JUDGMENT
1. By this writ petition, Carona Sahu Ltd. seeks to challenge Part 11 Award in Reference IDA 268 of 1984 delivered by Labour Court on February 4,1993. By the impugned Award the Labour Court directed reinstatement of the dismissed employee Mansoor Ahmed in service with 75% back wages and continuity of service from January 10, 1983. At this stage, it ma be mentioned that Part Award is in favour of the Company. Mansoor Ahmed has not challenged Part-1 Award in this writ petition.
2. At the very outset, 1 may point out that broadly the facts of the present writ petition are identical to Writ Petition No. 976 of 1993 and Writ Petition No. 2136 of 1994 which are disposed of by a common Judgment.
3. By chargesheet dated July 22, 1982, the Company alleged that Mansoor Ahmed was allotted work in the first shift on July 19, 20, 21, 1982. At the beginning of the shift, he was found instigating co-workers to resort to go slow and subsequently, he was found indulging in concerted go slow along with other co-workers of the Department ana as a result, production of the Department fell down by 270 pairs as on July 19,1982, 236 pairs on July 20,1982 and 270 pairs on July 21,1982. By the said chargesheet, the Company alleged that even earlier Mansoor Ahmed was advised by his superiors, not to indulge in go slow but he did not follow their instructions. By the said chargesheet, the Company further alleged that Mansoor Ahmed committed breach of the undertaking given to the Company at the time of resumption to work after the lockout imposed earlier by the Company came to be lifted. fin the above circumstances, the Company charged Mansoor Ahmed with gross misconduct under Standing Orders 24(a) viz. wilful insubordination, wilful slow down in performance of work vide Standing Order 24 (c) and commission of acts, subversive of discipline vide Standing Order 24(1). By reply dated July 29,1982 Mansoor Ahmed denied each and every allegation. He contended that he had given normal production on all the above mentioned dates and the charges levelled against him were false and baseless. He further contended that allegations were made in order to victimize him as he was a member of the Maharashtra General Kamgar Union (hereinafter referred to, for the sake of brevity as “MGKU”). The reply was followed by a Domestic Enquiry. In die said Enquiry, the Company’s witness Shri Naik, the Senior Foreman deposed that on July 19,1982, Shri Rao, a Junior Foreman who had since left the services, came to him and reported that despite repeated advices, Mansoor Ahmed had stopped work along with other workers before completing normal production. Shri Naik reported the matter to his superior Officer-in-charge. Shri Naik gave a written Complaint against Mansoor Ahmed. In his examination-in-chief, he has testified that the said Complaints dated July 19, 20, 21, 1982 being Exhibits 1. J and K were written and signed by him. He also deposed to the correctness of the contents of Exhibits I, J and K. He has further deposed in his evidence that on the above three dates, Mansoor Ahmed instigated other workers to stop their work at 2.35 p.m., 1.45 p.m. and 2.40 p.m. respectively and as a result there was shortfall in production of pairs, numbering 270, 236 and 270 respectively on the aforestated three days. He further deposed that it is only after June 1, 1982 that Mansoor Ahmed started giving less than normal production. Shri Naik also produced Saldo for the month of May 1982 and for the aforestated three days in support of his oral testimony showing fall in production. Shri Naik taken his initials in 82. In his cross deposed that the work of shoe lasting is carried out by a team of five workers and if a worker in the team resorts to wilful go slow then the team work suffers and the normal production will not be attained. Mr. Naik, in his crossexamination has further deposed that he instructed Mansoor Ahmed to give normal production on July 20,1982 also and that he was never informed by Mansoor Ahmed that he was not well. Shri Naik in his evidence has further referred to the agreement between the Management and the Union. He has also referred to the contents of the said Agreement. Similarly, the Company led evidence its behalf of Shri Bangera, the Senior Foreman who has deposed that on July 19,1982, he was in the first shift working with Mansoor Ahmed who was allotted the work of shoe lasting. He has further