{"id":213940,"date":"2009-03-12T00:00:00","date_gmt":"2009-03-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-daman-chetandas-meghani-vs-ms-moulds-dies-pvt-ltd-on-12-march-2009"},"modified":"2017-07-04T12:29:24","modified_gmt":"2017-07-04T06:59:24","slug":"mr-daman-chetandas-meghani-vs-ms-moulds-dies-pvt-ltd-on-12-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-daman-chetandas-meghani-vs-ms-moulds-dies-pvt-ltd-on-12-march-2009","title":{"rendered":"Mr.Daman Chetandas Meghani vs M\/S.Moulds & Dies Pvt.Ltd on 12 March, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mr.Daman Chetandas Meghani vs M\/S.Moulds & Dies Pvt.Ltd on 12 March, 2009<\/div>\n
Bench: A.M. Khanwilkar<\/div>\n
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n              ORDINARY ORIGINAL CIVIL JURISDICTION\n\n                    WRIT PETITION NO.2674 OF 2005\n\n\n\n\n                                                                      \n     Mr.Daman Chetandas Meghani,\n     Flat No.A-201, Building No.2,\n\n\n\n\n                                              \n     \"Shub Labh\", Near Mahavir Nursing\n     Home, M.B.Estate Road,\n     Virar (West), Dist.Thane-401 303.              ...Petitioner\n\n             V\/s.\n\n\n\n\n                                             \n     M\/s.Moulds & Dies Pvt.Ltd.,\n     Sunder Baug Estate,\n     L.B.Shastri Marg,\n     Kurla, Mumbai-400 070                          ...Respondents\n\n\n\n\n                                  \n                                  ......\n\n     Mr.S.C.Naidu\n     Petitioner.\n                     ig  i\/b     M\/s.C.R.Naidu        &      Co.          for\n\n\n     Mr.V.P.Vaidya for Respondents.\n                   \n                                  ......\n\n                                 CORAM:    A.M.KHANWILKAR, J.\n      \n\n\n                                           MARCH 12, 2009.\n   \n\n\n\n     JUDGMENT :\n<\/pre>\n
     1.         This     Writ    Petition under Article 226                of<\/p>\n
     the    Constitution of India is directed against                     the<\/p>\n
     Judgment    and Award passed by the Presiding Officer<\/p>\n
     11th    Labour Court, Mumbai dated 30th November 2004<\/p>\n
     in    Reference     (IDA)    No.238\/1999.        The      terms       of<\/p>\n
     reference      is   articulated      in the    Schedule          which<\/p>\n
     reads thus:\n<\/p>\n
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                                    :    2    :\n<\/p>\n
                “Shri Daman Chetandas Meghani should be
\n                reinstated   with full    back wages and
\n                continuity of service w.e.f. 21\/5\/1994.”\n<\/p>\n
     2.         The    background        in which reference                 under<\/p>\n
     Section    39    r\/w    Section 10(1) and              12(5)        of     the<\/p>\n
     Industrial      Disputes      Act, 1947 came to be made                     by<\/p>\n
     the   appropriate        Government         of      Maharashtra             in<\/p>\n
     respect    of    the industrial dispute, is                   that,        the<\/p>\n
     Petitioner,      who    was    working        as     turner         in     the<\/p>\n
     factory    establishment          of    Respondent           Company        at<\/p>\n
     Kurla,    was    dismissed        on    the     ground        of     proved<\/p>\n
     misconduct.\n<\/p>\n
                       The    said      action was          taken        in     the\n\n     context    of    the    report submitted by                one      of     the\n                    \n     Director     of    the     Respondent           Company         Mr.Nikhil\n\n     Pasricha    dated      18th December 1993.               By     the      said\n\n<\/pre>\n
     communication addressed to the Managing Director of<\/p>\n
     the Respondent Company, the said Director placed on<\/p>\n
     record     his    experience           about      the        humiliating<\/p>\n
     behaviour    of the Petitioner on 17th December                          1993<\/p>\n
     in the following words:\n<\/p>\n
                “Dear Sir,<\/p>\n
                Sub : Complaint of mis-behaviour with me<\/p>\n
                      against Mr.Dhaman Meghani.\n<\/p><\/blockquote>\n
                With reference to above I wish to inform
\n                you that on 1’7.12.1993 at about 5.00 P.M.\n<\/p><\/blockquote>\n
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                     :   3   :\n<\/p><\/blockquote>\n
       when I was in the workshop, I noticed that
