IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2674 OF 2005
Mr.Daman Chetandas Meghani,
Flat No.A-201, Building No.2,
"Shub Labh", Near Mahavir Nursing
Home, M.B.Estate Road,
Virar (West), Dist.Thane-401 303. ...Petitioner
V/s.
M/s.Moulds & Dies Pvt.Ltd.,
Sunder Baug Estate,
L.B.Shastri Marg,
Kurla, Mumbai-400 070 ...Respondents
......
Mr.S.C.Naidu
Petitioner.
ig i/b M/s.C.R.Naidu & Co. for
Mr.V.P.Vaidya for Respondents.
......
CORAM: A.M.KHANWILKAR, J.
MARCH 12, 2009.
JUDGMENT :
1. This Writ Petition under Article 226 of
the Constitution of India is directed against the
Judgment and Award passed by the Presiding Officer
11th Labour Court, Mumbai dated 30th November 2004
in Reference (IDA) No.238/1999. The terms of
reference is articulated in the Schedule which
reads thus:
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“Shri Daman Chetandas Meghani should be
reinstated with full back wages and
continuity of service w.e.f. 21/5/1994.”
2. The background in which reference under
Section 39 r/w Section 10(1) and 12(5) of the
Industrial Disputes Act, 1947 came to be made by
the appropriate Government of Maharashtra in
respect of the industrial dispute, is that, the
Petitioner, who was working as turner in the
factory establishment of Respondent Company at
Kurla, was dismissed on the ground of proved
misconduct.
The said action was taken in the
context of the report submitted by one of the
Director of the Respondent Company Mr.Nikhil
Pasricha dated 18th December 1993. By the said
communication addressed to the Managing Director of
the Respondent Company, the said Director placed on
record his experience about the humiliating
behaviour of the Petitioner on 17th December 1993
in the following words:
“Dear Sir,
Sub : Complaint of mis-behaviour with me
against Mr.Dhaman Meghani.
With reference to above I wish to inform
you that on 1’7.12.1993 at about 5.00 P.M.
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when I was in the workshop, I noticed that
Mr.Dhaman Meghani, Lathe Operator was
standing idle and doing no work. His
Machine was also stopped.
I enquired from Mr.Dhaman Meghani as to
why he was not working on the Machine, in
reply he told me in a very rude and
indisciplined manner that I have no tool
to operate my Machine.
I told him that the tool was provided to
him on 11.12.1993 and there after you
remained absent for 2 days eg; 13th &
14th December, 1993 and what happened to
that tool to which he replied that the
tool was broken and he had informed the
Supervisor, where as in fact the
Supervisor himself is not reporting for
work since 12.12.1993.
When he was talking to me in a rude and
indisciplined manner I told him to talk to
me properly and behave in a disciplined
manner.
I cautioned him for mis behaviour and
language used towards me as he was all
along addressing me as “TU” and further
said “what can you do to me”.
When I told him to keep quiet and mind his
work he picked up an Iron Rod and
threatened to assault me and started
hurling filthy abuses at me.
The above incident was witnessed by other
workmen in the workshop.
I being Director in the Company take
serious note of such humiliating behaviour
of Shri.Dhaman Meghani towards me and
request you to take suitable action in
this matter.
Thanking You,
Yours faithfully,
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Sd/-
(NIKHIL PASRICHA)
DIRECTOR”
3. On the basis of said report, charge-sheet
was prepared and served on the Petitioner dated
21st December 1993 which reads as follows :
“This is to inform you that a complaint
has been received by me from Shri.Nikhil
Pasricha, a Director of the Company that
on 17.12.1993 you behaved in a rude andinsubordinate manner towards by
threatening to assault and also hurling
filthy abuses at him.
A copy of the complaint is attached for
your information.
Even earlier you have behaved in similar
manner towards even the Managing Director,
that is myself. However since youtendered your apology, no serious action
was taken against you.
It seems, inspite the apology earlier
given, you have not improved your conduct
and behaviour towards your Superiors.
We also find that you are very irregular
in your attendance and remain absent
without prior permission. The details of
your Absentism during the period from
1.1.1993 to 20.12.1993 is enclosed
herewith.
Your production record also is much below
the normal production given by other
Machine Operators.
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You are therefore charged with the
following misconducts:-
1. Wilful insubordination and
indisciplined behaviour towards
Shri.Nikhil Pasricha, the Director of the
Company on 17.12.93 at about 5. P.M. onthe floor of the workshop.
2. For riotous behaviour when you pick up
an iron rod threatening to assault, the
Director Shri.Nikhil Pasricha during theincidence on 17.12.1993 at about 5. P.M.
in the workshop.
3. For remaining absent of work without
permission of 10, 13 & 14 of December,1993.
4. For wilfully giving less production
compared to other Machine men on your own
Machine. The Management takes a serious
view of your above acts of misconduct and
you are called upon to explain as to whydisciplinary action should not be taken
against you.
Your explanation should be submitted
within 48 hrs. on receipt of this
chargesheet.
Further action in this matter will be
considered on receipt of your explanation.
In view of the seriousness of the
misconducts levelled against you, you are
suspended from work, pending Managementsfinal decision in this matter.”
4. It is the Respondent’s case that when the
said charge-sheet was attempted to be served on the
Petitioner on 22nd December 1993, he refused to
accept the same and created scene which became
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independent cause for proceeding against the
Petitioner on the ground of misconduct.
Accordingly, second charge-sheet was prepared on
27th December 1993, which was later on served on
the Petitioner. The same reads as follows:
“IInd Charge Sheet
It is further reported to the undersigned
that on 22.12.93 at about 3.15 p.m. whenyou were served with the chargesheet dtd.
21.12.1993 by the Supervisor Shri.Ramesh
Chuttani, you refused to accept the same
and threw it on the Table.
You also started shouting filthy abuses
against the Directors threatening with
physical assault etc.On hearing the commotion created by you,
the undersigned came to the office and
asked to keep quiet and accept the chargesheet and submit your explanation, but
instead of listening to the undersigned
you also started threatening the
undersigned saying that you will set us
both (i.e.: undersigned and anotherDirector Mr.Nikhil Pasricha) for issuing
the charge sheet.
The charge sheet however was subsequently
accepted by you but you refused to
acknowledge the receipt of the same whichalso you subsequently signed by you on
22.12.1993 but delivered in the office on
24.12.1993.