deposed that the entire team was working slowly and, therefore, he had instructed Mansoor Ahmed not to work slowly. He has further deposed that Mansoor Ahmed stopped his work at 2.35 p.m. on that day which was before closing hours. Re has further deposed that he has asked Mansoor Ahmed as to why he stopped the work when Mansoor Ahmed replied that he had given the required production. Shri Bangera has further deposed that when he checked Saldos, it was found that l@ the production given was 2160 pairs against the estimated production of 2430 pairs and accordingly, the loss in production was ascertained to be 270 paris on that day. He has further deposed that Mansoor Ahmed continued to go slow even on July 20,1982 and July 21, 1982. Shri Bangera has further stated in his cross examination that he was present in the first shift on July 19,1982 and he was personally aware that Mansoor Ahmed worked only upto 2.35 p.m. on that date. He further deposed that the hours were from 7.00 a.m. to 3.00 p.m. He has further deposed that from 2.30. p.m. to 3.00 p.m. he was busy checking the production of the Department. He has further deposed that the Junior Foreman also had reported to him about less production being given by Mansoor Ahmed after 2.30 p.m. He has, however, stated that he has not made any written Complaints to the Management and that the Complaint has been written by the Senior Foreman Shri Naik. He has further deposed that he has not made a false statement as alleged and that he had no personal grievance against Mansoor Ahmed. Mansoor Ahmed, in his evidence, however, stated that he was not responsible for the fall in production because he had given normal production, but since he was required to work in a team in the shoe lasting Department, the Company was not entitled to pick and choose a worker out of the and not to take action against others. At the same time, in his evidence, Mansoor Ahmed stated that the contents of the chargesheet, giving statistical figures of the pairs produced on July 19,20,21, 1982, are correct.
4. On the basis of the above evidence on record, the Labour Court, vide Part-II Award, found that the Enquiry was fair and proper. The Labour Court also found that full opportunity was given to Mansoor Ahmed and that the Enquiry was vitiated by bias. The workman had attended the Enquiry throughout and had signed all the Enquiry proceedings. His representative also was present throughout the Enquiry. In the circumstances, the Part-1 Award came to be delivered in favour of the Company. However, since the workman had alleged victimization and unfair labour practice on the part of the Company, in the matter of imposition of punishment, the Labour Court, directed further evidence on the remaining issues and accordingly, Part 11 award came to be delivered by the Labour Court, in the above Reference IDA No. 268 of 1984. By the said impugned Part-11 i Award, the Labour Court came to the conclusion that the Company has acted unjustly by not treating the delinquents equally in the matter of imposition of punishment. The Labour Court found that no action was taken against other coworkers who had also resorted to wilful go slow only for three days and that he was guilty for producing below capacity only for three days. Accordingly, the Labour Court directed reinstatement with 75% backwages. Being aggrieved by the impugned Part-II Award, the present writ petition has been filed.
5. Mr. Rele, learned counsel appearing on behalf of the Company contended that the impugned Part-11 Award suffers from non-apllication of mind. He points out that in Para of the impugned Part-11 Award, the reasoning given indicates a discussion by the Labour Court which shows non-application of mind. Mr. Rele submitted that in the present matter, there was no charge of Mansoor Ahmed resorting to illegal strike that Mr. Rele points out that that was a charge in the earlier matters against Abdul Karim who was exonerated of the said charge and yet the Labour Court, in the impugned Part-11 Award has bodily lifted the charges applicable to Abdul Karim and has applied the same to the facts in the present case, dealing with dismissal of Shri Mansoor Ahmed. I find merit in this contention. A bare reading of the said Para II indicates total non-application of mind on the part of the Labour Court. The Labour Court has bodily lifted the said Paragraph from the Part II Award in the earlier