse. The Respondent-Air India was granted
liberty to justify its action. Accordingly, the Respondent-Air India led
evidence before the CGIT-2 to prove the charges. After consideration of
evidence on record, the CGIT-2 has rendered Part-II Award dated 31
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March 2011 holding that four charges levelled against the Petitioner were
proved. The punishment of dismissal is also found to be justified by the
CGIT-2. However, it is held that the punishment was not in consonance
with Certified Standing Order 20(j) as the same did not contemplate
payment of pensionary benefits. Therefore CGIT-2, while upholding the
punishment of dismissal, has directed that the dismissal would be with
retirement benefits in full. The Petitioner is aggrieved by Part- II Award
dated 31 March 2011 and since the Tribunal has refused to set aside the
punishment of dismissal, he has filed the present Petition. By order dated 6
January 2015, the Petition was admitted. The Petition is called out for final
hearing.
5) Petitioner has appeared in person and tendered note of
arguments dated 9 January 2026. He has relied upon Constitution Bench
judgment of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank
Ltd. V/s. Shri Ram Gopal Sharma and Ors. 1 in support of his contention
that since approval to dismissal/termination is not given under Section
33(2)(b) of the ID Act, Petitioner is deemed to have continued in service.
He also relies on letter dated 13/20 June 2022 issued by the Deputy Chief
Labour Commissioner (Central) submitting that the Award cannot be
treated as in existence and is not enforceable.
6) The Petitioner further submits that out of the 12 charges
levelled against him only three charges are held to be proved by the CGIT-
2. That findings of the CGIT-2 about proof of the said three charges are
perverse. He would submit that though Part-I Award was rendered in
favour of him, holding enquiry to be unfair and findings of investigating
officer to be perverse, the CGIT-2 has erred in upholding the punishment of
dismissal. He would submit that there is no evidence on record in support
of charges of late reporting, missing from work or failure to attend Hindi
2002 I CLR 789
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classes. He would further submit that he is victimised on account of being
office bearer of the union. Lastly, he would submit that the nature of
charges proved against him are otherwise not serious and he has been
illegally dismissed from service on account of involvement in union
activities. He would submit that he has badly suffered due to illegal order of
dismissal and deserves to be reinstated by paying full backwages from the
date of dismissal till the date of retirement i.e. 30 September 2014. The
Petitioner also clarifies that what is challenged in the present Petition is the
impugned Award of CGIT-2 dated 31 March 2011 and that he is not
seeking reinstatement on the strength of failure to obtain approval to the
dismissal.
7) The Petition is opposed by Mr. Desai, the learned Senior
Advocate appearing for the Respondent-Air India. He would clarify that no
prior approval was required for dismissal of the Petitioner in view of
clarification issued by the National Industrial Tribunal (NIT) that no
industrial dispute was pending between Air India and its employees. The
dispute was between Indian Airlines and its employees. The application to
NIT under Section 33(2)(b) of the ID Act was erroneously sought on 7 July
2000 (Approval Application No.NTB-60 of 2000). However, Part I Award
was passed therein on 20 September 2010 clarifying that the Reference did
not pertain to the Air India. He relies on various orders passed by this
Court and of Supreme Court in which it has been clarified that no reference
was pending between Air India and its employees not requiring for any
prior approval to dismissal.
8) So far as merits of Award dated 31 March 2011 are
concerned, Mr. Desai would submit that the CGIT has rightly evaluated the
evidence produced by Air India and has rightly held the three charges to be
proved against the Petitioner. That the findings of the CGIT-2 are well
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supported by evidence on record not warranting any interference by this
Court in exercise of jurisdiction under Article 227 of the Constitution of
India. He would submit that the Petitioner was working in the Stores
section where vital material relating to national and international aviation
was stored. That the Petitioner's actions of unauthorisedly leaving the place
of work was serious considering the position that he was responsible for
spare parts relating to aircrafts. That since the Petitioner is found to be
guilty of serious misconduct, he is rightly dismissed from service and the
dismissal has rightly been upheld by the CGIT-2. He would pray for
dismissal of the Petition.