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Again on 22nd Dec.1993 at about 3.25 p.m.
when you came to collect the advance in
the office on the 1st Floor (above the
Factory Floor) you, on seeing Shri.Nikhil
Pasricha who was sitting in his cabin
unprovokedly started shouting filthy
abuses at Shri.Nikhil Pasricha, the
Director of the Company and the same was
witnessed by all the staff in the office.
On hearing commotion created by you in the
office, the undersigned came up and asked
you to keep quiet and take your advance
and go. Even thereafter while leaving the
office till the last you were abusing and
threatening Mr.Nikhil Pasricha and also
the undersigned.
You are therefore charged with the
following misconduct:-
1.
igFor insubordinate and indisciplined
behaviour when on 22.12.1993 at about 3.25
p.m. you started shouting abuses in most
filthy language towards Shri.Nikhil
Pasricha ‘Director’ who was sitting in his
cabin across the office hall.
The abuses used by you were
1. Kutte (2) Behanchod (3) Maa-chod etc.
etc.
When the undersigned asked to keep quiet
and leave the office premises, you also
started abusing the undersigned and
threatened saying that: “Hum Tum Dono ko
sida kar dega aur dekhlega.”
Your above misbehaviour constitutes to
serious act of misconduct being an act
subversive of discipline and good
behaviour on the premises of the
establishment.
You are already under charge sheet for
similar misconduct and you have again
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indulged in to the same. The Management
therefore takes a very serious view of
this matter.
2. For refusing to accept the charge
sheet dtd. 21.12.1993, when served you at
about 3.15 p.m.
You are directed to submit your
explanation in respect of the above charge
sheet within 48 hrs. on receipt of this
charges sheet.
Further action in this matter will be
considered on receipt of your
explanation."
5. It is the Respondent's case that after
service of the charge-sheet, due enquiry was
conducted
in which the Petitioner did not
participate. As a result, the Enquiry Officer
submitted his report and finding, on the basis of
which, Director Anita Pasricha issued dismissal
order against the Petitioner on 20th May 1994 which
reads thus:
“Sir,
This is in continuation of the Show Cause
Notice dtd. 6.5.1994 in respect of the
Charge Sheets dated 21.12.93 and
27.12.1993 and the subsequent Enquiry
conducted by an independent EnquiryOfficer and his report and finding wherein
he has found you guilty of the charges as
specified in his report and findings and
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Director of the Company for necessary
action, as the Managing Director is not
capable of taking any decision, since he
has been representing the Company in the
Enquiry proceedings.
I have gone through the Enquiry
proceedings and the report and findings ofthe Enquiry Officer and find that, inspite
of giving you sufficient opportunity to
attend the Enquiry and to participate you
have failed to avail of the opportunities
given to you by the Enquiry Officer and assuch the Enquiry is in confirmity with the
principles of Natural Justice and we are
in confirmity with the report and finding
of the Enquiry Officer.
The proved Acts of misconduct committed by
you are of a grave and serious nature and
warrant punishment of the dismissal fromservice. I have also gone through your
part records and find no extenuating
circumstance to reduce the punishment, as
such you are hereby dismissed from servicewith immediate effect i.e. from
21.5.1994.
You are directed to collect all your legal
dues if any from our accounts department
on any working day, during working hourswith prior appointment.
Yours truly,
For MOULDS & DIES PVT.LTD.
(ANITA PASRICHA)
DIRECTOR”
6. After the service of dismissal order, the
Petitioner filed complaint under the provisions of
The Maharashtra Recognition of Trade Unions &
Prevention of Unfair Labour Practices Act, 1971.
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However, the said complaint was disposed of without
examining the merits by the Industrial Court on 3rd
April 1998 for want of jurisdiction. It is only
thereafter the Petitioner submitted application to
the Management on 22nd April 1998 raising dispute.
However, as no response was received from the
Management, the Petitioner submitted representation
to the Commissioner of Labour dated Nil which was
received in the Office of the Commissioner of
Labour on 13th May 1998. Acting upon the said
representation, the Conciliation proceedings were
resorted
to which, however, failed. On receipt of
the failure report, the appropriate Authority in
exercise of powers of Government under Section
10(1) and Section 12(5) of the Industrial Disputes
Act ordered issuance of Notification making
reference to the Labour Court, Mumbai and
formulated the issue as referred to earlier.
Thereafter statement of claim was filed by the
workman on 9th September 1999. The Respondent
Company filed written statement contesting the
reference proceedings. On analysing the material
on record and the stand taken by the rival parties,
the Labour Court by Part-I Award passed on 8th May
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2002 took the view that the departmental enquiry on
the basis of which order of dismissal came to be
passed by the Respondent was vitiated by principles
of natural justice. The view so taken by the
Labour Court came to be confirmed by this Court in
its order dated 23rd February 2002 passed in Writ
Petition No.104 of 2004 filed by the Respondent
Company. As a consequence of order dated 8th May
2002, the Labour Court allowed the parties to lead
evidence with regard to the charges in respect of
which the Respondent proceeded to take action
against
the Petitioner. In the said enquiry, the
Respondent Management relied on the evidence of its
witness Mr.Nikhil Pasricha and of Mr.Ramesh
Chuttani. The Petitioner, however, only examined
himself. The Labour Court identified the four
charges emanating from the first charge sheet as
follows:
“1) Willful insubordination and
indisciplined behaviour towards Shri
Nikhil Pasricha, the Director of the
company on 17.12.1993 at about 5.00 p.m.
on the floor of the workshop.
2) For riotous behaviour when you pick-up
on Iron rod threatening to assault, the
Director Shri Nikhil Pasricha during the
incidence on 17.12.1993 at 5.00 p.m. in
the workshop.
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3) For remaining absent of work without
permission on 10, 13 and 14 of December
1993.
4) For willful giving less production
compared to other machine men, on your own
machine.”
7. The Labour Court has then adverted to
second charge-sheet which framed following two
additional charges against the Petitioner, namely:
“1) For insubordinate and indisciplined
behaviour when on 22.12.1993 at about 3.25
p.m. started shouting abuses in mostfilthy language towards Shri Nikhil
Pasricha “Director” who was sitting in
his cabin across the office hall.
The abuses used by Mr.Meghani were; 1)
Kutte, 2) Behan-chod, 3) Maa-chod etc.etc.
When the Managing Director asked to keep
quite and leave the office premises
Mr.Meghani started abusing and threateningsay that, “Hum Tum Dono Ko sida kar dega
aur dekhlega”.