matter, particularly when there was no charge of resorting to illegal strike against Mansoor Ahmed. Mr. Rele next contended that in the present matter, the Enquiry Officer has concluded that Mansoor Ahmed was not only guilty of taking part in wilful go slow, but the Enquiry Officer further has found that Mansoor Ahmed had 19 incited other co-workers also to resort to wilful go slow and stoppage of work. Mr. Rele further points out that in the present matter, the Enquiry Officer has also found Mansoor Ahmed guilty of wilful insubordination, particularly when Mansoor Ahmed was warned by his superiors and he was also advised not to resort to illegal go slow and stoppage of work and yet he continues to do so. Mr. Rele, therefore, contends that in the present matter, unlike the earlier matter, Mansoor Ahmed has been found guilty of resorting to wilful go slow and of inciting other co-workers to resort to go slow not only on one day, but on three consecutive days. Mr. Rele further points out that Mansoor Ahmed was fully aware that he had given an undertaking to the Company, not to resort to go slow and despite giving an undertaking, he continued to resort to the said pernicious illegal activity. Mr. Rele further points out that the workman had retired even when the matters were pending before the Labour Court and yet he is ordered reinstatement by the Labour Court. Mr. Rele also points out that even the past record of the workman indicates that even in the past he was suspended for creating confusion amongst coworkers by giving wrong interpretation of bonus agreements. Mr. Rele, therefore, submits that in the present case, the Labour Court erred in granting reinstatement with 75% backwages. Mr. Rele further points out that go slow is a pernicious activity and it has been held so by the Supreme Court in the case of Bank o India v. T. S. Kelawala reported in (1990-II-LLJ-39) and in the case of Bharat Sugar Mills Ltd. v. Jai Singh reported in (1961-II-LLJ-644). Mr. Rele submits that per se a wilful go slow is a serious misconduct and once the Company proves the said misconduct, then in a matter of this type, reinstatement should not have been ordered. so Mr. Rele submits that the entire background of the matter as discussed in the earlier Judgment in Writ Petition No. 976 of 1993 and Writ Petitim No. 2136 of 1994 indicates that Mansoor Ahmed was fully aware of the chequered history of disputes in the factory and yet he resorted to the said pernicious activity knowing fully well that it would harm the production. Mr Rele further points out that in the above circumstances, the Labour Court should not have i granted reinstatement with 75 % back wages to the workman.
6. Mr. Ganguly, learned counsel appearing for the workman, however, contends that in the present matter the Labour Court has exercised its discretion under See. 11-A and has recorded a finding of fact that while imposing punishment, the Company has not punished the coworkers who have resorted to alleged wilful go slow only because they belonged to internal Union having supported the cause of the Company. Mr. Ganguly further contends that in the present case, the Labour Court has come to the conclusion that the worker Mansoor Ahmed had put in 22 years of service and only on the ground of wilful go slow for three days, he should not he punished by an Order of dismissal. Mr. Ganguly further contends that his past record was also unblemished. Mr. Ganguly points out that even if it is held that the charge of wilful go slow stands proved, still the shortfall in production was only 10% on each of the three days. In the circumstances, Mr. Ganguly contends that the punishment was disproportionate. Mr. Ganguly next contends that in the present matter, before the Labour Court, Mansoor Ahmed has deposed that he had given normal production for which he has received incentives which clearly shows that he was wrongly charged for less production . Mr. Ganguly further contends that the Enquiry Officer has only come to the conclusion on facts that Mansoor Ahmed was guilty of concerted go slow along with other workers. Mr. Ganguly further points out that names of the persons who were instigated allegedly by Mansoor Ahmed have not been disclosed. In the circumstances, Mr. Ganguly contends that the Labour Court was right in granting reinstatement with 75% back wages and there was no reason to interfere under Article 226 of the Constitution.