9) Rival contentions of the parties now fall for my
consideration.
10) The Petitioner, while working as Senior Storekeeper, was
subjected to domestic inquires in two charge-sheets. The Petitioner however
erroneously believes that three charge-sheets were issued to him. The first
charge-sheet was issued on 18 January 1996, in which three allegations
were levelled relating to (i) missing from duty, resulting in poor output and
neglect of work, (ii) reporting late for duties resulting in poor output and
punching card being found to be missing from regular place and (iii) doing
private business of passport during duty hours. What the Petitioner
describes as second charge-sheet is letter dated 20 January 1998, which is
not a charge-sheet in itself, but merely enumerates the clauses of the
Certified Standing Orders to the earlier allegations levelled in the charge-
sheet dated 18 January 1996. Therefore, what was issued on 20 January
1998 cannot really be treated as second charge-sheet. The actual second
charge-sheet was issued to the Petitioner on 10 May 1998 in which
following charges levelled against the Petitioner: (i) unauthorised entry in
cabin of Deputy Manager and making personal calls and taking his official
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rubber stamp, (ii) non-availability of time card at designated place on 20
February 1998 and keeping the said card at unauthorised locations
unknown to the department, (iii) failure to attend Hindi classes on 17
occasions, (iv) reporting late for duties during the year 1997-98, (v) availing
leave in irregular manner during 1997-98 and (vi) refusal to accept letters or
accepting the same under protest.
11) As observed above, though the charges were held to be proved
by the Enquiry Committee based on which, the order of dismissal was
passed, the enquiry was ultimately held to be not fair and proper and
findings of the Enquiry Officer were held to be perverse in Part-I Award
dated 20 September 2010. After the Respondent-Air India led evidence to
justify its action, the Industrial Court, after evaluation of evidence led
before it, has held as proved only five charges relating to (i) late reporting
for duties, (ii) missing from place of work (iii) failure to attend Hindi
Classes on 17 occasions (iv) refusal of work allotted to him and (v)
threatening the superiors and refusing to accept transfer. This is clear from
following findings of CGIT in paragraph 46 of the Award:
46. In the light of above discussions, I hold that following charges are
proved against the second party workman Mr. Prabhu. They are (i) Late
reporting to his workplace, (ii) Missing from the place of work, (ii) He
was relieved from his duty to attend Hindi class from July 1997 to
November 1997, however on 17 occasions he did not attend Hind classes.
The second party workman is found guilty for all these charges. In
addition to that there is also evidence on record which indicates that the
workman used to refuse the work allotted to him by his superiors. There
is also evidence on record as reflected from the version of the witnesses
that workman used to threaten his superiors and had also refused to
accept the transfer. In short he was rightly held guilty for the charges
levelled against him.
(emphasis added)
12) I have gone through the manner in which the evidence has
been evaluated by the CGIT while holding the above five charges to be
proved. Except the element of threatening the superiors, which was
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apparently not the charge levelled, it cannot be contended that there is
absolutely no evidence for holding the above charges to be proved. CGIT
has discussed evidence on record for holding the five allegations to be
proved. I therefore do not find any reason to interfere in the findings of
proof of all the said five charges. Even otherwise, this Court is not expected
to re-appreciate the evidence in exercise of jurisdiction under Article 227 of
the Constitution of India. So long as there is some evidence on record for
proof of charges, finding of guilt cannot be interfered with.
13) The Tribunal thereafter went into the issue of proportionality
and upheld the punishment of dismissal by recording following findings:-
48. ...In the case at hand there are 3 charges proved against the workman.
In addition to that, there is also evidence on record that he used to refuse
to work directed by his superiors. There is also evidence that he had also
refused to accept transfer. Often reporting workplace late, missing from
the place of work and not attending Hindi class on 17 occasions for
which he was relieved from duty. Each of these charges is sufficient to
dismiss the workman from services.