2) For refusing to accept the charge sheet
dated 21.12.1993 at about 3.15 p.m.”
8. Respondent Management relied on evidence
of its witness Nikhil Pasricha. With a view to
substantiate the aforesaid charges in the first
charge-sheet, the Respondent’s witness Nikhil
Pasricha in Paragraphs 6 and 9 of the affidavit in
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lieu of examination-in-chief has stated thus :
“6. I say that on 17.12.1993 at about 5
p.m., I went to the workshop. I noticedthat the Second Party workman was standing
idle and was not doing any work. So much
so that the machine on which he was to dothe work was also stopped and no
production was being done on the said
machine. I was surprised at the attitude
of the Second Party workman and therefore
enquired from the Second Party, thereasons for him as not to work on the
machine. Instead of giving him
satisfactory explanation, the Second Party
workman in a very rude and indiscipline
manner shouted at me by saying, “I have notool to operate my machine”. The
submissions of the Second Party were not
satisfactory and therefore I explained tohim that the tool was provided to him on
11.12.1993. There was no work done by him
on 13th and 14th December, 1993 because
the Second Party workman was absent. ShriDaman Meghani thereafter informed me that
the tool so provided was broken and that
he had informed the supervisor to this
effect. I informed the Second Party
workman as not to give any false and bogus
reasons because the concerned supervisorhad not been reporting for work in the
factory since 12.12.1993 and thus, by noway, it is possible for you to report
about the tool being broken, to the
concerned supervisor. Shri Daman Meghani
came to know that the explanation given by
him, have been substantially proved to befalse and that his act of not doing any
work on 17.12.1993, though being provided,
has come to be proved as a gross
misconduct. Thus, Shri Daman Meghani
flared up, and in the most agitative and
belligerent manner, started shouting atme. The temper was high and behaviour was
rude which was an indiscipline act. Shri
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to behave properly and not to raise his
voice or being indiscipline,m but submit
proper explanation for his not doing any
work on the lathe machine. Surprisingly,
Shri Daman Meghani instead of concealing
all his misconducts, again indulged
himself by shouting in the most
threatening language against me. He lost
all norms of discipline and picked up an
iron rod with intentions to assault me.
He was hurling filthy abuses at me. I
thought fit and proper as not to continue
to be inside the workshop any further as
probably, Shri Daman Meghani may resort to
threatenings into a reality and thus, I
went up to the office and apprised the
Managing Director of my Company of the
aforesaid incidents in writing.
9. I say and submit that the act
committed by Shri Daman Meghani is
disturbing the industrial peace of the
factory. It was an act most unbecoming of
him. As a matter of policy and principle,
we were never averse to the union
formation and had the best of relations
with the Union so much so that our Company
had also entered into a settlement
determining the service conditions of the
workers with the Union. Shri Daman
Meghani however, considered himself to
have a privilege of behaving in a rude and
indecent manner against the directors and
the officials of the Company merely
because he was a member of the union. The
abuses and the indiscipline acts of Shri
Daman Meghani upon me being one of the
directors of the Company, in the presence
of other employees have caused immense
humiliation and embarrassment to me. I am
certain that if I had continued to remain
inside the workshop, Shri Daman Mehgani,
would not only have further aggravated but
in all certainties, would have committed
assault upon me. His language, behaviour
and temperament were most indecent and
unfit to be an employee of our Company. I
say that the misconducts committed by Shri
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daman Mehgani is grave and serious to
warrant a punishment not less than a
termination. The termination so effected
be letter dated 20.5.1994 by the Company
is just, legal, fair and proper. I say
that if Shri Daman Meghani is granted
reinstatement and/or backwages, it would
cause irreparable loss, harm and injury to
the First Party Company which cannot be
compensated in terms of money.”
9. Insofar as the charges arising out of the
second charge-sheet, the witness has deposed in
Paragraphs 7 and 8. It is, however, not necessary
to highlight the evidence regarding second
claim
charge-sheet, as the Labour Court has discarded the
of the Respondent Management in that behalf
which finding has not been challenged by the
Respondent Management. Be that as it may, the
witness was cross-examined by the second
party/workman. However, with regard to the
material facts in relation to the incident occurred
on 17th December 1993, the witness has withstood
the cross-examination. As a matter of fact, from
the tenor of cross-examination, there was no
attempt to allege falsity of the episode deposed by
the management witness. The cross-examination
proceeded on the lines that the Petitioner was of
the age of witness’s father and that the witness
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was not aware as to when the Petitioner had joined
the Respondent Company. Even in the
cross-examination, this witness has deposed that on
the given day (i.e. 17th December 1993), the
workman was in second shift duty and when he was
asked why he was standing idle, he replied that he
did not have the required tools to operate the
machine. He has also deposed that the tools which
are supplied to the workman to cut the iron bars
were available in the Stores and delivered when the
workman reports in that behalf to the Supervisor.
The
cross-examination then proceeds on the lines
that whether such record was maintained in the
Stores by way of requisition slip and the contents
of the requisition slip. The witness has replied
that he was not aware as to whether the requisition
slips are placed on record for requisitioning the
tools. The witness was then asked whether the life
of the tool depends on the length of the steel to
be cut and that, after cutting of the iron bar, the
sharpness of the tools is reduced. The witness has
further asserted that it is for the workman to
regrind the tool himself. The witness has also
deposed that in exceptional cases, the tools would
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break. He has denied the suggestion that the
workmen are required to write requisition slips for
tools one or two days in advance. The witness has
admitted that the workman has demanded tools to the
Supervisor on 11th December 1993 and volunteered
that the same were supplied to the Petitioner. He
has replied that he was not aware as to whether any
proof regarding such supply of the tools has been
placed on record. The cross-examination then
proceeds with the details regarding absence of
Supervisor Ramesh Chuttani on 12th and 13th
December
1993 and that the Petitioner was also on
leave on those days. The suggestion made to this
witness that tools were not supplied to the
Petitioner on 11th December 1993 as the Supervisor
was absent on that day has been denied. This
witness has also denied the suggestion that the
tools made available to the Petitioner had become
useless due to utilisation on 15th and 16th. This
witness has also asserted that he had himself
ascertained from the Stores and found that tools
were already issued to the Petitioner on 11th
December 1993 which position was confirmed from the
requisition slip. Then suggestion is put to this
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witness that he did not like the words of the
Petitioner addressing him in Hindi as “TU”. He has
also denied the suggestion that being addressed as
“TU”, he got annoyed and abused the workman at the
top of his voice and threatened him to slap. In
response to the question put during the
cross-examination, the witness has denied that the
Petitioner retorted that he would also slap if the
witness had threatened to slap the Petitioner.