\n       Mr.Dhaman Meghani, Lathe     Operator was
\n       standing idle and doing no work.       His
\n       Machine was also stopped.\n<\/p>\n
       I enquired from Mr.Dhaman Meghani as to
\n       why he was not working on the Machine, in
\n       reply he told me in a very rude and<\/p>\n
       indisciplined manner that I have no tool
\n       to operate my Machine.\n<\/p>\n
       I told him that the tool was provided to
\n       him on 11.12.1993 and there after you<\/p>\n
       remained absent for 2 days eg;    13th &
\n       14th December, 1993 and what happened to
\n       that tool to which he replied that the
\n       tool was broken and he had informed the
\n       Supervisor,   where    as in   fact   the<\/p>\n
       Supervisor himself is not reporting for
\n       work since 12.12.1993.\n<\/p>\n
       When he was talking to me in a rude and
\n       indisciplined manner I told him to talk to
\n       me properly and behave in a disciplined
\n       manner.\n<\/p>\n
       I cautioned him for mis behaviour and
\n       language used towards me as he was all
\n       along addressing me as “TU” and further
\n       said “what can you do to me”.\n<\/p>\n
       When I told him to keep quiet and mind his
\n       work   he picked up an Iron Rod        and<\/p>\n
       threatened to assault me and       started
\n       hurling filthy abuses at me.\n<\/p>\n
       The above incident was witnessed by other
\n       workmen in the workshop.\n<\/p>\n
       I being Director in the Company take
\n       serious note of such humiliating behaviour
\n       of Shri.Dhaman Meghani towards me and
\n       request you to take suitable action in
\n       this matter.\n<\/p>\n
       Thanking You,<\/p>\n
       Yours faithfully,<\/p>\n
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\n                              :   4   :\n<\/p>\n
                     Sd\/-\n<\/p>\n
               (NIKHIL PASRICHA)
\n                   DIRECTOR”\n<\/p>\n
     3.        On   the basis of said report, charge-sheet<\/p>\n
     was   prepared   and served on the      Petitioner           dated<\/p>\n
     21st December 1993 which reads as follows :\n<\/p>\n
               “This is to inform you that a complaint<\/p>\n
               has been received by me from Shri.Nikhil
\n               Pasricha, a Director of the Company that
\n               on 17.12.1993 you behaved in a rude and<\/p>\n
               insubordinate    manner     towards   by
\n               threatening to assault and also hurling
\n               filthy abuses at him.\n<\/p><\/blockquote>\n
               A copy of the complaint is attached                    for
\n               your information.\n<\/p><\/blockquote>\n
               Even earlier you have behaved in similar
\n               manner towards even the Managing Director,
\n               that   is myself.      However since   you<\/p>\n
               tendered your apology, no serious action
\n               was taken against you.\n<\/p><\/blockquote>\n
               It seems, inspite the apology earlier
\n               given, you have not improved your conduct
\n               and behaviour towards your Superiors.\n<\/p><\/blockquote>\n
               We also find that you are very irregular
\n               in your attendance    and remain absent
\n               without prior permission. The details of
\n               your Absentism during the period from
\n               1.1.1993  to 20.12.1993     is  enclosed
\n               herewith.\n<\/p><\/blockquote>\n
               Your production record also is much below
\n               the normal production    given by other
\n               Machine Operators.\n<\/p><\/blockquote>\n
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                                :   5   :\n<\/p><\/blockquote>\n
               You   are therefore     charged            with         the
\n               following misconducts:-\n<\/p><\/blockquote>\n
               1.     Wilful       insubordination     and\n\n\n\n\n                                                                   \n               indisciplined      behaviour        towards\n<\/pre>\n
               Shri.Nikhil Pasricha, the Director of the
\n               Company on 17.12.93 at about 5. P.M. on<\/p>\n
               the floor of the workshop.\n<\/p><\/blockquote>\n
               2. For riotous behaviour when you pick up
\n               an iron rod threatening to assault, the
\n               Director Shri.Nikhil Pasricha during the<\/p>\n
               incidence on 17.12.1993 at about 5. P.M.
