JUDGMENT
1. This Petition is filed by the Kolhapur Zilla Shetkari Vinkari Sahakari Soot Girani Ltd., hereinafter referred to as ‘the employer’ and in the petition the employer has impugned the order passed in favour of the 1st Respondent employee by the Industrial Court, Kolhapur in Revision Application No. 20 of 1983. In order to understand the controversy a few facts may be stated.
2. The employee was in the employment of the petitioner as badli worked. On March 13, 1981, it is claimed that, at about 1 p.m. the employee assaulted one clerk Devtale, also an employee at dispensary of E.S.I. Hospital. This was in the presence of Dr. Karikatte. The Doctor, it appears, was so incensed by the incident that he wrote a letter of complaint to the employer and an a result thereof disciplinary proceedings commenced against the employee. It was alleged that he had committed breach of the standing orders. Ultimately, as a result of the enquiry, the factual findings whereof were against the respondent-employee, he was dismissed. The employee thereupon preferred a complaint before the 1st Labour Court, Kolhapur, which complaint was numbered as ULP No. 89 of 1981. The Labour Court after considering various aspects of the matter dismissed the complaint. It also did not think it fit to interfere with the punishment of dismissal. Presumably this was after taking into account the previous history of the respondent-employee.
3. The respondent-employee preferred a revision to the Industrial Court, Kolhapur. The plea which appealed to the Industrial Court was that the incident had taken place not within the premises of the factory or on the premises of the factory but outside. Admittedly the alleged assault had taken place at E.S.I. Hospital. Two judgments of the Supreme Court having bearing on the question were considered by the learned Member of the Industrial Court. The first decision on which the employer relied on was Mulchandani Electrical and Radio Industries Ltd. v. The Workmen (1975-I-LLJ-391). The decision on which reliance was placed by the employee was M/s. Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut and Others (1984-I-LLJ-16). Both are decisions of a three Judge Bench. Relying upon the latter decision the revision was allowed by the Industrial Court and the employee was directed to be reinstated with full back wages.
4. Against the decision of the Industrial Court given on September 12, 1984, the present writ petition was preferred. It was admitted in October, 1984. Thereafter it has not been heard for nearly five years. By another order made earlier, the employer has been directed to furnish a bank guarantee in the amount of Rs. 30,000/-. I am told that the last drawn pay of the workmen was Rs. 525/-.
5. On the previous occasion this writ petition was kept back to find out the precise standing order, the violation of which had been alleged in the disciplinary enquiry. It has now been ascertained that there is no specific standing order adopted by the employer and hence the case will governed by the model standing orders. The relevant model standing order which will have to be considered is 24(1) which reads as under :
“24. Any of the following acts or omissions on the part of an employee shall amount to misconduct :
(a) to (K) ……..
(1) commission of any act subversive of discipline or good behaviour on the premises of the undertaking.”
6. In Mulchandani Electrical’s case (supra) the Supreme Court was giving its consideration to Standing Order 24(1) which has been extracted in para 6 of the decision. The said standing order reads as under :-
“24. The following acts and omissions on the part of a workman shall amount to misconduct :-
(1) commission of any act subversive of discipline or good behaviour within the premises or precincts of the establishment.”
7. In Glaxo’s case (supra) which was relied upon by the Member, Industrial Court in over-ruling the decision of the Labour Court, the standing order of the employer claiming consideration was Clause 10 of Standing Order 22 which has been extracted in para 6 of the decision. The said Standing Order 22(10) reads as under :-
“22. The following acts or omissions will be treated as misconducts :-
(10) Drunkenness, fighting, indecent or disorderly behaviour, use of abusive language, wrongfully interfering with the work of other employees or conduct likely to cause a breath of the peace or conduct endangering the life or safety of any other person, assault or threat of assault, any act subversive of discipline and efficiency and any act involving moral turpitude, committed within the premises of the establishment, or in the vicinity thereof.”
If unnecessary surplusage is omitted from the standing order in Glaxo’s case (supra) we have the words “….. any act subversive of discipline and efficiency ….. committed within the premises of the establishment or in the vicinity thereof.”
8. Now let us see what was held in the aforesaid two decisions of the Supreme Court. The Court was considering following facts in Mulchandani Electrical’s case (supra). On December 30, 1970, one Ashok Bhambani, an operator employed in the factory of the employer, is alleged to have threatened a charge-hand Ramesh Thadani with assault. The cause of the threat was that Ramesh Thadani had reported against another operator as a result of which the said other operator had been removed from services. This threat was then followed up by Ashok Bhambani allegedly assaulting Ramesh Thadani at about 5.30 p.m. on the very day in the local train between Thana and Mulund. It had been contended before the Courts that the assault having taken place in the train, was not covered by Standing Order 24. The Court was unable to agree with the submission that the standing order leaves out of its scope an act committed outside the establishment though it may result in subversive of discipline or good behaviour within the premises or precincts of the establishment in question.