This is the only cross-examination relevant on the
point in issue with regard to the incident of 17th
December
1993 concerning the charges of the first
charge-sheet.
10. As aforesaid, the Management also examined
Ramesh Chuttani as its witness. Essentially, this
witness was examined in respect of incident of 22nd
December 1993 concerning the second charge-sheet.
However, this witness has also deposed on the facts
which may be relevant to consider the charges in
the first charge-sheet. In the affidavit in lieu
of examination-in-chief, this witness has stated
that he was working as Supervisor with the
Respondent Company for more than 18 years and that
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the Petitioner was working in the factory for last
several years as turner on the lathe machine. In
Paragraph 4 of his evidence, he has deposed that
the tools required by the operator are issued on
the basis of the requisition slip and that,
Petitioner was last issued the tools on 11th
December 1993. He has then deposed that he
proceeded on leave on 12th December 1993 onwards.
The witness then stated in paragraphs 8 and 9 of
the examination-in-chief as follows :
“8.
igI say that I am looking after the
production of the Second party workman andI always found that production given by
him was extremely low and undesirable.
The factum of such low production was
reported by me to the Management on
several occasions. I have also verbally
warned Shri Daman Meghani to improve hisproduction. It is true that I have not
given any Memo to the Second Party workmanbecause ours is a very small establishment
and much of the work is done orally.
9. I say that I have been maintaining the
production register which records theproduction given by each and every
employees. The production record of the
Second Party for the period from Jan.1993
to Dec.1993 would reveal the extent of low
production given by him.”
11. The witness was cross-examined with regard
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to the above facts as can be discerned from
Paragraphs 12 and 13 which reads thus :
“12. There is a register maintained by
the company in respect of production given
by the worker, however the productionregister is not maintained daily since I
am the only persons to maintain that
record. It is because sometimes I was to
go outside and due to that it was not
possible for me to maintain productionregister daily I cannot say that the
number of operators working in the company
in December 1993. I do not know as to
whether the company did not file any
record to show that Meghani’s productionwas less than other employees of the
company. I have mentioned in my affidavit
that the production given by Meghani wasless than other workers. It is not
correct to say that Meghani has given more
production and I am deposing falsely in
that regard. It is not correct to saythat I did not verbally warned to Meghani
about his less production.
It is true that the company used to
maintain separate record about supply of
tools to the workers. I do not know as towhether the company did not file any
document in respect of supply of tools tothe concerned workman on 11.12.1993. It
is not correct to say that on 11.12.1993
no tools were supplied to the second party
workman.”
12. On the other hand, the Petitioner examined
himself and in his affidavit in lieu of
examination-in-chief in relation to the incident of
17th December 1993, the Petitioner has stated thus:
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“4. I say that on 17th December 1993, I
was in the 2nd shift commenced at 3.30
p.m. I say that I reported my duties at
3.30 p.m. and as usual I cleaned the
machine before commencing the work and Iwas standing in front of the Lathe Machine
provided to me for want of tools to
commence the work. I say that at thattime one of the Directors viz.Mr.Nikhil
Pasricha came to me and enquired as to why
I was waiting. I replied to him that the
tools required for operating the machine
was broken and that I had already informedof the same to my supervisor on 11th
December 1993 itself but I did not receive
it. I say that on hearing me, Mr.Pasricha
got annoyed and he threatened to slap me.
I say that when I asked for the reason forthe said threat, the said Director told
that during the course of the
conversation, I had uttered the word “Tu”
while referring to Mr.Pasricha. I say
that as Mr.Pasricha was very much younger
to me and that I had even worked with his
father and hence I used the word “Tu”. Isay that when he threatened me to slap, I
told him if he slaps me I will also slap
him. I say that I have not abused neither
Mr.Nikhil Pasricha or other person on that
day.”
13. The rest of the evidence of the Petitioner
is in respect of incident of 22nd December 1993,
The Petitioner has been cross-examined on this
material aspects. In the cross-examination, he has
admitted that in the Office, Directors of the
Company used to sit. He has stated that there is a
partition in the Office and to the other side of
the Office, the Directors used to sit. He has
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denied that he was aware that the Directors used to
see the staff from their cabin. He has also
admitted the presence of other named staff in the
Office on the given date. He has admitted that he
knows Nikhil Pasricha and that he was Director of
the Company, who incidentally is son of Avinash
Pasricha, the founder member of the Company. He
has denied knowledge about the Nikhil Pasricha’s
qualification. He has gone to the extent of
denying that the knowledge of Engineering Graduate
is more than his personal knowledge. He has
admitted that Ramesh Chuttani is only Supervisor in
the Company and that he was taking work from all
category of workers by allocating the work to the
workers. He has admitted that said Ramesh Chuttani
was responsible to supply raw material and to
maintain production record. He has admitted that
belts, spare-parts, tools, instruments and delivery
challans are to be kept and maintained in the
Stores. He has also admitted that the person who
sits in the Store Room was responsible to look
after the Stores Department and sometimes, Ramesh
Chuttani used to sit in the Stores. He has
admitted that the Policy of the Company is that the
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materials from Stores can be taken out only on
submitting requisition slip. He has denied the
suggestion that occasionally, tools, instruments
etc. were taken out from the Stores. He has
admitted that he was working in the second shift in
the factory on 17th December 1993 which starts at
3.30 p.m. He has denied the suggestion that Nikhil
Pasricha had come to the shop floor on that day at
5.00 p.m. He has admitted that Nikhil Pasricha saw
him idle at the lathe machine at about 3.40 p.m.
However, he has admitted that when Nikhil Pasricha
saw
him idle at lathe machine, asked him as to why
he was idle at the lathe machine. He has denied
the suggestion that he roughly told him (Nikhil
Pasricha) that he do not have tools. He has
volunteered that he told Nikhil Pasricha the reason
of his idleness for want of tools and that, he was
making efforts with whatever tools he had with him
at that time. He has denied the suggestion that
when he told Nikhil Pasricha that he had no tools,
he was told to take the tools from the Stores. He
has then stated that as soon as he disclosed that
he had no tools, Nikhil Pasricha raised his hand to
beat him. Significantly, he admits that he had
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taken the tools from the Company on 11th December
1993. He has also admitted that if the sharpness
of the tools is lost, the operator of the tools has
to grind it to make it sharp. He has further added
to it that if any tool is broken, it has to be
deposited in the Stores. He has denied that on
17th December 1993, in annoyance he had lifted the
iron bar in order to assault Mr.Nikhil Pasricha.