\n               in the workshop.\n<\/p><\/blockquote>\n
               3.    For remaining absent of work without
\n               permission of 10, 13 & 14 of December,<\/p>\n
               1993.\n<\/p><\/blockquote>\n
               4.   For wilfully giving less production<\/p>\n
               compared to other Machine men on your own
\n               Machine.   The Management takes a serious
\n               view of your above acts of misconduct and
\n               you are called upon to explain as to why<\/p>\n
               disciplinary action should not be taken
\n               against you.\n<\/p><\/blockquote>\n
               Your explanation        should   be          submitted
\n               within 48 hrs.          on   receipt         of   this
\n               chargesheet.\n<\/p><\/blockquote>\n
               Further action in this matter will be<\/p>\n
               considered on receipt of your explanation.\n<\/p><\/blockquote>\n
               In   view of the     seriousness of   the
\n               misconducts levelled against you, you are
\n               suspended from work, pending Managements<\/p>\n
               final decision in this matter.”\n<\/p><\/blockquote>\n
     4.        It    is the Respondent’s case that when the<\/p>\n
     said charge-sheet was attempted to be served on the<\/p>\n
     Petitioner     on   22nd December 1993, he          refused        to<\/p>\n
     accept   the    same   and created scene        which       became<\/p>\n
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\n                                  :   6    :\n<\/p>\n
     independent     cause    for        proceeding        against         the<\/p>\n
     Petitioner     on     the        ground        of       misconduct.\n<\/p>\n
     Accordingly,    second      charge-sheet was prepared                  on<\/p>\n
     27th   December     1993, which was later on served                    on<\/p>\n
     the Petitioner.      The same reads as follows:\n<\/p>\n
                             “IInd Charge Sheet<\/p>\n
               It is further reported to the undersigned
\n               that on 22.12.93 at about 3.15 p.m. when<\/p>\n
               you were served with the chargesheet dtd.
\n               21.12.1993 by the Supervisor Shri.Ramesh
\n               Chuttani, you refused to accept the same
\n               and threw it on the Table.\n<\/p><\/blockquote>\n
               You also started shouting filthy abuses
\n               against the Directors threatening with
\n               physical assault etc.<\/p>\n
               On hearing the commotion created by you,<\/p>\n
               the undersigned came to the office and
\n               asked to keep quiet and accept the charge<\/p>\n
               sheet and submit your explanation, but
\n               instead of listening to the undersigned
\n               you   also    started    threatening   the
\n               undersigned saying that you will set us
\n               both (i.e.:    undersigned   and   another<\/p>\n
               Director Mr.Nikhil Pasricha) for issuing
\n               the charge sheet.\n<\/p><\/blockquote>\n
               The charge sheet however was subsequently
\n               accepted by you but     you refused    to
\n               acknowledge the receipt of the same which<\/p>\n
               also you subsequently signed by you on
\n               22.12.1993 but delivered in the office on
\n               24.12.1993.\n<\/p><\/blockquote>\n
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                     :   7   :\n<\/p><\/blockquote>\n
       Again on 22nd Dec.1993 at about 3.25 p.m.
\n       when you came to collect the advance in
\n       the office on the 1st Floor (above the
\n       Factory Floor) you, on seeing Shri.Nikhil
\n       Pasricha who was sitting in his cabin<\/p>\n
       unprovokedly   started   shouting    filthy
\n       abuses   at Shri.Nikhil    Pasricha,    the
\n       Director of the Company and the same was<\/p>\n
       witnessed by all the staff in the office.\n<\/p>\n
       On hearing commotion created by you in the
\n       office, the undersigned came up and asked<\/p>\n
       you to keep quiet and take your advance
\n       and go. Even thereafter while leaving the
\n       office till the last you were abusing and
\n       threatening Mr.Nikhil Pasricha and also
\n       the undersigned.\n<\/p>\n
       You   are therefore    charged          with         the
\n       following misconduct:-\n<\/p>\n
       1.
