JUDGMENT
B.P. Dharmadhikari, J.
1. The present petitioner is a textile mills under the management and control of National Textile Corporation (Maharashtra North), a subsidiary company of National Textile Corporation Ltd., a Government of India Undertaking. Respondent No. 3 herein was working at the relevant time as Cashier with it. He was dismissed on 12-9-1988 after departmental inquiry and Labour Court at Akola on 28-12-1993 granted him relief of reinstatement with continuity but without backwages. This judgment of Labour Court has been maintained by Industrial Court on 5th December, 1994. Both these orders are challenged by petitioner employer in present writ petition. On 23-1-1995 while admitting the writ petition for final hearing, this Court issued rule on stay but on 21-4-1995, as the hearing for stay was found to be taking same time as final hearing of main petition itself, writ petition was directed to be heard finally at early stage. It appears that thereafter petitioner moved Civil Application 2158 of 1995 for grant of interim orders and respondent No. 3 moved Civil Application 2159/1995 for dismissal of writ petition. On 11-9-1995 both these applications are directed to be heard at the time of final hearing. Thus, there are no orders of stay in the matter. It is not in dispute that the service conditions of respondent No. 3 are governed by Bombay Industrial Relations Act, 1946 i.e. BIR Act and the Certified Standing Orders saved under Section 123-A(b) of BIR Act.
2. Respondent No. 3 joined as Clerk in 1979 and was promoted as Senior Clerk in April, 1984. He was assigned the job of cashier from 1-7-1984. The wages of employees with petitioner were to be paid on 10-1-1988 and amount of Rs. 5,40,000/- (Five lakh Forty thousand only) was withdrawn by respondent No. 3 from State Bank of India, Akola on 9-1-1988. It is not in dispute that in the intervening night between 9th and 10th January, 1988 there was theft and total amount of 5,90,000/- (Five lakh Ninety thousand only) was stolen from the Mills. Respondent No. 3 was charge sheeted by 2 charge-sheets dated 13-1-1988 and 15-2-1988 for misconduct under items 24(d), (m), (u) and 24(d), (p) of Standing Orders. The departmental inquiry was then conducted and Inquiry Officer found him guilty of charge under items 24(m) and not guilty of misconduct under other heads of the Standing Orders. Employer accepted this finding and he was dismissed as per Standing Order 25(D) by order dated 12-9-1988. Respondent No. 3 challenged this dismissal by filing U.L.P.A. complaint 362/1988 before Labour Court, Akola under Section 28 read with Schedule IV item 1(a)(b)(c)(d)(f) and (g) of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 hereinafter referred to as MRTU and PULP Act. He contended that inquiry was not conducted in accordance with principles of natural justice, documents demanded by him were not produced and misconduct was not proved. He stated that he did not breajch any provision of any directions or guidelines issued by management about the safety of cash and he was not at all negligent in his duties. He also stated that copy of inquiry report or findings was not supplied to him. He contended that he got the findings along with dismissal order and the findings reached by Inquiry Officer were perverse. He disclosed that he followed the normal and usual procedure of keeping the cash even on 9th January and he was not expected to carry keys of safe/wooden boxes to his home. He contended that if at all there was any lapse in the matter, it was not on his part as Senior Officers did not make adequate provisions for safety as per circulars issued by Director of Finance. He further contended that there was no gross or habitual negligence on his part and his dismissal was ordered only for misconduct of minor or technical character. He stated that his past service record is unblemished and Standing Order 24(m) was not attracted. This complainant was opposed by present petitioners who contended that the grievance made was incorrect and without any merit. The circulars dated 3-7-1987 and 25-1-1985 issued by Director of Finance, N.T.C. pointed out by respondent No. 3 were denied and report of Inquiry Officer was relied upon by the employer before Labour Court. Labour Court found Departmental Inquiry conducted against respondent No. 3 to be fair and valid and it also found that conclusions drawn by Inquiry Officer were not perverse. It found that the charge of gross negligence was established against respondent No. 3 and in the absence of any past service record, punishment of dismissal was shockingly disproportionate. However it also found that theft occurred because of his negligence and hence respondent No. 3 was liable to be punished. Finding that he was out of employment for more than five years it invoked Section 11-A of Industrial Disputes Act and declined him backwages observing that it would be sufficient punishment. Hence, it ordered his reinstatement with continuity but without backwages.