9. In Glaxo’s case (supra), Mulchand Electrical’s case (supra) had been cited and the relevant discussion is to be found in paragraph 12 of the later decision. The Court observed in the first place that there was a marked difference between the language of Clause 10 of Standing Order 22 which the Court was considering in Glaxo’s case and Standing Order 24(1) which came up for consideration in the earlier case. It also observed that in the earlier case the Court had put a wide construction on a penal provision giving a go-bye to the salutary opposite principle which is usually accepted. It also observed that ordinarily if a workman is involved in a riot or indulges in fighting somewhere away from the establishment of the factory it need not amount to any industrial dispute. However, the decision in the Mulchand Electrical’s case (supra) was not expressly over-ruled since it could be distinguished. If that be so, it has been submitted before me on behalf of the employer placing reliance upon the observations in Union of India and another v. Raghubir Singh , that it is the earlier decision which must prevail over the latter.
10. In the first place Mulchandani Electrical’s case (Supra) can be distinguished from the facts of the case before me because in Mulchandani Electrical’s case (supra) it has not been disputed before the Court that the allegation of assault if proved would be an act subversive of discipline (See observations in paragraph 6 of the LLJ report.) Indeed on the factual catena briefly set out by the Supreme Court it was very clear that the assault was consequent upon a person giving evidence in the previous disciplinary proceedings which had resulted in the termination of employment of another employee. The conclusion which was reflected in the concession flowed clearly from the factual position being considered by the Court.
11. A similar situation does not exist in the instant case. It is true Devtale was another employee of the petitioner. It is also alleged in the factual background that the Respondent suspected that Devtale was coming in the way of the Respondent resuming duty. Indeed, it has been averred that Devtale had commented upon the Respondent procuring necessary certificates from the medical officer by giving threats. However, Devtale was not the superior officer of or in any position superior to, the Respondent or connected with the personnel department which could permit the employee to resume duty. If two employees of a common employer fight away from the establishment or if any one employee assaults another, outside the establishment, that by itself does not become an act subversive of discipline. Even if there is reference to the work place or what the other employee is supposed to have done will not necessarily involve the question of discipline. If such assault takes place within the precincts of the employer then per se there may be a presumption that it affects the other workmen and the question of breach of discipline may be assumed or implied. In the present matter there is no allegation that there was an attempt by means of the assault to induce Devtale to behave in a particular manner qua the Respondent’s resumption of employment. The objection was the other way about. The Respondent apprehended that Devtale by making false complaint against the Respondent might prevent his resumption of service, and by his conduct had compelled the Respondent to come to the Doctor for procuring a fresh certificate. This is a personal grievance although it may be connected with the work of the employee. Unless the employees are connected directly, the assault cannot, in my opinion, be regarded as having casual connection with acts subversive of discipline when such assault or threats takes place away from the premises of the establishment.
12. In other words, restricting our consideration to acts of violence or assaults, if these takes place on the premises of the undertaking and within the duty hours, there could be a presumption that such action must be regarded as subversive of discipline or contrary to the norms of good behaviour implied by Standing Order 24(1). If on the other hand such acts take place away from the premises of the undertaking, something positive and more has to be established to show casual connection between the acts and subversive of discipline. Such casual connection was conceded in Mulchandani Electrical’s case (supra) and once the concession was made the fact the actual physical assault had taken place away from the premises of the undertaking paled into insignificance and lost importance. In the instant case casual connection, in my opinion, has not been established beyond doubt. The position might have been different as indicated earlier if Devtale was the immediate superior of or in a superior position than the Respondent in the employment hierarchy to decide upon the question of resumption of employment. That does not appear to have been established by cogent evidence. Merely because the complaint of another employee might have affected the concerned employee who is then alleged to have assaulted the former, will not bring in its wake the question of subversive of discipline or breach of norms of good behaviour per se when the assault or threat or abuse takers place outside the establishment. If a restricted application is not given to the action which takes place outside the premises and casual connection not strictly insisted upon there would be no safety to the employees since every personal quarrel can be easily converted into matters affecting the employer. In other words when the assault, threat or abuse takes place outside the premises of the undertaking it is not enough to establish that the persons concerned are co-employees. It is essential to establish more. It is enough to say that the party assaulting mentioned other officers. For eg. an employee may assail the conduct of the employer pertaining to non-increase in wages or giving of bonus. Even abusive phraseology or obscene phraseology may be used. Such talk, away from the premises between co-employees cannot bring in its wake contravention of Standing Order 24(1). Suppose there was quarrel between two employees about something totally extraneous to the work place. That obviously would not bring in its wake violation of Standing Order 24(1). Similarly, if there was a personal quarrel between two employees pertaining to their work of similar aspects of the work, that would not necessarily bring in its wake violation of Standing Order 24(1), unless it could be established that by such assault, discipline in the employer’s factory was attempted to be subverted. There is a total failure on the part of the employer to establish this aspect in the present matter. In Mulchandani Electrical’s case this has been conceded on behalf of the workmen before the Supreme Court. Once the concession was made the situs of the assault lost importance. In the present case there is no such concession and the employer must be regarded as having failed to establish this vital actual aspect of the matter.