He has also denied suggestion that if Nikhil
Pasricha had continued to remain at that place he
would have assaulted him. He has also denied the
suggestion
that therefore Nikhil Pasricha went to
his cabin leaving the place. He has also denied
the suggestion that he was shouting at the top of
his voice and was dishonouring Nikhil Pasricha by
using filthy words. He has also denied the
suggestion that Nikhil Pasricha did not threaten to
assault him and he was deposing falsely. The other
part of the cross-examination is not relevant to
the charges which have been held as proved by the
Labour Court in relation to first charge-sheet.
14. Analysing the above said evidence, the
Labour Court first examined the evidence of the
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Respondent. On analysing the said evidence, it has
found that the cross-examination of the
Respondent's witness or the evidence given by the
Petitioner was not relevant to rebut the fact that
on 17th December 1993 no incident as claimed by the
Respondent’s witness had occurred. It has also
noted that the evidence clearly establishes that
tools as requisitioned were in fact supplied to the
Petitioner. The Labour Court has then noted that
the claim of the Petitioner was that the tools
which were supplied were broken and useless for
which,
he could not continue with the work on the
lathe machine. The Labour Court has also noted
that it is not the case of the Petitioner that he
requisitioned the tools by filling the requisition
slip and that, it was not supplied to him. In
other words, the Labour Court proceeded to hold
that the tenor of cross-examination by the
Petitioner workman was of no consequence and that
the Respondent Management through their witness
have established that the stated incident had taken
place, which evidence has remained unshaken. The
Labour Court has positively found that the
cross-examination by the Petitioner did not impeach
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the credibility of the Management witness. The
Labour Court has taken the view that with regard to
the main allegation-that the Petitioner was seen
standing idle at the lathe machine by Nikhil
Pasricha and without any justifiable reason, he
behaved in manner alleged by Nikhil Pasricha, was
established. That was sufficient to proceed
against the Petitioner on the ground of misconduct,
as the evidence of Management witness was not
rebutted at all. In that, the Petitioner behaved
in an indisciplined and rude manner with Nikhil
Pasricha when asked about his idleness at the lathe
machine. The Labour Court has then adverted to the
cross-examination where suggestion was given to the
Management’s witness that he was annoyed because
the Petitioner used the word “TU”. While dealing
with that aspect, the Labour Court noted that these
are not only suggestions but has been pleaded as
defence which speaks volumes of insubordination and
defying the authority of the employer. The Labour
Court has opined that being senior in age, could be
no justification to defy the authority of the
employer and such defiance disregards the control
and supervision on him. The employee commits
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misconduct towards his employer. The Labour Court
has opined that such conduct of the workman of
challenging the employer (Director of the Company)
and to abuse and threaten him that he would slap in
return was subversive of discipline. The Labour
Court has also found that this suggestion does not
rebut the fact that incident as claimed by the
witness Nikhil Pasricha had not taken place at all.
This is the finding recorded by the Labour Court
with regard to the incident of 17th December 1993
which is ascribable to the first charge-sheet. I
am
not burdening this Judgment with the discussion
appearing in Paragraphs 11 and 12 concerning the
allegations in the second charge-sheet, as the
Labour Court has disregarded the claim of the
Management in that behalf and held that the stated
charges therein have not been proved. The Labour
Court in Paragraph 13 onwards has proceeded to
discuss the efficacy of the evidence given by the
Petitioner. In Paragraph 14, the details of the
cross-examination of the Petitioner are spelt out.
The Labour Court on analysing the evidence of the
Petitioner, proceeded to hold that the Petitioner
in his affidavit has claimed that he did not tell
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on enquiry made by Nikhil Pasricha that he had
already informed his Supervisor about the
requirement of production tool on 11th December
1993 and he did not receive it. The Labour Court
then found that this clearly shows that Nikhil
Pasricha rightly assumed that the Petitioner was
giving false reason. The Labour Court has then
found that the Petitioner was suppressing material
facts and there was justification for Nikhil
Pasricha to tell the Petitioner not to give false
excuse and to do his work. On analysing the
Petitioner's
evidence, the Labour Court has found
that the Petitioner's attitude was adamant enough
to constitute misconduct as alleged.
15. In Paragraph 15, the Court proceeded to
record that only two charges have been framed by
the management against the Petitioner/second party-
of wilful insubordination and indiscipline
behaviour towards Shri Nikhil Pasricha the Director
of the Company on 17th December 1993 at 5.00 p.m.
on the floor of the workshop and that of riotous
behaviour when the Petitioner picked up the iron
threatening to assault Director Nikhil Pasricha
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during the incident on 17th December 1993 at about
5.00 p.m. in the workshop. The Labour Court then
went on to hold that even if other charges are not
proved only one charge having been proved, the
employer would have right to inflict punishment on
the workman.
16. It then proceeded to examine the question
whether the quantum of punishment of dismissal
imposed by the Management was just and proper or
shockingly disproportionate. In this context, it
has noted that the Petitioner was in the employment
for over 34 years of his life with the Respondent
Company and it would be inhuman to take the strict
view to pass order of dismissal. With this
observation, the Labour Court has held that the
order of dismissal passed against the Petitioner
was extremely harsh punishment. Instead, in its
view, the Petitioner should be reinstated to
receive his legal dues depriving him of back wages
and continuity in service which would meet the ends
of justice. Having said thus, it proceeded to pass
the following award:
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“1. The reference is partly allowed.
2. It is hereby held that, the first
party succeeded in proving charge No.1 and
2 as is mentioned in the charge sheet
dated 21/12/1993.
3. The rest of the charges in the charge
sheet dated 21.12.1993, are not proved
before the court.
4. The first party failed to prove the
charges mentioned in Charge sheet dated
27.12.1993.
5. The punishment of dismissal needs to
be interfered after setting aside
dismissal of the second party w.e.f.
21.5.1994.