49. In this respect the Id representative of the first party rightly
submitted that, the workman under reference was serving in Air India.
He was Sr. Storekeeper in the Spare Parts & other Stores of the company,
where such a negligent behaviour may cause serious problems to the
company as it is related to national and international aviation. Everyday
company has to arrange several national and international flights. They
have to maintain their schedule timings of all the flights. They are
required to take timely and utmost care of their aircrafts and
maintenance thereof. Therefore, they cannot afford any such negligence
or delay in any of their departments. In the circumstances, Id
representative of first party submitted that, such a workman can cause
grave damage to the company and also to the public at large. Therefore,
he rightly submitted that punishment of dismissal is adequate and proper.
In this backdrop, I hold that punishment of termination is just, proper
and adequate. Thus it needs no interference except the above mentioned
change in the final order in consonance with the certified standing orders.
(emphasis added)
I find the observation of CGIT that each of the charges were sufficient for
dismissing the Petitioner to be preposterous. How failure to attend Hindi
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class can entail dismissal? Similar is the position in respect of charge of
reporting late for duty or refusing to accept transfer order.
14) Thus, the CGIT-2 has held that punishment of dismissal from
service was commensurate to the proof of five allegations held to be proved
against the Petitioner. Here I am unable to agree. All the five charges found
to be proved against the Petitioner are not of serious nature. The proved
misconduct relates to reporting late for work place, missing from place of
work, non-attendance of Hindi classes, refusal to perform the work allotted
by the superiors and refusal to accept transfer. However, none of the five
charges, by themselves, appear to be of serious nature.
15) Mr. Desai has attempted to add some seriousness to the
charge of missing from duty place by contending that being a Senior
Storekeeper, Petitioner was responsible for vital spare parts of the aircrafts
and that therefore has committed serious misconduct warranting dismissal.
However, merely because the Petitioner was a Senior Storekeeper, it did not
mean that he was deployed on the job of keeping watch and ward. A
Storekeeper manages, records and controls the inventory within the storage
area. He is not supposed to guard the products stored. Therefore, even if he
was found to be missing from duty on some occasions, such an act cannot,
by itself, be treated as serious misconduct. Again, merely because Petitioner
happened to be Storekeeper of Air India and was managing the stock of
spare parts relating to aviation, the same again would not elevate his duties
to that of guarding the store. The misconduct of missing from work may
assume seriousness in relation to security guard posted for protecting
property of the employer. However, the degree of seriousness would not be
same in respect of a Storekeeper, who is essentially responsible for
maintaining the records of the stock. The CGIT has also held the charge of
missing from work to be serious on account of Petitioner being responsible
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for spare parts of national and international aviation. However, there is no
charge much less proof to indicate that there was any delay in supply of
spares at any time or mismatch in the spares.
16) Also of relevance is the fact that the Respondent did not
produce any past record of the Petitioner to demonstrate that he was
repeatedly indulging in similar misconduct or that he was punished in the
past. Though the employer levelled several charges against the Petitioner
ultimately five minor allegations are held to be proved against him. Though
the Petitioner deserved to be punished, imposition of harsh punishment of
dismissal from service was clearly unwarranted in the facts and
circumstances of the present case. Out of the five charges held to be proved
against the Petitioner, only the charge of refusal to perform allotted work is
of some significance. If the findings of the CGIT-2 in paragraph 34 of the
Part-II Award are taken into consideration seriousness in respect of that
charge is clearly reduced. It would be apposite to reproduce the findings in
paragraph 34 of the Award, which read thus:-
34. In respect of refusal to work as per the direction of higher officer,
the workman has admitted in his cross at Ex-57 para 40 thereof that his
superiors has issued memo to him for refusal of work and he replied that
immediately. He admitted that there were occasions when he used to
demand memo in writing to do some work directed by the superior. He
volunteers in the same para that, such occasions were when they used
to give additional work other than his regular work. He admitted the
memos issued to him and his endorsements thereon at Ex-91, 91/1, 91/2.
