The Tata Power Company Ltd vs S. M. Harke & Ors on 9 November, 2009

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   ORDINARY ORIGINAL CIVIL JURISDICTION

                        WRIT PETITION NO.1996 OF 2009




                                                                                  
The TATA Power Company Ltd.                                    ..Petitioners




                                                          
      Vs.
S. M. Harke  & Ors                                             ..Respondents

                                    AND




                                                         
                        WRIT PETITION NO.1997 OF 2009

The TATA Power Company Ltd.                                    ..Petitioners
     Vs.




                                             
Kishor Salvi  & Ors                                            ..Respondents
                                ig  AND
                        WRIT PETITION NO.1998 OF 2009
                              
The TATA Power Company Ltd.                                    ..Petitioners
      Vs.
A. N. Bhoir  & Ors                                             ..Respondents
                                    AND
            

                        WRIT PETITION NO.1999 OF 2009
         



The TATA Power Company Ltd.                                    ..Petitioners
      Vs.
S. R. Gharat  & Ors                                            ..Respondents





Mr. K. M. Naik with Mr. S. P. Salkar for the Petitioner

Ms. Rita K. Joshi for the Respondents

                                     CORAM: DR. D.Y. CHANDRACHUD, J. 

DATE: 9th November , 2009

Oral Judgment :

1. This batch of Writ Petitions before the Court raises a similar issue and

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has been heard together. Counsel state that the facts relating to all the

cases are similar. Rule, With the consent of the Counsel, the Petitions are

taken up for final hearing. Learned Counsel for the Respondents waives

service.

2. The Respondent workmen were employed as Senior Security Guards in

the Security Department at the Trombay Thermal Power Station. The

Petitioner supplies electric power to vital installations in the City of

Mumbai including the Railways, Air Force, Hospitals, BARC, Oil

Refineries and Defence establishments. All the workmen were on duty

on 31st December 1999 in the general shift from 0730 hrs to 1630 hrs.

At about 1315 hrs., the workmen were found to have consumed liquor

alongwith three other workmen in the Security Guards’ locker Room

near the main gate of the Power House at the Trombay Thermal Power

Station. The case of the management is that the workmen were caught

red handed by Mr. P.B. Palekar (DGM) and Mr. D.G.Mehra (VP), while

consuming beer together with three other employees. The workmen

were suspended. A departmental inquiry was conducted on allegations

of misconduct, contained in a charge sheet dated 6th January 2000. All

the employees, it has been conceded before the Court by Counsel for the

workmen, admitted the charge of misconduct. The inquiry officer

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submitted his report on 8th February 2000, holding the workmen guilty

of misconduct. The workman in Writ Petition No.1997 of 1999 was on

privilege leave from 21st December 1999 to 31st December 1999 and on

the date of the incident had entered the premises, when he was found to

be consuming liquor. Upon the conclusion of the inquiry and in

pursuance of the opportunity granted to them, the workmen submitted

their explanations. A second show cause notice was issued by the

Management calling upon the workmen to explain as to why they

should not be dismissed from service. The Workmen came to be

dismissed from service on 20th May 2000. The Workmen filed

application under Sections 78 and 79 of Bombay Industrial Relations Act

1946 before the Labour Court.

3. The Labour Court by its Part I Award dated 23rd June 2006 held that the

inquiry was fair and proper. However, by its Part II Award dated 30th

April 2008, the Labour Court allowed the Application by granting

reinstatement with 25% back wages. Cross Appeals were filed by the

Management and by the Workmen. The Industrial Court allowed the

Appeal filed by the employer in part by setting aside the direction for

the payment of back wages. The order of reinstatement was confirmed.

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4. Counsel appearing on behalf of the Petitioners has urged that, the

misconduct which is allegedly to have been committed by the workmen

is of a grave and serious nature. The workmen were found to have

consumed liquor in the premises of the establishment and the

misconduct was duly found to be established, under clause 32(10) of

the Standing Order. It was urged that, both the Labour Court and

Industrial Court manifestly exceeded jurisdiction in holding that the

action of the management was discriminatory. All the four workmen,

who are the subject matter of these proceedings were employed as

Senior Security Guards. The three other employees, who were also

found to have consumed liquor in the premises, comprised of one Driver

and two operators. The representative Union under the Bombay

Industrial Relations Act 1946, had espoused the case of those three

workmen and a settlement was arrived at with the representative union

on 16th February 2001, by which, the three other workmen were

suspended by way of punishment for four days. However, the

management was justified in taking a strict view in regard to the

conduct of the four workmen in question, since they were security

guards entrusted with duties of maintaining vigil over a sensitive

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installation. It was urged that, the security guards fall into a distinct

class and the Management had not acted discriminatorily.