3. Petitioner as also respondent No. 3 filed Revisions under Section 44 of MRTU and PULP Act before Industrial Court. Petitioner challenged the grant of reinstatement and prayed for the restoration of order of punishment of dismissal while respondent No. 3 challenged denial of backwages by Labour Court. Both the revisions have been decided by common order on 5-12-1994 by Industrial Court. It found that when the amount involved was huge, respondent No. 3 employee was clearly guilty of gross negligence in leaving the keys of Safe in drawer and also in leaving the amount in wooden cash boxes on counter. It found that respondent No. 3 could not take defence of negligence on part of security guards and punishment of dismissal is provided under Standing Orders for habitual neglect of work or gross habitual negligence. It upheld the order of Labour Court and dismissed both the revisions. This common order along with the judgment of Labour Court are impugned in present writ petition by employer.
4. I have heard Advocate A. P. Wachas under for petitioner and Advocate C. A. Joshi holding for Advocate Deshpande for respondent No. 3. Learned AGP represented respondent Nos. 1 and 2 Tribunals. As the matter is heard finally, Civil Application 2158 of i995 for grant of interim orders and Civil Application 2159/1995 for dismissal of writ petition mentioned above are rendered infructuous and are dismissed accordingly.
5. Learned Counsel for petitioner strenuously urged that the Standing Order 24(m) has not been properly read and considered by Industrial Court. He invites attention to finding recorded by Labour Court that there was gross negligence by respondent No. 3 and also to the similar finding reached by Industrial Court in paragraph 7 of its order. He argues that Industrial Court in paragraph 10 of its order has erroneously come to conclusion that gross negligence has also to be habitual. He states that this error in its approach has resulted in refusal on part of learned Member of Industrial Court to exercise jurisdiction available to it. He contends that the Labour Court has found that respondent No. 3 employee did not communicate any loopholes in security arrangement and failed to discharge his duties. It also found that punishment of dismissal is prescribed under Standing Orders for gross negligence and as such, according to him, the further application of mind in this respect by Labour Court is itself perverse. Once this is accepted, there cannot be any unfair labour practice by employer. According to him, Industrial Court as also Labour Court were right in ignoring security breach, if any because it was totally irrelevant while considering the performance of his duties by respondent No. 3. He vehemently urged that only performance of his duties by respondent No. 3 was limited area to be scrutinised by either Labour Court or by Industrial Court. The subsequent recovery of cash is fortuitous circumstance not relevant for weighing the misconduct and according to him, both the Courts have therefore erred in. exercise of jurisdiction available to them in the matter. He has taken the Court through relevant provisions of Standing Orders and also the facts on record to demonstrate how there is error apparent committed by both the Courts. According to him, the moment gross negligence was found the Courts ought to have dismissed the complaint filed by respondent No. 3. He further contends that in such circumstances employer cannot keep faith in employee and even on that account relief of reinstatement could not have been granted. He, in the alternative, states that in worst-case the Courts could have considered relief of awarding compensation to respondent No. 3.
6. Advocate Joshi for respondent No. 3 contended that there was no gross negligence and respondent No. 3 followed the practice which was being followed by earlier cashiers. He states that respondent No. 3 became cashier in 1984 and adopted the practice which was being followed by his predecessor Shri Mungi. He further contended that respondent No. 3 did not violate the said procedure and did not breach any direction issued by management in this respect as there were none. He argues that the room in which cash was placed was locked from outside and was sealed every day and it was the responsibility of security of petitioner to guard it. He states that there was no direction by employer to take the keys of Safe to his residence and as such, there was no misconduct on his part in this respect. The lapse was on part of security guards and the petitioner, though found them guilty, did not dismiss them. It is his argument that the key of Safe was property of petitioner and was kept in safety as provided by petitioner. There was no gross negligence on part of said respondent and punishment of denial of backwages was also unwarranted.