7. In the present matter, as discussed hereinabove, the company has led detailed evidence before the Enquiry Officer. It is the function of this Court to reappreciate the evidence unless this Court comes to the conclusion that the impugned Award suffers from non-application of mind or if the same is perverse or totally erroneous so as to cause injustice to the party concerned. As stated hereinabove, non-application of mind on the part of the Labour Court is lo clearly borne out by the fact that findings are recorded by bodily lifting the same from the Award of the Labour Court in the earlier matter concerning Abdul Karim. Further, as stated hereinabove, reinstatement is granted to Manssoor Ahmed, although he stood retired before the Award came to be given. Moreover, in the present matter, under Part-1 Award, the Labour Court has come to the conclusion that the Domestic Enquiry was fair and proper and that Mansoor Ahmed was guilty of wilful go slow, wilful insubordination, instigating co-workers to resort to go slow and also providing less production. Despite the said finding contained in Part-1 Award, the Labour Court came to the conclusion that because Mansoor Ahmed had committed serious misconducts only for three days, the punishment was disproportionate and accordingly, reinstatement has been ordered. As held by the Supreme Court in the judgments referred to above, a wilful go slow is a pernicious activity per sec. 71 Supreme Court has held that it amounts to dishonesty on the part of i the employee because it constitutes breach of the contract of employment and because it has 351 serious consequences. If an activity is per se, legal then in such cases, the Labour Court ! should not interfere unless the charge of victimization is proved. Further, when an activity 1 of this nature constitutes a serious misconduct, 4o i then it is well settled that the consequences of that misconduct alone is not to be seen because per se that activity is a serious misconduct. In i the present case, the Labour Court, in the impugned Award has come to the conclusion that 4,5 because Mansoor Ahmed has rendered service for 22 years, the Order of dismissal was unjust, i unfair and harsh. However, the Labour Court i has erred in the above conclusion. Once the labour Court has found in Part-1 Award that the charge is proved and that charge is of wilful go slow and inciting other co-workers to resort to the same misconduct then the period of one or three days does not matter. In the present matter, the Company had filed series of complaints 5 in the ULP Court even prior to the present disputes. The Company had also imposed lockouts which came to be lifted on the workers giving undertaking not to resort to go slow. In the present matter, the evidence indicates that Mansoor Ahmed was required to work as a member of a team of workers in the Department and as held by the above judgments of the Supreme Court, even if one worker of the team resorts to go slow, then the entire production which is required to be given by the team of workers suffers. In the present case the charge of wilful insubordination is also proved. Mansoor Ahmed had given an undertaking not to resort to wilful go slow . Mansoor Ahmed was repeatedly warned by his superiors and yet he resorted to the above activity, not for one day, but for three consecutive days and he also sought that other co-workers followed him and as a result the production fell. In fact, as discussed herein after, Mansoor Ahmed has himself conceded that the production fell because the team work suffered. In the above circumstances, merely on the ground that the worker has put in 22 years of service, the Labour Court erred in granting reinstatement with 75% backwages. In certain cases, it is the nature of the serious misconducts which is required to be given more weightage than the effect of a misconduct. Wilfull go slow is one of the serious misconducts which, even the Supreme Court has laid down, is a pernicious activity per se. The words per se are of some importance because the Supreme Court has laid down in Bharat Glass’s case (supra) that certain misconducts are of such a serious nature that commission of such misconducts alone will warrant dismissal and in such cases, merely because the worker has put in large number of years of service will not necessarily lead to the conclusion that the Order of dismissal constituted a disproportionate punishment. In the present matter, one more aspect may be mentioned that even in past, Mansoor Ahmed was suspended for creating confusion amongst the workmen by giving wrong interpretation of an Agreement. This type of misconduct leads to Industrial unrest. In the circumstances, 1 do not find any merit in the contention of Shri Ganguly that the past service record of Mansoor Ahmed is untainted. Similarly, the Labour Court came to a wrong conclusion on the point that Mansoor Ahmed has been treated unjustly . The Labour Court found that other co-workers similarly situated were not punished whereas Mansoor Ahmed was punished because he belonged to MGKU. The Labour Court has not given a correct finding of this fact because it has bodily lifted facts from the earlier matter concerning Abdul Karim and those facts are incorporated in Part-Award is herein. However, it may be noted that in the case of Bharat Sugar Mills (supra), a similar argument was advanced before the Supreme Court to the effect that the delinquent was discriminated because the Management did not take action against other co-workers who had also resorted to go slow. This contention has been negated by the Supreme Court in the said judgment. ‘Re Supreme Court, while rejecting the said contention, has observed that in a matter involving wilful go slow, it is not possible to consider actual participation, particularly where workers are required to work in a team and further without knowing the circumstances under which other co-workers who were also charged with go slow were taken back in service, it would not be possible for the Court to come to the conclusion that the Management had acted unjustly against the concerned workman. This judgment of the Supreme Court squarely applies to the facts of the present case. Therefore, the Labour Court was wrong in coming to the conclusion that the punishment was discriminatory. However, since 1 have come to the conclusion that the impugned Part – Award suffers from non-application of mind and since the worker’s case was that he has been also victimized. I have gone into the evidence recorded before the Enquiry Officer in order to ascertain as to whether the charge of wilful go slow etc. in the present case along with other charges stood duly proved.