\n          igFor insubordinate and indisciplined
\n       behaviour when on 22.12.1993 at about 3.25
\n       p.m.   you started shouting abuses in most<\/p>\n
       filthy   language    towards   Shri.Nikhil
\n       Pasricha ‘Director’ who was sitting in his
\n       cabin across the office hall.\n<\/p>\n
       The abuses used by you were<\/p>\n
       1.   Kutte (2) Behanchod (3) Maa-chod etc.
\n       etc.\n<\/p>\n
       When the undersigned asked to keep quiet
\n       and leave the office premises, you also
\n       started   abusing the    undersigned and
\n       threatened saying that: “Hum Tum Dono ko<\/p>\n
       sida kar dega aur dekhlega.”\n<\/p>\n
       Your above misbehaviour constitutes to
\n       serious act of misconduct being an act
\n       subversive   of  discipline    and  good
\n       behaviour   on  the   premises   of  the<\/p>\n
       establishment.\n<\/p>\n
       You are already under charge sheet for
\n       similar misconduct and you have again<\/p>\n
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\n                                     :   8   :\n<\/p>\n
                indulged in to the same. The Management
\n                therefore takes a very serious view of
\n                this matter.\n<\/p>\n
                2.   For refusing to accept the charge<\/p>\n
                sheet dtd. 21.12.1993, when served you at
\n                about 3.15 p.m.<\/p>\n
                You   are   directed    to   submit   your
\n                explanation in respect of the above charge
\n                sheet within 48 hrs. on receipt of this
\n                charges sheet.<\/p>\n
\n\n\n\n\n                                                \n                Further action in               this matter will be\n                considered    on                receipt    of   your\n                explanation.\"\n\n\n\n\n                                       \n     5.         It    is    the Respondent's case              that      after\n\n     service    of    the      charge-sheet,        due      enquiry         was\n\n     conducted\n                     \n                     in    which     the     Petitioner           did        not\n\n     participate.         As    a   result, the       Enquiry         Officer\n                    \n     submitted    his report and finding, on the basis                        of\n\n     which,    Director        Anita Pasricha       issued        dismissal\n\n<\/pre>\n
     order against the Petitioner on 20th May 1994 which<\/p>\n
     reads thus:\n<\/p>\n
                “Sir,<\/p>\n
                This is in continuation of the Show Cause
\n                Notice dtd.      6.5.1994 in respect of the
\n                Charge    Sheets     dated    21.12.93   and
\n                27.12.1993 and the       subsequent Enquiry
\n                conducted    by an     independent   Enquiry<\/p>\n
                Officer and his report and finding wherein
\n                he has found you guilty of the charges as
\n                specified in his report and findings and
\n                the same have been submitted to me as a<\/p>\n
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\n                              :   9    :\n<\/p><\/blockquote>\n
               Director of the Company for necessary
\n               action, as the Managing Director is not
\n               capable of taking any decision, since he
\n               has been representing the Company in the
\n               Enquiry proceedings.\n<\/p><\/blockquote>\n
               I   have   gone    through   the   Enquiry
\n               proceedings and the report and findings of<\/p>\n
               the Enquiry Officer and find that, inspite
\n               of giving you sufficient opportunity to
\n               attend the Enquiry and to participate you
\n               have failed to avail of the opportunities
\n               given to you by the Enquiry Officer and as<\/p>\n
               such the Enquiry is in confirmity with the
\n               principles of Natural Justice and we are
\n               in confirmity with the report and finding
\n               of the Enquiry Officer.\n<\/p><\/blockquote>\n
               The proved Acts of misconduct committed by
\n               you are of a grave and serious nature and
\n               warrant punishment of the dismissal from<\/p>\n
               service.   I have also gone through your
\n               part records and     find no extenuating
\n               circumstance to reduce the punishment, as
\n               such you are hereby dismissed from service<\/p>\n