7. In this view of matter, it would be first appropriate to see the charges as levelled against respondent No. 3. In the first charge-sheet dated 13-1-1988 it is stated that he kept the cash withdrawn from Bank in wooden boxes and instead of keeping the same into the Safe, left them (cash boxes) on the counter in the cash office and next day it was discovered that the cash in above boxes was stolen by somebody. It is further alleged that he “left the keys of the Safe in wooden drawer adjacent to the Safe and for opening the Safe and steal the cash in the safe.” It is mentioned that therefore he failed to exercise due care and caution in keeping the Safe keys and thereby failed to observe instructions given from time to time. The charge-sheet further reads that he has shown sheer negligence and utmost irresponsibility and also disobeyed lawful instructions as responsible cashier and caused damage to property of Mills. This has been stated to be misconduct under Clause 24 (D-M-U) of Standing Orders. Additional charge sheet has been issued on 15th February, 1988 and in it it is stated that the amount deducted from salary of staff members and workers towards contribution to Prime Minister’s Drought Relief Fund (Rs. 39077) was not accounted by him and thus he breached instructions regarding taking of entries in cashbook with a dishonest intention. It was stated that on 2-12-1987 when Manager Vigilance from Bombay made surprise check, this amount was not found anywhere and thus he had carried away that amount with himself. This was stated to constitute misconduct under Clause 24(d)(p) of Standing Orders. During hearing Advocate A. P. Wachasunder for petitioner has produced copy of relevant Standing Orders and the relevant clauses therein are as under:
24. Any of the following sets or omissions on the part of the Clerk shall amount to misconduct:
(d) Theft, fraud or dishonesty in connection with the Employer’s business or property;
(m) Habitual neglect of work, or gross or habitual negligence;
(p) Habitual breach of any rules or instructions for the maintenance and running of any department or the maintenance of cleanliness of any portion of the establishment;
(u) Wilful damage to work in process or to any property of the establishment;
It is to be noted that “n Clause 24 sub-clauses begin with small letters of alphabet like (a) and not with capital letters like (A) or (D or M or U) etc.
Under Clause 25, the Clerk guilty of misconduct may be dismissed after complying with procedure as mentioned therein.
Clause 26 thereof reads:
26. The Clerk may be warned, severely warned or fined for any of the following acts or omissions
(c) Negligence in performing duties;
(d) Negligence in work and neglect of work;
(i) Breach of any rule or instructions for the maintenance or running of any department or maintenance of cleanliness of any portion of the premises of the establishment or compound of the establishment;
(j) Damage to work in process or any other property of the establishment;
(k) Tampering with any safety devices existing in establishment;
The inquiry report i.e. findings submitted by inquiry officer to petitioner reveal issues for his consideration framed by inquiry officer with answers to the same as under: (in his language)
1. Whether Shri D. B. Joshi has neglected his duties as cashier. Yes.
2. Whether Shri Joshi has committed dishonesty with property of
Mills No.
3. Whether he has disobeyed instructions of management by not making entry of amount of Rs. 39067/- collected Prime Minister’s Drought Relief Fund and not depositing the same Bank. No.
4. Whether he has misappropriated the amount collected for Prime Minister’s Drought Relief Funds. No.
Thus, Inquiry Officer has only found respondent No. 3 guilty of neglecting his duties as cashier. He therefore recorded that respondent No. 3 was not proved to be guilty of charges under Clause 24(d)(p)(u) but found him guilty of charge of negligence under 24(m).