6.
igSince the misconduct at
as mentioned in the charge
21.12.1993 is proved,
Sr.No.1 and 2
sheet dated
the moulded
punishment shall be deprival of back wages
and continuity of service ordering his
reinstatement.
7. The first party employer is hereby
directed to pay all the legal dues to the
second party which are available to him
till 21.5.1994.
8. The first party is directed to pay the
legal dues forthwith.
9. The award be sent to the appropriate
Government for its publication.”
17. The Respondent Management has not
challenged the finding recorded by the Labour Court
that the punishment was shockingly
disproportionate. It has also not challenged the
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finding with regard to other charges as not proved.
It is the Petitioner/workman who has come by way of
present Writ Petition, questioning the finding
recorded by the Labour Court with regard to the two
charges which have been held to be proved against
him and further the order as passed of depriving
him of back wages and continuity of service. In
the circumstances, the scope of enquiry in the
present Judgment would be limited to the issues
raised at the instance of the workman.
18.
Insofar as the finding recorded by the
Labour Court that two charges have been proved
against the Petitioner, the argument is that the
said finding is manifestly wrong. It is further
contended that in any case, the finding recorded
with regard to the second charge having been
proved- regarding riotous behaviour of the
Petitioner, is untenable as no reason whatsoever to
support the same has been recorded by the lower
Court. Instead, the lower Court has straightaway
jumped to that conclusion. I shall deal with the
former contention first.
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19. On analysing the evidence on record and
keeping in mind the finding recorded by the Labour
Court, as referred to in the earlier part of this
Judgment, I have no hesitation in taking the view
that the said finding cannot be termed as
manifestly wrong or perverse. View taken by the
Labour Court is founded on the evidence on record.
I am in agreement with the said view. In that, the
Management witnesses have spoken about the actual
incident as unfolded on 17th December 1993 at 5.00
p.m. The tenor of cross-examination does not
discredit
the version given by the said witnesses.
Moreover, even the evidence of Petitioner also
militates against his stand. I have already
reproduced the evidence of Petitioner as well as
the Management witness in extenso in the earlier
part of this Judgment. The analysis done by the
Labour Court of the said evidence is
unexceptionable and perhaps the only conclusion
that could be reached.
20. Thus understood, no interference in
exercise of writ jurisdiction under Article 226 of
the Constitution of India is warranted. It is well
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established legal position that it is not open for
this Court to reappreciate the evidence with a view
to record a different finding of fact than the one
recorded by the lower Court merely because another
view was possible on the basis of same evidence.
As aforesaid, I have no hesitation in taking the
view that the opinion recorded by the Labour Court
on the point in issue is neither error apparent on
the face of the record, nor manifestly wrong or
perverse.
21.
Insofar as the latter argument is
concerned, that the Labour Court appears to have
straightaway jumped to the finding that even charge
No.2 of riotous behaviour of the Petitioner has
been proved is concerned, the argument though
attractive at the first blush, will have to be
rejected. Inasmuch as, the sequence in which the
evidence has been examined and considered by the
Labour Court is not happily worded. The Labour
Court could have analysed the matter in a better
way. For, the Labour Court has proceeded to
examine the evidence with regard to the two charges
together. I would have considered to set aside the
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finding qua this charge only if I were to be
convinced that there is absolutely no legal
evidence to support the said conclusion. However,
it is seen that the Plaintiff’s witness Nikhil
Pasricha has deposed about that fact in his
affidavit in lieu of examination-in-chief (in
Paragraph 6) that during the discussion, the
Petitioner indulged in shouting in most threatening
tone and language against him and lost all norms of
discipline and picked up an iron rod with intention
to assault him. That the Petitioner was hurling
filthy abuses to him for which he thought it proper
to remove himself from the workshop. In the
cross-examination, there is absolutely no case put
by the Petitioner to challenge this version. There
is not even a suggestion during the
cross-examination that the case so spoken by the
witness is false. The falsity has not been alleged
by the Petitioner even in his own evidence.
Indeed, the Petitioner has denied the suggestion
that had Nikhil Pasricha continued to remain in the
place, the Petitioner would have assaulted him.
The fact remains that the version of the Management
witness has not been challenged at all in the
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cross-examination. The argument of the Petitioner
that no independent witness was examined though
available, clearly overlooks that the Petitioner
had not even bothered to allege falsity of the
claim of the said witness nor confronted the
witness during the cross-examination or even
suggested that the said allegation was incorrect.
This is what the Labour Court has opined while
discussing the entire evidence of Respondent's
witness as a whole. Therefore, no fault can be
found with the finding reached by the Labour Court
that the
two allegations of insubordination and
indiscipline as also riotous behaviour of the
Petitioner have been proved on the basis of the
evidence given, including the admission of the
Petitioner in his own evidence.
22. In any case, I am in agreement with the
opinion recorded by the Labour Court that it is
enough for the Management if it were to prove at
least one charge against the Petitioner which may
justify the action against the Petitioner for
having committed misconduct inviting punishment of
dismissal from service. In the case of Sarabhai
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M.Chemicals (S.M.Chemicals & Electronics) Ltd. vs.
M.S.Ajmera & Anr. reported in 1980 (1) LLJ 295,
295
the Division Bench of our High Court has expounded
as to what amounts to insubordination and
indiscipline. It has further opined that it is not
as if action cannot be proceeded against the
employee of a solitary instance of lawful order and
that for sustaining such charge of insubordination
several repeated instances of disobedience are
necessary. In my opinion, the Labour Court has
rightly observed that the allegation of
indiscipline
ig behaviour as well as of riotous
behaviour of the Petitioner have been proved. Each
of them independently would be good enough to
dismiss the Petitioner, by way of punishment for
the said misconduct. Even for this reason, I see
no basis to exercise writ jurisdiction so as to
overturn the conclusion reached by the Labour Court
to the effect that the Management has proved
atleast charge of wilful indiscipline behaviour and
also of riotous behaviour of the Petitioner on 17th
December 1993 at about 5.00 p.m. in the workshop.
Taking overall view of the matter, therefore, the
conclusion reached by the Labour Court that the
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Management has proved at least two charges is
inescapable.