               with   immediate    effect    i.e.    from
\n               21.5.1994.\n<\/p><\/blockquote>\n
               You are directed to collect all your legal
\n               dues if any from our accounts department
\n               on any working day, during working hours<\/p>\n
               with prior appointment.\n<\/p><\/blockquote>\n
                                   Yours truly,
\n                           For MOULDS & DIES PVT.LTD.\n<\/p><\/blockquote>\n
                                     (ANITA PASRICHA)
\n                                        DIRECTOR”\n<\/p><\/blockquote>\n
     6.        After   the service of dismissal order, the<\/p>\n
     Petitioner   filed complaint under the provisions of<\/p>\n
     The   Maharashtra   Recognition      of    Trade       Unions        &<\/p>\n
     Prevention   of   Unfair Labour Practices Act,                1971.\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span><\/p>\n
                                   :    10    :\n<\/p>\n
     However, the said complaint was disposed of without<\/p>\n
     examining the merits by the Industrial Court on 3rd<\/p>\n
     April    1998    for want of jurisdiction.                It is       only<\/p>\n
     thereafter      the Petitioner submitted application to<\/p>\n
     the    Management on 22nd April 1998 raising dispute.\n<\/p>\n
     However,    as    no    response was        received         from       the<\/p>\n
     Management, the Petitioner submitted representation<\/p>\n
     to    the Commissioner of Labour dated Nil which                        was<\/p>\n
     received    in    the    Office of       the     Commissioner            of<\/p>\n
     Labour    on    13th    May 1998.       Acting upon          the      said<\/p>\n
     representation,        the Conciliation proceedings                   were<\/p>\n
     resorted<\/p>\n
                 to which, however, failed.                On receipt of<\/p>\n
     the    failure    report, the appropriate Authority                      in<\/p>\n
     exercise    of    powers     of Government          under        Section<\/p>\n
     10(1)    and Section 12(5) of the Industrial Disputes<\/p>\n
     Act     ordered      issuance     of     Notification             making<\/p>\n
     reference       to    the   Labour       Court,         Mumbai          and<\/p>\n
     formulated      the    issue     as     referred        to     earlier.\n<\/p>\n
     Thereafter      statement      of     claim was filed            by     the<\/p>\n
     workman    on    9th    September 1999.           The      Respondent<\/p>\n
     Company    filed      written     statement       contesting            the<\/p>\n
     reference      proceedings.       On analysing the             material<\/p>\n
     on record and the stand taken by the rival parties,<\/p>\n
     the    Labour Court by Part-I Award passed on 8th May<\/p>\n
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\n                                  :    11   :\n<\/p>\n
     2002 took the view that the departmental enquiry on<\/p>\n
     the    basis    of which order of dismissal came to                    be<\/p>\n
     passed by the Respondent was vitiated by principles<\/p>\n
     of    natural    justice.       The view so       taken        by     the<\/p>\n
     Labour    Court came to be confirmed by this Court in<\/p>\n
     its    order dated 23rd February 2002 passed in                     Writ<\/p>\n
     Petition    No.104     of 2004 filed by         the      Respondent<\/p>\n
     Company.       As a consequence of order dated 8th                    May<\/p>\n
     2002,    the Labour Court allowed the parties to lead<\/p>\n
     evidence    with regard to the charges in respect                      of<\/p>\n
     which    the    Respondent      proceeded      to     take      action<\/p>\n
     against<\/p>\n
                the Petitioner.        In the said enquiry,                the<\/p>\n
     Respondent Management relied on the evidence of its<\/p>\n
     witness     Mr.Nikhil     Pasricha        and     of       Mr.Ramesh<\/p>\n
     Chuttani.       The Petitioner, however, only                examined<\/p>\n
     himself.       The   Labour     Court identified           the      four<\/p>\n
     charges    emanating     from the first charge sheet                   as<\/p>\n
     follows:\n<\/p>\n
                “1)    Willful      insubordination    and<\/p>\n
                indisciplined   behaviour    towards  Shri
\n                Nikhil Pasricha, the      Director of the
\n                company on 17.12.1993 at about 5.00 p.m.