13. In this background, despite the legal submissions made before me, the order of the Industrial Court will have to be upheld though on slightly different considerations than those which appealed to the Industrial Court. Only one question remains. It has been alleged that this was a complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and the matter would not be covered by any of the clauses of Item I of Schedule IV. It was submitted that the action was bona fide taken by the employer and therefore could not be regarded as being in the colourable exercise of the employer’s rights. The contention can be dispelled by a few illustrations. Suppose the employee was getting drunk in his own house or beating his own wife to the extent that criminal complaints were filed and the employer acting bona fide and posing as a champion of morality had taken action against the employee and ultimately dismissed him, then in such case even though the employer had acted in good faith and bona fide, believing himself to be right, the action would still be in colourable exercise of the employer’s rights. If the employer acts under a standing order and holds that it has been violated and on account of the purported violation, terminates the services of the employee, it must be regarded as colourable exercise of employer’s rights if the Standing Order had been wrongly applied. Since there is no violation of the Standing Order as properly construed the employer had no right to dismiss or terminate the services of the employee and accordingly the purported exercise of such alleged rights must be held to be colourable. This cases was thus covered by Item (b) not on account of want of good faith, but on account of want of power since there had been no breach of the standing order.
14. The Industrial Court passed the order in 1984. The employer would be bound to reinstate the employee concerned with full back wages between the period July 23, 1981 to September 12, 1984. That full back wages must follow reinstatement is the Rule. The unusual question which arises is as to the liability of the employer to pay back wages for the period October, 1984 till February, 1990 when stay has been given by this Court. Of course, the simplistic view would be to foist the employer with the back wages during this period since the Court had been moved at the instance of the employer and the challenge to the reinstatement has been ultimately repelled.
15. There is another difficulty regarding back wages. As stated earlier the Respondent was a badli winder. In some employment badli winder may get employment for almost all the working days, whereas in some employments the badli worker may not get employment for more than 7-15 days in a month. In such a case how are the back wages which must flow from the order of reinstatement, to be calculated ? I have further ascertained that on the date of termination the salary of the badli worker was about Rs. 535/- and today it is about Rs. 1,000/- per month. I think interest of justice would be subserved if Rule is discharges with further directions that if the reinstatement takes place by April 30, 1990 at the latest, the employer should pay as back wages the lumpsum of Rs. 30,000/- (Rupees thirty thousand) in respect of which some bank guarantee has been given under the orders of this Court. I am informed by the Advocate for the employer that the bank guarantee is subsisting.
16. Accordingly the Rule is discharged. The employer is directed to reinstate the employee on or before April 30, 1990 at the latest and is also directed to pay to the employee back wages from March 7, 1981 to April 30, 1990 calculated in a rough and ready manner at Rs. 30,000/- (Rupees thirty thousand). If the payment of lumpsum back wages is not made on or before June 15, 1990 the Respondent-employee may move this Court for enforcement of the bank guarantee and on such application being made, necessary action to be taken forthwith by the Office.
17. If on the other hand the employee is not reinstated on or before April 30, 1990, and as the Rule has been discharged, the employee will have to obtain reinstatement by adopting proper remedy. In that case the employee will be entitled to the full back wages for the period from his termination to the reinstatement and not the lumpsum of Rs. 30,000/- which has been awarded to him under this Order. In case of this eventuality, that is, non-reinstatement by April 30, 1990, the employee must move this Court immediately after June 4, 1990 for directions regarding enforcement of bank guarantee for payment of the amount to the employee towards his claim for back wages. This must be done by Civil Application. In case there is any other difficulty liberty to apply.
18. This being a matter between a worked and employer, the parties are directed to bear their own costs of the writ petition.