8. In this matter, as stated hereinabove Mansoor Ahmed has been charged for wilful insub-ordination, wilful go slow and commission of acts, subversive of discipline in the premises of the factory. Ale Enquiry Officer has come to office conclusion on evidence that Mansoor Ahmed was found to have resorted to wilful go slow, on July 19, 20, 21, 1982. In this connection, the Enquiry Officer has come to the conclusion, inter alia that the show in production clearly bears out the charges. The Enquiry Officer has also found on evidence that Mansoor Ahmed was required to work as a member of a team and on account of Mansoor Ahmed indulging in wilful go slow, the production expected of a team of workers came to suffer which is admitted even by Mansoor Ahmed (see page 174 of the paper is book in the present writ petition). The Enquiry officer also found on evidence, that Mansoor Ahmed was guilty of wilful insubordination, particularly in view of the fact that he was warned even earlier, as indicated by complaints to at Exhibits 1 J and K, not to resort to go slow and despite his giving an undertaking earlier, not to resort to go slow, he had continued to indulge in the above pernicious misconduct. In the above circumstances, the Enquiry officer as has found Mansoor Ahmed guilty of wilful in-subordination indulging in wilful go slow and the Enquiry Officer found Manssoor Ahmed indulging in concerted go slow along with other co-workers of the Department. Accordingly the 30 Enquiry Officer consequentially also held that Mansoor Ahmed was guilty of acts, subversive of discipline in the premises of he Establishment. While coming to the conclusion under Part-1 Award, even the Labour Court has 35 given a finding that the Enquiry Officer was right in coming to the conclusion that Mansoor Ahmed was guilty of the charges levelled against him. However, since a plea of victimisation has been taken by Mansoor Ahmed,l have 40 once again gone through the entire evidence led before Enquiry-Officer . In this matter , 1 find that the Company has led the evidence of two Senior Officers/Foremen. Shri Naik,in his oral testimony has deposed on behalf of the company that he has been working in the company for 22 years and at the relevant time Mansoor Ahmed was also working under him in the factory. He further deposed that he had himself signed the complaints dated July 19, 1982 (Exhibit I), July 20, 1982 (Exhibit J)and also July 21, 1982 (Exhibit K). These complaints were produced before the Enquiry Officer. Shri Naik has identified his signature and has stated that the contents of the said complaint are correct. He has further deposed that on the Above three dates, Mansoor Ahmed stopped his work and he also told his other coworkers to stop the work at 2.35 p.m., 1.35 p.m and 2.40 p.m. respectively on the above three dates. He has further deposed that on account of the above wilful go slow which was indulged in concerted basis, 1 there was a shortfall in production of pairs viz, 270, 236 and 270,respectively. He has further deposed that the Junior Foreman Shri Rao had repeatedly instructed Mansoor Ahmed to resume his work, but he refused to do so. In the 1 present matter,unlike the earlier matter,Shri Naik has produced Saldo for the month of May 1982 and also for July 19, 1982, July 20, 1982 and July 21, 1982 which is the documentary evidence which corroborates the oral evidence of Shri Naik. He has further deposed that the said Saldo has been initialled by him and they were shown to the representative of Mansoor Ahmed. Mr. Naik has further deposed that Mansoor Ahmed was warned even earlier as indicated by. the complaints made by him against the charge sheeted workman. He has denied that the said complaints are of cyclostyle nature. In his cross-examination, he has further stated that the working of shoe lasting is carried out by a team of five workers and the normal production is generally given by the said team and in case if a worker falls sick or meets with an accident, he is immediately replaced by another worker so that the production doesn’t suffer. He has further deposed that Mansoor Ahmed never complained to him about his sickness or illness on the above three dates. He has further deposed that even on July 20, 1982 , he instructed Mansoor Ahmed to give normal production. Ale company further led evidence of another Senior Foreman Shri Bangera who has deposed that on July 19, 1982, Shri Bangera and the worker concerned were in the first shift and that he had instructed the charge sheeted workman not to work slowly and despite instructions, Mansoor Ahmed stopped his work at 2.35 p.m., much before the closing of shift hours. He has further deposed that he personally checked the Saldos and he found that the productions given was less than the estimated Production of pairs. He has then the figures of the shortfall on that day viz T70. He has further deposed that Mansoor Amhed stop Ped his work before the shift hours even on July 20, 1982 and July 21, 1982. He has also produced the Saldos for April and May 1982 in order to show the production level attained by