23. That takes me to the argument regarding
the quantum of punishment. Indeed, the Labour
Court has set-aside the order of dismissal and
instead, directed reinstatement of the Petitioner
with deprival of back wages and continuity of
service but to pay all the legal dues to the
Petitioner available till 21st May 1994. It is
also true that the Respondent Management has not
chosen
to challenge this part of the order passed
by the Labour Court. The question is: whether the
relief granted by the Labour Court can be said to
be inappropriate. The argument of the Petitioner
is that once the order of dismissal is set-aside,
it should necessarily be followed with an order of
reinstatement with back wages. In any case,
Clauses 6, 7 and 8 of the Award were
self-contradictory. In that, the employer is
directed to pay all the legal dues to the second
party which are payable to him till 21st May 1994,
but has wrongly limited it till that day even after
having directed reinstatement of the Petitioner-who
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in turn would be deemed to be in service till the
date of his superannuation.
24. Insofar as the view taken by the Labour
Court depriving the Petitioner of relief of back
wages and continuity of service is concerned, in
the fact situation of the present case, the same is
a possible view. Clauses 5 to 8 of the Award will
have to be read as a whole- as one complete
package. The purport of the said arrangement is
that the relief of setting aside of order of
dismissal
is granted to the Petitioner only by way
of indulgence, having rendered long 34 years of
service with the Respondent Company. The lower
Court has found that setting aside the order of
dismissal and instead, directing reinstatement of
the Petitioner with deprival of back wages and
continuity of service would meet the ends of
justice. Insofar as that view taken by the Labour
Court is concerned, I have no difficulty in
accepting it as it is. For, having regard to the
proved indisciplined behaviour and of riotous
behaviour of the Petitioner, that too, with the
Director of the Respondent Company, who
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incidentally happens to be the son of the founder
of the Company, any punishment less than dismissal
would be inappropriate. In other words, the Labour
Court has already shown indulgence to the
Petitioner by setting-aside the order of dismissal
and instead, ordering reinstatement of the
Petitioner without back wages and continuity of
service. That is a “lesser punishment” awarded to
the Petitioner.
25. To get over this position, Counsel for the
Petitioner
would argue that as per the provisions
of Standing Order No.25 of Bombay Industrial
Employment (Standing Orders) Rules, 1959, a workman
guilty of misconduct may be.- (a) warned or
censured, or (b) fined subject to and in accordance
with the provisions of the Payment of Wages Act,
1936, or (c) suspended by an order in writing
signed by the Manager for a period not exceeding
four days, or (d) dismissed without notice. It is
argued that the punishment imposed by the Labour
Court is not provided for in the said regime. The
argument though attractive, is inviting the Court
to hold that the order passed by the Labour Court
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is not consistent with the provisions of the extant
Regulations. If that contention is accepted, it
would result in setting aside of the order passed
by the Labour Court which inevitably would be
restoring the order passed by the Management of
dismissal from service. The punishment of
dismissal of service could be invoked in terms of
Standing Order No.24 in case of wilful
insubordination or disobedience, wilful slowing
down in performance of work, commission of any act
subversive of discipline or good behaviour on the
premises
of the establishment and also for refusal
to accept a charge-sheet. We are not concerned
with the last item of refusal to accept the
charge-sheet nor it is necessary to address whether
the act of commission and omission of the
Petitioner resulted in wilful slowing down in
performance of the work. However, the wilful acts
of commission and omission of the Petitioner which
have been proved, were clearly covered by the
wilful disobedience and of subversive of discipline
or good behaviour of the Petitioner on the premises
on the establishment.
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26. It was then argued that behaving rudely
does not result in any employment misconduct.
However, in the fact situation of the present case
and in the light of Standing Order No.24, this
argument is devoid of merits. Be that as it may,
the question is: in the fact situation of the
present case, whether deprival of Petitioner of
back wages with continuity of service can be said
to be shockingly disproportionate. As observed
earlier, the Labour Court has in fact showed
indulgence to the Petitioner. That finding would
run counter
to the claim that the punishment
ordered by the Labour Court is shockingly
disproportionate. In my opinion, therefore, the
order passed by the Labour Court of denying back
wages and continuity of service to the Petitioner
is just and proper in the fact situation of the
present case. The argument of the Petitioner that
such punishment cannot be imposed, as it is not
embodied in the Standing Order No.25 will have to
be stated to be rejected. Inasmuch as, the purport
of Section 11-A of the Industrial Disputes Act,
1947, empowers the Tribunal to order reinstatement
of the workman on such terms and conditions as it
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thinks fit, in the event the order of dismissal was
to be set-aside. The said provision expressly
provides that it is open to the Tribunal to give
such other relief to the workman including the
award of any “lesser punishment” in lieu of
discharge or dismissal as the circumstance of the
case may require. In that sense, it is not a case
of lack of authority in the Labour Court to have
modified the punishment from dismissal to one of
reinstatement without back wages and continuity of
service. Moreover, it is well established position
that relief
ig of back wages is not a necessary
corollary to the order of reinstatement. It is
open to the Court to either grant full back wages
or slice of a part thereof to be paid to the
workman when the workman is not wholly blameless.
In the present case, the finding of guilt is
recorded against the Petitioner and the charge is a
serious one. In such a case, non grant of back
wages or continuity of service cannot be said to be
shockingly disproportionate or impermissible.
27. Counsel for the Petitioner, however, has
placed reliance on the decision of the Apex Court
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in the case of Fakirbhai Fulabhai Solanki v.
Presiding Officer, I.T. Gujarat & Ors. reported
in 1986 (52) F.L.R. (S.C.) 688 to contend that
principle analogous to the exposition in this
decision be applied to the fact situation of the
present case. In that case, the observations have
been made in the context of proceedings under
Section 33 of the Industrial Disputes Act. The
question is: whether the principle relevant to the
said procedure can be applied to enquiry under
Section 10 of the Industrial Disputes Act. This
argument
has already been considered and rejected
as is noted by our High Court in the case of Bharat
Petroleum Corporation Ltd. v. Ramnath Jagdish
Tiwari & Anr. reported in 1995(2) Bom.C.R. 438.
In the said decision, after referring to the
exposition in the case of Ahmedmiya Ahmedji v. The
Indian Hume Pipe Co.Ltd. & Ors. reported in
1994(2) C.L.R. 206, in Paragraph 21, the Court
proceeded to observe that the order of approval
always relates back to the date of order passed by
the Management. The same principle is not
necessarily applicable to a case where reference is
made under Section 10(1)(c) of the Industrial
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Disputes Act unless it is held that no enquiry is
held by the Management or that the impugned enquiry
was held in violation of principles of natural
justice. Accordingly, the claim of full back wages
and continuity of service of the Petitioner inspite
of the finding with regard to the two charges
proved against the Petitioner is a tall claim of
the Petitioner in the fact situation of the present
case. That cannot be countenanced.