\n                on the floor of the workshop.\n<\/p><\/blockquote>\n
                2) For riotous behaviour when you pick-up<\/p>\n
                on Iron rod threatening to assault, the
\n                Director Shri Nikhil Pasricha during the
\n                incidence on 17.12.1993 at 5.00 p.m.   in
\n                the workshop.\n<\/p><\/blockquote>\n
                                               ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span><\/p>\n
                                  :   12   :\n<\/p><\/blockquote>\n
                 3) For remaining absent of work without
\n                 permission on 10, 13 and 14 of December
\n                 1993.\n<\/p><\/blockquote>\n
                 4) For willful giving less production
\n                 compared to other machine men, on your own
\n                 machine.”\n<\/p><\/blockquote>\n
     7.          The   Labour    Court    has then        adverted         to<\/p>\n
     second     charge-sheet     which    framed      following           two<\/p>\n
     additional charges against the Petitioner, namely:\n<\/p>\n
                 “1) For insubordinate and indisciplined
\n                 behaviour when on 22.12.1993 at about 3.25
\n                 p.m.   started shouting abuses in most<\/p>\n
                 filthy   language towards    Shri   Nikhil
\n                 Pasricha “Director” who was sitting in
\n                 his cabin across the office hall.\n<\/p><\/blockquote>\n
                 The abuses used by Mr.Meghani were;     1)
\n                 Kutte, 2) Behan-chod, 3) Maa-chod etc.etc.\n<\/p><\/blockquote>\n
                 When the Managing Director asked to keep
\n                 quite   and leave    the office premises
\n                 Mr.Meghani started abusing and threatening<\/p>\n
                 say that, “Hum Tum Dono Ko sida kar dega
\n                 aur dekhlega”.\n<\/p><\/blockquote>\n
                 2) For refusing to accept the charge sheet
\n                 dated 21.12.1993 at about 3.15 p.m.”\n<\/p><\/blockquote>\n
     8.          Respondent     Management relied on             evidence<\/p>\n
     of   its    witness Nikhil Pasricha.          With a        view      to<\/p>\n
     substantiate      the    aforesaid charges in           the      first<\/p>\n
     charge-sheet,      the    Respondent’s        witness          Nikhil<\/p>\n
     Pasricha     in Paragraphs 6 and 9 of the affidavit in<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                            :   13   :\n<\/p>\n
     lieu of examination-in-chief has stated thus :\n<\/p>\n
              “6.   I say that on 17.12.1993 at about 5
\n              p.m., I went to the workshop. I noticed<\/p>\n
              that the Second Party workman was standing
\n              idle and was not doing any work. So much
\n              so that the machine on which he was to do<\/p>\n
              the   work was also      stopped   and    no
\n              production was being done on the said
\n              machine.    I was surprised at the attitude
\n              of the Second Party workman and therefore
\n              enquired    from the    Second Party, the<\/p>\n
              reasons for him as not to work on the
\n              machine.      Instead   of    giving     him
\n              satisfactory explanation, the Second Party
\n              workman in a very rude and indiscipline
\n              manner shouted at me by saying, “I have no<\/p>\n
              tool    to   operate my    machine”.     The
\n              submissions of the Second Party were not
\n              satisfactory and therefore I explained to<\/p>\n
              him that the tool was provided to him on
\n              11.12.1993. There was no work done by him
\n              on 13th and 14th December, 1993 because
\n              the Second Party workman was absent. Shri<\/p>\n
              Daman Meghani thereafter informed me that
\n              the tool so provided was broken and that
\n              he had informed the supervisor to this
\n              effect.    I informed    the Second Party
\n              workman as not to give any false and bogus
\n              reasons because the concerned supervisor<\/p>\n
              had not been reporting for work in the
\n              factory since 12.12.1993 and thus, by no<\/p>\n
              way, it is possible for you to report
\n              about the tool being       broken, to the
\n              concerned supervisor. Shri Daman Meghani
\n              came to know that the explanation given by
\n              him, have been substantially proved to be<\/p>\n
              false and that his act of not doing any
\n              work on 17.12.1993, though being provided,
\n              has   come to be      proved as a      gross
\n              misconduct.    Thus, Shri    Daman Meghani
\n              flared up, and in the most agitative and
\n              belligerent manner, started shouting at<\/p>\n
              me. The temper was high and behaviour was
\n              rude which was an indiscipline act. Shri
\n              Daman Meghani had lost       all sense of
\n              decency and balance of mind. I told him<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                    :   14   :\n<\/p><\/blockquote>\n
       to behave properly and not to raise his
\n       voice or being indiscipline,m but submit
\n       proper explanation for his not doing any
\n       work on the lathe machine. Surprisingly,
\n       Shri Daman Meghani instead of concealing<\/p>\n
       all   his misconducts,    again   indulged
\n       himself   by   shouting    in   the   most
\n       threatening language against me. He lost<\/p>\n
       all norms of discipline and picked up an
\n       iron rod with intentions to assault me.