Mansoor Ahmed prior to the above three dates viz July 19, 1982, July 20, 1982 and July 21, 1982. In his cross-examination, Shri Bangera has further deposed that even his junior foreman had reported to him about less production being given by Mansoor Ahmed. He has further deposed that he was checking the production of Mansoor Ahmed from time to time. He has further stated that the written complaints were only given by the Senior Foreman Shri Naik to the Management. This evidence of the company which is corroborated by documentary evidence, is further supported o by the admissions of Mansoor Ahmed who has deposed in his evidence at page 174 of the paper book that he was one of the workers in the team appointed by the Management to work in the Shoe Lasting Department. He has further deposed that he was not responsible for fall in production. This evidence at page 174 conclusively establishes that there was a shortfall. Further, at the same page 174, Mansoor Ahmed has conceded that the figures of shortfall in production 9 enumerated in the chargesheet are true and correct. In the above circumstances, 1 am satisfied with the contention of Shir Rele that the sub-sequent oral testimony made by Mansoor Ahmed before the Labour Court ought not to he is believed, particularly when that oral testimony is contrary to the statements made by Mansoor Ahmed at page 174 before the Enquiry Officer and also in view of the fact that oral testimony before the Labour Court is merely a bald statement which is not supported by any particulars. In fact, no steps were taken in the present matter to contradict the evidence of Mansoor Ahmed before the Domestic Enquiry. In any event, Saldos, duly initialled by the Foremen were produced before the Enquiry officer.They were inspected by the representative of Mansoor Ahmed and the saldos clearly indicated fall in production on the above three dates. The fail in production is further conceded even by Mansoor Ahmed. In the above circumstances, there is a clinching evidence on record in that matter to show that Mansoor Ahmed resorted to an(wilful go slow. He was responsible for concerted go slow and had committed breach of the undertaking given earlier by him and despite Memos/warnings being given to him by the officers, he continued to resort to wilful go slow.
Further, as indicated hereinabove, he continued with the pernicious activity per se for three days and as a result, I am satisfied that in the present case, the charge was conclusively proved and that in any event, the company cannot be said to have acted unjustly or out of victimization. In the present matter, the action of order of dismissal is based on misconduct. It is not a case where ostensible reasons differ from actual or real reasons. It is not a case where the action is based on motive. This is a case where the action is found on misconduct which is of a serious nature as held by the Supreme Court. 20 The test of victimization is that the ostensible reasons given by the employer are not the real reasons. This case conclusively proves that the finding of the Enquiry officer is based on documentary and oral evidence. Even the Part – 125 Award accepts those findings and in the present matter, the workman has not proved the charge of victimization against the company. In the circumstances, all the three charges levelled against the workman are duly proved. Hence the Labour Court should not have granted reinstatement, particularly when a serious misconduct has been committed and even the past record is not unblemished. When a worker misinterprets an Agreement on bonus and when such a worker is a Trade Union activist, it is certainly a serious charge because it leads to industrial unrest and for that reason Mansoor Ahmed was suspended even earlier as indicated by the past record. Hence, on all counts it is proved that Mansoor Ahmed was guilty of misconduct and that he has failed to prove victimization on the part of the company imposing order of dismissal.
9. For the reasons given above, the following order is passed :
ORDER
(i) Rule is made absolute in terms of prayer clause (a).
(ii) The company would be entitled to withdraw the amount which they have deposited is with the Prothonotary and Senior Master, High Court, Bombay, at the time of admission of the writ petition. However, it is clarified that under the above facts and circumstances of the case, the company will not take any action against the retired delinquent Mansoor Ahmed to recall the dues which are paid by the company. The workman has retired during the pendency of the matter and, therefore, in the fitness of as things, 1 am of the view that the Company will not take any steps to recall the money paid by the Company to the said workman.
(iii) Prothonotary and Senior Master is directed to act on an ordinary copy of this Order, duly authenticated by the Associate of this Court, in order to enable the Company to withdraw the moneys which they have deposited in this Court, pursuant to the interim orders passed during the pendency of the writ petition.
Issuance of certified copy of this Order expedited.