Discussion by Inquiry Officer against issue No. 1 reveals that respondent No. 3 accepted that he kept the cash of Rs. 535600/- (Five lakhs Thirty five thousand and Six hundred) in wooden boxes out of Safe and he also kept the keys of Safe in wooden drawer adjacent to Safe as per practice. He has also relied upon statement of Shri Kale, a badli cashier for about ten years and Shri Jajodiya, cashier in sister concern that they carried the keys of Safe with them to their residence after duty hours. Inquiry Officer did not accept the practice pointed out by respondent No. 3 or evidence adduced by retired cashier Shri Mungi in support of such practice. The reason mentioned by him is that Shri Mungi contradicted himself. The contradiction pointed out is in relation to handing over of charge by him to respondent No. 3 or to Shri Kale on 30-6-1984. His statement that “it is safe to keep the key of Safe, wherein lakhs of Rupees are kept in wooden drawer but it is not safe to keep the cash in same wooden drawer” is found to be quite contradictory. His classification that he considered keeping of keys in wooden drawer safe because it was a practice has not been accepted by Inquiry Officer who remarked that it showed his (Shri Mungi’s) strange ideas about safety. Inquiry Officer has thereafter observed that it was common sense that keys of Safe should not be kept in cash room near the Safe and it required no written instructions from anybody. He observed that Shri Kale badli cashier was carrying key of Safe with himself to his house though he did not receive any Orders to that effect from management. He observed that even respondent No. 3 was carrying the keys of petty cash wooden drawer in which he kept the keys of Safe, wooden boxes and key of cash with himself to home. He did this without any written Orders or instructions of the management. Inquiry Officer further found that management never objected to the cashier taking keys of Safe with himself to his residence. He further found that respondent No. 3 admitted that theft would not have been possible if the key of the Safe was not kept in petty cash drawer and according to Inquiry Officer this cleared the whole matter. Inquiry Officer further found that respondent No. 3 was aware of architectural defects and he was considering the cash room not safe but in spite of this knowledge he continued with the so-called practice of keeping huge amount in wooden boxes out of Safe and did not even think of reconsidering said practice. His say that it was the responsibility of management has been interpreted to mean that he avoided responsibilities and duties of cashier. Inquiry Officer held that he never communicated the unsafe character of cash room to the management. Defence of respondent No. 3 based upon various circulars received from subsidiary office as well as holding company was not accepted by Inquiry Officer looking to the circumstances in which theft took place though he found that negligence of Watchman was not disputed. He preferred to rely upon say of Security Officer Shri B. K. Singh that theft would not have taken place if respondent No. 3 would not have kept key of Safe in drawer and cash in wooden boxes and that Safe provided by management was so strong that it was impossible to open it without key. Inquiry Officer observed that various circulars regarding safety of cash were guidelines for additional safety. He observed that it was implied and bounden duty of respondent No. 3 to keep cash safely in available safe custody and to take away the key of Safe along with him and not give access to any bad event like theft. Very purpose of Safe provided by management stood defeated by keeping the key of Safe in wooden drawer adjacent to Safe and by keeping huge amount of Rs. 535600/- out of Safe in wooden boxes when cash room was not safe. He further found that benefit of so-called practice which inspired the culprit to steal the cash of Rs. 5.92 lakhs cannot be given to respondent No. 3. He therefore concluded by holding that respondent No. 3 has shown gross and sheer negligence while performing the duties of cashier. The discussion above done by Inquiry Officer reveals that there were no guidelines or instructions issued by petitioner for cashiers about the custody of keys of Safe or wooden cash boxes after duty hours. Different persons have followed different procedure in this respect. Shri Kale and Shri Mungi followed different practice. No definite finding about practice followed by Shri Mungi is arrived at by Inquiry Officer. The circulars on the subject are not commented upon by him.