28. That takes me to the argument that on
reading
clauses 6 to 8 of the award, it would
appear the the same are contradictory. In any
case, it results in deprivation of legal dues
available to the Petitioner after 21st May 1994
though order of reinstatement is passed and the
Petitioner would have remained in service on
account of such order till he attained the date of
superannuation. This argument, I would consider
along with the argument of the Petitioner that the
Petitioner in any case was entitled for his legal
dues towards subsistence allowance in terms of
standing order 25 (5-A) which reads thus:
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“(5-A) Subject to the provisions of the
Payment of Wages Act, 1936 a workman who
is placed under suspension under
sub-clause (5) shall, during the period ofsuch suspension, be paid a subsistence
allowance at the following rates, be paid
a subsistence allowance at the followingrates, namely:-
(i) For the first ninety days of the
suspension period subsistence allowance to
be paid per month shall be equal to onehalf of basic wages, dearness allowance
and other compensatory allowance to which
the workman would have been entitled if he
were to leave with wages.
(ii) If the enquiry gets prolonged and the
workman continues to be under suspension
for a period exceeding ninety days, thesubsistence allowance to be paid per month
for a further period of ninety days shall
be equal to three fourths of such basic
wages, dearness allowance and othercompensatory allowances.”
29. Indeed, the Petitioner did not ask for
relief of subsistence allowance during the pendency
of the proceedings before the lower Court nor has
that ground been specifically taken in the Writ
Petition as filed before this Court. Nevertheless,
it is a pure question of law which is canvassed
before this Court. The question is: whether the
Petitioner can be deprived of even subsistence
allowance which is his statutory right on account
of Standing Order No.25 (5-A) referred to above.
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To consider this aspect, it would be apposite to
advert to the exposition in the case of Bharat
Petroleum Corporation Ltd. (supra). At least two
legal statements of law can be deduced from this
decision. Firstly, the extent of back wages to be
paid to workmen are dependent on variable factors
on a complex of circumstances and the imputation of
moral turpitude, etc. is of great importance in
the application of principle. Secondly, the
employee is entitled for subsistence allowance till
the order of dismissal is passed against him were
to be
confirmed by the Court unless it is shown
that it is the workman who was at fault which led
to the delay in the decision or enquiry. In such a
case, the theory of relation-back will apply. On
the other hand, if it is to be found that the
Management is not at all to be blamed, then the
theory of relation-back will apply, in which case,
the date of dismissal will be the date on which the
order was passed by the Management. This decision
in principle proceeds to uphold the right of the
employee workmen to get subsistence allowance
during the pendency of the enquiry until the
passing of the order of dismissal; and the theory
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of relation-back was to be applied in a given case
dependent on the fact as to whether the management
or the workmen was at fault. It will be useful to
refer to the decision of the Apex Court in the case
of Ram Lakhan & Ors. vs. Presiding Officer & Ors.
reported in (2000) 10 SCC 201 (paras 18 and 19)
which restates the legal position that it is the
right of the employee to claim subsistence
allowance for the relevant period. (Also see
B.D.Shetty & Ors. vs. Ceat Ltd. & Ors. – AIR
2001 SC 2953). In other words, the Petitioner is
entitled to
ig his statutory claim of legal dues
emanating from provisions of Standing Order
No.25(5-A) after he was suspended. The provision
is peremptory one requiring the employer to provide
subsistence allowance to the workmen during the
relevant period unless it was to be found that it
is the workman who was at fault in postponing the
enquiry or the proceedings. In the present case,
after the order of suspension was passed, no
subsistence allowance was offered to the
Petitioner. No grievance was made by the
Petitioner at any time in this behalf. Eventually
he came to be dismissed by the Respondent
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Management by order dated 21st May 1994. It is
noticed that after the order of dismissal was
passed, the Petitioner did not pursue proper remedy
so as to invite reference under Section 10 of the
Act. Instead, the Petitioner resorted to a
complaint under provisions of M.R.T.U & P.U.L.P.
Act which was eventually dismissed as the
Industrial Court had no jurisdiction. In that
sense, the Management cannot be blamed. It is
failure of the Petitioner to take recourse to
proper and correct legal remedy. The mistake in
adopting
wrong remedy cannot extricate the
Petitioner of the said obligation. Thus
understood, for non initiating reference
proceedings under Section 10 by the Petitioner till
13th May 1998 inspite of the order of dismissal
dated 21st May 1994, the Petitioner will have to
blame himself. For that reason, the Petitioner
would not be entitled for any relief of subsistence
allowance during the period from 21st May 1994 till
13th May 1998. However, the Petitioner would be
entitled for subsistence allowance for the period
from the date of suspension till the date of
dismissal i.e. 21st May 1994 and thereafter from
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the date of application to the Commissioner of
Labour (which was received in the Office of the
Commissioner of Labour on 13th May 1998) till the
date of his superannuation. The Petitioner is
entitled for this limited relief on the finding
that the theory of relation-back will not apply in
the present case having regard to the finding
recorded by the Labour Court in Para I of the Award
that the enquiry was held in violation of
principles of natural justice and which finding has
been already upheld by this Court. On attaining
finality
of the said finding, it would necessarily
follow that the order of dismissal dated 21st May
1994 was void and did not exist in law. The
Tribunal could not have for the first time passed
an order recording a finding of misconduct and thus
breath life into the dead shell of the Management
order for want of enquiry or for blatant violation
of rules of natural justice as is observed by our
Court in the case of Bharat Petroleum
Corpn.Ltd.(supra) (see Para 26). Accordingly, this
Petition succeeds only to the limited extent as
mentioned above, for which reason, I proceed to
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pass the following order :
1. The Writ Petition partly
succeeds with no order as to costs.
2. Clause 7 of the Award dated
30th November 2004 below Reference (IDA)
No.238 of 1994 shall stand modified to
read that the Petitioner is entitled for
"subsistence allowance" for the period
during
ig the date of order of suspension
till the date of order of dismissal (i.e.
21st May 1994) and for further period from
13th May 1998 when the Application for
making reference to the Commissioner of
Labour was made till the date of his super
annuation, in terms of Standing Order
No.25(5-A).
. Ordered accordingly.
A.M.KHANWILKAR, J.
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