5. On the other hand, it was urged on behalf of the Respondent workmen

that consumption of alcohol in the premises of the establishment would

amount to a misconduct by whichever employee it is committed and

that there was no justification for the management to distinguish

between security guards on the one hand and the driver and the

operators on the other hand. Counsel submitted that, the action of the

management was discriminatory. The workmen have suffered for over

nine years and, it was urged, the grant of reinstatement with back

wages would be in the interests of justice.

6. In considering the merits of the rival submissions, it must be noted, at

the outset, that it is an admitted position before the Court that all the

workmen in question had admitted to having consumed liquor in the

premises of the establishment. Three of the workmen were actually on

duty, while one of them ( the workman in Writ Petition No.1997 of

1999) was on privilege leave, but had come to the premises on the date

of the incident. All the workmen were senior security guards and the

charge of the misconduct which is found to be established is that, they

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had consumed liquor at the work place.

7. The Labour Court interfered with the punishment which was awarded

by the Petitioner with the following observations

“the so-called alleged incident has taken place on 31.12.99. This is

the last day of the year. Seven persons were found eating food in

the security guard room. They might have taken beer at the time

of eating or they might have taken some alcohol at the time of

eating the food. There is no evidence on record to show that all

the persons were found misbehaving under the influence of

alcohol. There were simply eating the food after taking alcohol or

beer. In my view this not a serious offence.”

8. The Industrial Court in the Appeal filed by the Workmen and by the

employer held thus:

“The concerned employees were found consuming beer in the

security guards locker room near main gate of the power house.

The charge sheet refers to liquor but undisputedly what as been

consumed was a beer. Out of four employees one was not on duty.

The concerned employees had consumed beer but there is no

allegation that they were under the influence of the liquor or beer.

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No other act or misdeed has been attributed to the concerned

employees. The concerned employees were permanent workers

who had served for years. They might have been punished earlier

on few occasions but those were minor punishments for some

lapses. Undisputedly, there was no major misconduct committed in

the past. It is true that security guard is not expected to drink and

work. In this case beer was drunk not only by the concerned

employees but by four others also. Those others included a driver.

The company has continued the driver in service inspite of the

allegations of drinking beer while on duty. For company such a

driver is acceptable but not the security guards. The driver and

two others are continuing in service and the concerned employees

are out of employment till the year 2000. In my view a driver and

the security guards deserved to be treated the same way while

considering their case for continuation in service.”

9. There is merit in the submission which has been urged on behalf of the

Petitioner, that the reasons which have weighed with both the Courts

below suffer from a clear perversity. The Labour Court seems to suggest

that the consumption of liquor at the work place should be overlooked

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since this was the last day of the year and the workmen, though they

might have consumed Alcohol ” at the time of eating food” were not

found to be misbehaving. Consumption of alcohol at the work place by

the security guards in the present case was a serious act of misconduct

and the management was justified in taking a strict view of the matter.

The representative Union espoused the cause of three of the seven

workmen who were found to have consumed alcohol on the date of the

incident and who were not security guards. The three other workmen

consisted of one driver and two operators. If the representative Union

and the management arrived at a settlement by which, the three other

workmen were given punishment of suspension for four days that would

by itself not entitle the Respondent workmen to the benefit of the same

treatment. The Respondent workmen were senior security guards who

were entrusted with the duty of protecting the installation and

maintaining vigil. The installation of the Trombay Thermal Power

Station is a vital installation in the city of Mumbai. The course of events

in the recent history of city require no elaborate line of reasoning for the

court to hold that the employer is justified in taking a serious view of a

dereliction of duty by employees engaged to guard the establishment.

The Industrial Court noted that the past record was not free from

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blemish. The management has not acted discriminatorily in treating the

dereliction of duty by the security guards strictly. Those employees

constituted a distinct class since they were specifically entrusted with

the duty of guarding the establishment.

10. In these circumstances, both the courts were manifestly in error in

finding fault with the management for having taken a serious view of

the conduct of the Respondent workmen and in dismissing them from

service. Having regard to the nature of the misconduct, the admission of

guilt and the past conduct, the imposition of the penalty of dismissal

ought not to have been interfered by the Labour Court and by the

Industrial Court. The grant of reinstatement was clearly not warranted.

11. In these circumstances, the petition would have to be allowed and is

accordingly allowed. Rule is made absolute in terms of prayer clause (a)

by setting aside the Judgment of the Industrial Court dated 7th August

2009.

12. The Application filed by the Respondent workmen accordingly stands

dismissed.

13. No order as to costs.

(Dr. D.Y.Chandrachud, J)

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