8. The state of affairs emerging therefore leaves no manner of doubt that no uniform procedure in this respect was being followed by any cashier and the procedure devised was as per his own wisdom. It is also apparent that petitioner management itself was not careful in this respect and it itself was not aware of procedure being followed by cashier. It appears that cash room itself used to be locked and that lock used to be sealed in presence of security personnel. Respondent No. 3 used to carry key of that lock and key of wooden drawer in which key of Safe was placed with himself to his residence. Shri Mungi followed the same practice and Shri Kale used to carry additionally key of Safe also to his residence. On 10-1-1988 when Shri Agarwal came to open the cash room, there was no tampering with outer seal on lock of cash room or said lock itself. The theft was discovered only after he entered the cash room. The hinges of wooden cash boxes were removed/broken and locks upon it were not opened with the keys. It appears that internal partition separating cash room from sales room was broken by thief for committing theft. However, question is whether in the absence of any specific directions to cashier or the section about custody of keys of Safe, the conduct of respondent No. 3 in leaving the keys of Safe in wooden drawer or in leaving the cash in wooden cash boxes on cash counter can be visited with punishment of dismissal. Though in written statement file before Labour Court petitioner denied circulars on the issue, Inquiry Officer mentions 4 circulars in his report (as Exhibits 17, 20, 21 and 30 in D. E. proceedings). However, these circulars are not discussed by him in his report. Two circulars are produced by respondent No. 3 with his return before this Court. As per circular dated 25-1-1985 issued by National Textile Corporation there has to be a standard quality Cash Safe with double lock and key operations system and the keys are to be operated by two separate officers and both keys should not be in possession of one Officer. The Cash Safe is to be placed in strong room which should be well built with double lock and key system. Even these keys are to be operated by two persons independently. It is apparent that this circular issued by Chief Financial Adviser and Chief Accounts Officer. N. T. C. has not been followed by petitioner. Director (Finance), N.T.C. (Maharashtra North) has issued another communication on 3rd July, 1987 to petitioner with special reference to its Officer Incharge of Accounts. In it grievance is made that Mills have not been managing cash and ensuring safety of cash as per guidelines issued by Corporate Office from time to time and it is reiterated that said guidelines are to be complied with in toto and Officer In charge of Accounts is personally responsible for such compliance. In spite of this, petitioner did not take any steps to ensure safety of cash in the manner as envisaged at least in circular dated 25-1-1985. The above letter from Director mentions circulars dated 2-1-1985 and 21-3-1984 in particular. Both the circulars are not produced before this Court and are not considered by Inquiry Officer or by any of the Courts below. The written instructions of which violation is alleged in charge-sheets served upon respondent No. 3 are not in this respect. It is thus clear that petitioner itself was not aware of the practice being followed by its cashiers. Officer In charge of Accounts working under petitioner or the General Manager of petitioner have never taken any pains to streamline the working of cashiers and were in fact not aware of the mode and manner in which they conducted the affairs of cash section. Management did not produce any written Instructions issued by it in this respect before Inquiry Officer and solely relied upon working pattern deposed by Shri Kale. Its Officer In Charge of Accounts or any other superior Officer did not even depose before Inquiry Officer. In such circumstances can the cashier who earlier worked as a Clerk be held responsible for this state of affairs to meet out punishment of dismissal. It is no doubt true that normally keys of Safe ought not to have been placed in the strong room in drawer. However when petitioner could have controlled this and failed to exercise that power, can it be said that respondent No. 3 should be punished with dismissal for following the practice which was being followed by his predecessor earlier. The Labour Court has found that it was primary duty of respondent No. 3 to protect the cash and no written instructions were required for that purpose. It found that he did not take any steps to bring the condition of cash room to the knowledge of higher authorities. In paragraph 15 of judgment it observes that “It appears that complainant was held responsible for the gross negligence and the respondent has rightly pointed out that gross negligence amounts to greater negligence and therefore the negligence of complainant certainly falls within the meaning of gross negligence and hence the punishment of dismissal is certainly according to the Standing Orders.” However, except for above line there is no other discussion to show that Labour Court held the negligence of respondent No. 3 to be gross negligence. In paragraph 16 of its judgment, it finds that stolen cash was recovered from another employee and respondent No. 3 was not connected with it and hence under such circumstances for the misconduct of negligence and that to in absence of past service record, the punishment of dismissal is shockingly disproportionate. The learned member of Industrial Court, in paragraph 7 of its order found that respondent No. 3 could not justify his defence merely by following such a risky practice of leaving the keys of Safe in the drawer and also leaving the said amount in wooden boxes on the counter. It thereafter found that Standing Orders prescribed punishment of dismissal for habitual neglect of work or gross habitual negligence. It has considered application of mind by Labour Court and approved it and therefore upheld the judgment of Labour Court.