His admissions in his cross support the version of first party and its
witnesses that the second party workman was in a habit of refusing the
work directed by his superiors. Thus I hold this charge is supported by the
evidence of these witnesses and the documents produced by them that
the second party workman used to refuse to do the work directed by his
superiors.
Thus what is proved is the act of the Petitioner in demanding Memos for
additional work over and above his routine work.
17) In my view, therefore, the punishment of dismissal from
service does not appear to be commensurate with the charges proved
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against the Petitioner. CGIT ought to have been mindful of the fact that
punishment of dismissal was imposed on account of proof of all the
charges. Ultimately, only five minor charges are held to be proved against
the Petitioner. In that view of the matter, CGIT-2 ought to have appreciated
that extreme punishment of dismissal was not warranted for five proved
charges. Punishment of dismissal appears, to my mind, as shockingly
disproportionate to the misconduct proved. The Petitioner has attained the
age of superannuation during pendency of the present Petition on 30
September 2014. Therefore, there is no question of his reinstatement by
reducing the penalty.
18) Since I have held that punishment of dismissal was not
warranted, issue that arises for consideration is about nature of relief to be
granted in favour of the Petitioner. Granting relief of backwages would
mean that the Petitioner will have to be paid backwages for 14 long years
since he was dismissed on 25 February 2000 and attained the age of
retirement on 30 September 2014. Therefore, the issue for consideration is
the extent to which the backwages can be awarded. I have upheld the
findings of CGIT-2 about proof of five allegations. Thus, Petitioner
deserved some penalty, if not the penalty of dismissal. In that view of the
matter, full backwages cannot be directed to be paid to the Petitioner.
Considering the nature of misconduct found to be proved against the
Petitioner and keeping in mind the position that the Petitioner was
repeatedly indulging in misconduct leading to issuance of two charge-
sheets, in my view interest of justice would meet by directing payment of
30% backwages to the Petitioner from the date of dismissal till the date of
attaining the age of superannuation. This would ease the financial burden
for Respondent-Air India while providing some solace to the Petitioner.
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19) Since dismissal order is held to be illegal, the Petitioner will
have to be treated as in service till 30 September 2014. This Court is
denying him 70% of backwages. However, for the purpose of payment of
retirement benefits, he should be treated to be in service till 30 September
2014. Accordingly, all retirement benefits will have to be paid to the
Petitioner on the basis of his notional pay fixation as on 30 September
2014. Even 30% backwages shall be paid to the Petitioner by notionally
fixing his pay by adding yearly increments, wage rise, etc. However, since
the Petitioner has not actually discharged the duties, any duty related
allowances shall not form part of 30% backwages
20) The Petition accordingly partly succeeds, and I proceed to
pass the following order:
(i) Part-II Award dated 31 March 2011 passed by the CGIT in
Reference No.CGIT-2/27 of 2010 is set aside.
(ii) Punishment of dismissal from service imposed w.e.f. 25
February 2000 is held to be illegal and the same is set aside.
(iii) The Respondent-Air India is directed to pay to the
Petitioner 30% backwages from the date of dismissal i.e. 25
February 2000 till the date of attaining the age of
superannuation i.e. 30 September 2014 by considering the
notional pay-fixation.
(iv) The Respondent-Air India is further directed to pay to the
Petitioner retirement benefits by considering that he was in
service upto 30 September 2014 by considering his notional
pay fixation as on 30 September 2014.
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(v) Amounts towards backwages and retirement benefits shall
be paid by the Respondent to the Petitioner within a period
of three months, failing which the Respondent shall pay
interest @ 8% per annum on the said amounts on expiry of
period of three months.
21) With the above observations, the Writ Petition is partly
allowed. Rule is made partly absolute. There shall be no order as to costs.
[SANDEEP V. MARNE, J.]
Signed by: Megha S. Parab
Designation: PA To Honourable Judge 20 January 2026
Date: 20/01/2026 20:40:42