\n       He was hurling filthy abuses at me.      I
\n       thought fit and proper as not to continue
\n       to be inside the workshop any further as<\/p>\n
       probably, Shri Daman Meghani may resort to
\n       threatenings into a reality and thus, I
\n       went up to the office and apprised the
\n       Managing Director of my Company of the
\n       aforesaid incidents in writing.\n<\/p>\n
       9.    I say and     submit that the act\n       committed   by Shri    Daman Meghani    is\n         \n<\/pre>\n
       disturbing the industrial peace of the
\n       factory. It was an act most unbecoming of
\n       him. As a matter of policy and principle,
\n       we   were never averse     to the    union<\/p>\n
       formation and had the best of relations
\n       with the Union so much so that our Company
\n       had   also entered    into a    settlement
\n       determining the service conditions of the
\n       workers   with the    Union.   Shri Daman
\n       Meghani however, considered himself to<\/p>\n
       have a privilege of behaving in a rude and
\n       indecent manner against the directors and<\/p>\n
       the   officials of    the Company merely
\n       because he was a member of the union. The
\n       abuses and the indiscipline acts of Shri
\n       Daman Meghani upon me being one of the
\n       directors of the Company, in the presence<\/p>\n
       of other employees have caused immense
\n       humiliation and embarrassment to me. I am
\n       certain that if I had continued to remain
\n       inside the workshop, Shri Daman Mehgani,
\n       would not only have further aggravated but
\n       in all certainties, would have committed<\/p>\n
       assault upon me. His language, behaviour
\n       and temperament were most indecent and
\n       unfit to be an employee of our Company. I
\n       say that the misconducts committed by Shri<\/p>\n
                                ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                    :    15    :\n<\/p>\n
                  daman Mehgani is grave and serious to
\n                  warrant a punishment not less than a
\n                  termination.   The termination so effected
\n                  be letter dated 20.5.1994 by the Company
\n                  is just, legal, fair and proper. I say<\/p>\n
                  that if Shri Daman Meghani is granted
\n                  reinstatement and\/or backwages, it would
\n                  cause irreparable loss, harm and injury to<\/p>\n
                  the First Party Company which cannot be
\n                  compensated in terms of money.”\n<\/p>\n
     9.           Insofar    as the charges arising out of the<\/p>\n
     second    charge-sheet,        the witness has               deposed        in<\/p>\n
     Paragraphs      7 and 8.      It is, however, not necessary<\/p>\n
     to     highlight       the     evidence         regarding            second<\/p>\n
     claim<\/p>\n
     charge-sheet, as the Labour Court has discarded the<\/p>\n
              of the Respondent Management in that                        behalf<\/p>\n
     which    finding     has     not    been     challenged             by     the<\/p>\n
     Respondent      Management.         Be    that as it            may,       the<\/p>\n
     witness       was    cross-examined               by       the       second<\/p>\n
     party\/workman.          However,        with        regard        to       the<\/p>\n
     material facts in relation to the incident occurred<\/p>\n
     on    17th    December 1993, the witness has                    withstood<\/p>\n
     the    cross-examination.          As a matter of fact,                  from<\/p>\n
     the    tenor    of   cross-examination,                there        was     no<\/p>\n
     attempt to allege falsity of the episode deposed by<\/p>\n
     the    management      witness.          The      cross-examination<\/p>\n
     proceeded      on the lines that the Petitioner was                         of<\/p>\n
     the    age    of witness’s father and that the                      witness<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                   :    16    :\n<\/p>\n
     was    not aware as to when the Petitioner had joined<\/p>\n
     the      Respondent         Company.             Even        in         the<\/p>\n
     cross-examination, this witness has deposed that on<\/p>\n
     the    given    day    (i.e.     17th    December         1993),        the<\/p>\n
     workman      was   in second shift duty and when he                     was<\/p>\n