9. In i.e. Asharfi Lal v. Smt. Koiti (dead) by L.Rs. Hon Apex Court has held that gross negligence means culpable negligence. In , Municipal Corporation of Greater Bombay v. Shri Laxman Iyer and Anr. Hon Apex Court has stated what negligence means in paragraph 6:
6. The plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in common parlance ‘negligence’ is categorized as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of a care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligate or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act.
Gujarat High Court in the case of Navinchandra Shakerchand Shah v. Ahmedabad Co-operative Department Stores Ltd. reported in 1979(1) LLJ High Court, Guj. 60 held that every incident or every error could not be styled as negligence and, therefore, a mere lapse on the part of the respondent could not be considered as gross negligence, hi the said decision provision similar to present one i.e. Standing Order 22(m) of the Model Standing Orders which provides for misconduct of “habitual neglect of work, or gross or habitual negligence” has been considered. The learned Judges in that case were of the view that the misconduct which was alleged against the workman was not established to have become habitual which could lead to dismissal. In fact they have observed that where there is a duty to take care or to exercise certain skill, failure to take care or exercise skill may indicate negligence.
In 1994(1) USOFT 352 : 1995(2) Mh.L..J. 154 between Babanrao Budhajirao Nanekar v. Adinath Sahakari Bank Ltd. and Ors. this Court while pointing out difference between dishonesty and gross negligence held “Dishonesty necessarily requires advertence of mind and an intention to cause wrongful loss to the employer and wrongful gain to the employee himself or to someone else. In stark contrast, gross negligence can arise only when there is utter lack of advertence to the bare requisites of precaution to be observed while discharging duty. In my view, the two heads of misconduct are not only antithetical, but are also mutually exclusive. If one is guilty of dishonesty in a transaction, it cannot be postulated that one is also grossly negligent in the said transaction.
10. Discussion above shows that the practice followed by respondent No. 3 could have continued without any objection had there been no theft and petitioners/Management had never objected to it. It is to be noted that vital guidelines and directions issued by N.T.C. were not obeyed by petitioner. On 2-12-1987 when Manager (Vigilance) from Bombay made surprise check no objection in this respect was raised. It is obvious that this procedure was not even thought of worth giving attention. Petitioner was happy with strong room provided by it and it did not bother to monitor the use thereof by cashier and safety measures to be taken when huge cash was brought in for effecting salary payment to workmen and staff. It is admitted position that the strong room, used to be locked and sealed in presence of security and responsibility to safeguard it thereafter was of Mills’ security. The management itself did not contemplate any breach in such security or entry of any unwanted element in cash room for committing theft. Respondent No. 3 merely continued to follow the practice without realising the danger in keeping the keys of Safe in same room where Safe itself was placed. He perhaps felt a sense of security in it because of Security Guards/watchmen guarding the room. Though he was not satisfied about the condition of strong room itself, he was only a cashier and his employer had provided security to that room. He kept key of Safe in locked drawer in said strong room/cash room and carried key of said drawer with him with key of lock (with seal) put on said room. In such circumstances, though he may be found to be negligent in blindly following the practice, passive role of his superior officer and petitioner in the process cannot be overlooked. Even if it is presumed to be a gross negligence, I find that it does not warrant punishment of dismissal. I, therefore find that no case is made out for interference in the order passed by Industrial Court or the judgment delivered by Labour Court Though Industrial Court has read word “habitual” before word “gross negligence”, that by itself is not sufficient to upset its order. Even though both the Lower Courts have considered subsequent events of recovery of stolen cash for making allowance in relation to misconduct, it cannot be lost sight of that respondent No. 3 was never charge-sheeted as privi to theft in any manner. His performance has not been doubted in the past and his record is clean. Hence, the discretion exercised by both the Courts in this respect needs to be upheld.
11. Petitioner has relied upon judgment of Hon Apex Court in case between State of Punjab v. Ram Singh, Ex. Constable reported at . The Constable Gunman in this case after having heavy drink, was seen roaming in the market with service revolver, while he was on duty. When he was sent to the doctor for medical examination he abused the medical officer on duty which shows his depravity or delinquency due to his drinking habit. Hon Apex Court held that the conduct of constable would constitute gravest misconduct warranting dismissal from service and the authorities, therefore, were found to be justified in imposing the penalty of dismissal. This case does not consider misconduct of negligence that too in present background but it considers a positive act of commission by employee with responsibility in a force known for its discipline. Respondent No. 3 here had no past service record and he merely continued with the practice followed earlier by his predecessors. i.e. Workmen of Bharat Fritz Werner (P) Ltd. v. Bharat Fritz Werner (P) Ltd. 1990(1) LLN 481 has been relied upon to state that present case was not fit for granting relief of reinstatement and any other relief like compensation could have been considered by both the Courts below. It is argued that petitioners cannot keep faith in employee like respondent No. 3. Following observations are important:
18. Ever since the decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay the settled position in law is that the industrial tribunal has the jurisdiction to direct reinstatement in appropriate cases. In a case of wrongful dismissal the normal rule adopted in industrial adjudication is to order reinstatement. There are, however, exceptions to this rule and even when it is found that the dismissal was wrongful the workman has been denied reinstatement for the reason that it would not be expedient to direct reinstatement.
19. In the Punjab National Bank Ltd. v. Its Workmen this Court has approved the following observations of the Full Bench of the Labour Appellate Tribunal in Buckingham and Carnatic Mills Ltd. v. Their Workmen (1951)2 LabLJ 314:
But in so ordering the tribunal is expected to be inspired by a sense of fair play towards the employee on the one hand and considerations of discipline in the concern on the other. The past record of the employee, the nature of his alleged present lapse and the ground on which the order of the management is set aside are also relevant factors for consideration.
20. In that case this Court has laid down (at p. 173 of AIR):
It is obvious that no hard and fast rule can be laid down in dealing with this problem. Each case must be considered on its own merits, and, in reaching final decision an attempt must be made to reconcile the conflicting claims made by the employee and the employer. The employee is entitled to security of service and should be protected against wrongful dismissals, and so the normal rule would be reinstatement in such cases. Nevertheless in unusual or exceptional cases the tribunal may have to consider whether, in the interest of the industry itself, it would be desirable or expedient not to direct reinstatement. As in many other matters arising before the Industrial Courts for their decision this question also has to be decided after balancing the relevant factors and without adopting any legalistic or doctrinaire approach.
21. Reinstatement has not been considered as either desirable or expedient in certain cases where there had been strained relations between the employer and the employee, when the post held by the aggrieved employee had been one of trust and confidence, or when, though dismissal or discharge was unsustainable owing to some infirmity in the impugned order, the employee was found to have been guilty of an activity subversive or prejudicial to the interests of the industry, Hindustan Steel Ltd. v. A.K. Roy . In cases where it is felt that it will not be desirable or expedient to direct reinstatement the workman is compensated monetarily by awarding compensation in lieu of reinstatement for loss of future employment.
Hon’ble Apex Court thought it fit not to grant relief of reinstatement in facts before it which are apparent from following observations:
22. The misconduct that has been found established against these five workmen, involves threatening the highest executive, viz. the President of Company, with dire consequences, wrongfully confining him in his room and compelling him to withdraw the notice. These acts of misconduct involve acts subversive of discipline on the part of these workmen. Three of these workmen were office bearers of the Union. It cannot be said that these workmen had acted at the instigation of somebody. Taking into consideration the facts and the circumstances of the case, we are of the opinion that, keeping in view the interests of the industry, this is a case where it can be said that it is not desirable and expedient to direct reinstatement of these workmen. In our view, therefore, the direction with regard to reinstatement of these workmen cannot be sustained and in lieu of reinstatement they may be paid compensation for loss of future employment.
It is thus clear that case of respondent No. 3 stands on entirely different footing and this logic cannot be extended to deny him relief of reinstatement. Even the argument that petitioner has lost confidence in said respondent cannot be accepted.
Learned Counsel for the petitioner has also relied upon the judgment of Division Bench of this Court reported at between Uttam Nakate v. Bharat Forge Co. Ltd. There employee working as a helper was found lying fast asleep at work and act of sleeping during duty hours on the premises of the factory or establishment was held to be misconduct, as contemplated under Standing Order 24(1) and covered by the expression “any act subversive of discipline on the premises or the establishment. He had put in 10 years service and previous misconducts were not serious. Looking to the nature of the charge and past record the misconduct the punishment of dismissal was found to be shockingly and grossly disproportionate and a case is a legal victimisation covered under Clause (a) of Item 1 of Schedule IV. The Division Bench thereafter in paragraph 14 observed:
14. Having held that the punishment of dismissal inflicted upon the employee for the proved misconduct is shockingly and grossly disproportionate and that the employer, by doing so, had engaged himself in an unfair labour practice under Clause (a) of Item 1 of Schedule IV of the MRTP and PULP Act, obviously, the reinstatement would be the normal rule and we, at the first blush thought of restoring the order of the Labour Court whereby the Labour Court ordered reinstatement of the employee and payment of 50 percent of backwages from the date of dismissal till his reinstatement. But on a deeper thought, particularly in view of the fact that for more than 15 years the employee is out of job and hardly 5-6 years service is left, we thought that this would not be a fit case for granting reinstatement at this stage. The employee was working as helper with the employer and taking overall facts into consideration of the case, direction to the employer to pay a lump sum of Rs. 2,50,000-00 shall meet the ends of justice.
Thus the relief of reinstatement has been declined and compensation awarded looking to the exceptional circumstances pointed out above. The facts at hand are not warranting similar treatment and respondent No. 3 cannot be denied relief of reinstatement.
Baban R. Dhotre v. Pefco Foundry reported at is also relied upon by petitioner for same purposes. In this case, the Labour Court had actually granted workmen relief of reinstatement with 50 percent backwages. The learned Single Judge of this Court set aside that order and in LPA, Division Bench observed that learned Single Judge should not have interfered with the findings of fact recorded by Labour Court. It found that Labour Court was right in holding that punishment of dismissal was too harsh and totally disproportionate to the charges levelled against said workman. But Division Bench found that having regard to past record of workman and the fact that he secured other employment and he was terminated long back, relief of reinstatement after lapse of nearly 16 years was not warranted. It therefore awarded him compensation in lieu of reinstatement. Again, the view taken is in the facts of said case.
Here respondent No. 3 has been given relief of reinstatement without backwages in 1993 when he was about 43 years old. Industrial Court upheld said relief in 1994. This Court has not granted any interim relief to the petitioner. The Labour Court as also Industrial Court found punishment to be disproportionate and there is no past service record. No case for expressing any loss of confidence in him is made out and hence no exception can be taken to relief of reinstatement without backwages granted in his favour. Denial of backwages of about five years is more than sufficient to teach him a lesson. Hence, I’m not inclined to accept the argument that respondent No. 3 should be awarded compensation in lieu of reinstatement.
12. No case is therefore made out for interference in writ jurisdiction. Writ petition accordingly fails and is dismissed. Pending Civil Application 2158 of 1995 for grant of interim orders and Civil Application 2159/1995 for dismissal of writ petition are also dismissed as infructuous. No costs.