     asked    why he was standing idle, he replied that he<\/p>\n
     did    not    have    the required tools to             operate         the<\/p>\n
     machine.       He has also deposed that the tools which<\/p>\n
     are    supplied      to the workman to cut the iron                   bars<\/p>\n
     were available in the Stores and delivered when the<\/p>\n
     workman      reports in that behalf to the                Supervisor.\n<\/p>\n
     The<\/p>\n
            cross-examination         then proceeds on the               lines<\/p>\n
     that    whether      such   record was maintained                in     the<\/p>\n
     Stores    by way of requisition slip and the contents<\/p>\n
     of    the requisition slip.         The witness has              replied<\/p>\n
     that he was not aware as to whether the requisition<\/p>\n
     slips    are placed on record for requisitioning                        the<\/p>\n
     tools.    The witness was then asked whether the life<\/p>\n
     of    the tool depends on the length of the steel                        to<\/p>\n
     be cut and that, after cutting of the iron bar, the<\/p>\n
     sharpness of the tools is reduced.                The witness has<\/p>\n
     further      asserted    that     it is for the           workman        to<\/p>\n
     regrind      the   tool himself.        The witness          has      also<\/p>\n
     deposed      that in exceptional cases, the tools would<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                    :   17    :\n<\/p>\n
     break.     He    has    denied the       suggestion            that       the<\/p>\n
     workmen are required to write requisition slips for<\/p>\n
     tools    one or two days in advance.                The witness has<\/p>\n
     admitted that the workman has demanded tools to the<\/p>\n
     Supervisor      on    11th December 1993 and                volunteered<\/p>\n
     that    the same were supplied to the Petitioner.                          He<\/p>\n
     has replied that he was not aware as to whether any<\/p>\n
     proof    regarding such supply of the tools has                         been<\/p>\n
     placed    on    record.        The     cross-examination                then<\/p>\n
     proceeds    with      the    details regarding              absence        of<\/p>\n
     Supervisor      Ramesh      Chuttani     on        12th      and        13th<\/p>\n
     December<\/p>\n
                 1993 and that the Petitioner was also                          on<\/p>\n
     leave    on those days.        The suggestion made to                   this<\/p>\n
     witness    that      tools    were      not      supplied          to     the<\/p>\n
     Petitioner      on 11th December 1993 as the Supervisor<\/p>\n
     was    absent    on    that day has         been      denied.           This<\/p>\n
     witness    has    also denied the suggestion                   that       the<\/p>\n
     tools    made available to the Petitioner had                       become<\/p>\n
     useless    due to utilisation on 15th and 16th.                         This<\/p>\n
     witness    has    also      asserted that          he     had      himself<\/p>\n
     ascertained      from    the Stores and found that                    tools<\/p>\n
     were    already      issued    to the       Petitioner           on     11th<\/p>\n
     December 1993 which position was confirmed from the<\/p>\n
     requisition      slip.      Then suggestion is put to                   this<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                   :   18   :\n<\/p>\n
     witness      that    he   did not like the        words        of     the<\/p>\n
     Petitioner addressing him in Hindi as “TU”.                     He has<\/p>\n
     also    denied the suggestion that being addressed as<\/p>\n
     “TU”,       he got annoyed and abused the workman at the<\/p>\n
     top    of    his voice and threatened him to slap.                     In<\/p>\n
     response       to     the   question       put        during          the<\/p>\n
     cross-examination,          the witness has denied that the<\/p>\n
     Petitioner      retorted that he would also slap if the<\/p>\n
     witness      had    threatened    to slap      the      Petitioner.\n<\/p>\n
     This    is the only cross-examination relevant on the<\/p>\n
     point    in issue with regard to the incident of 17th<\/p>\n
     December<\/p>\n
                   1993 concerning the charges of the                  first<\/p>\n
     charge-sheet.\n<\/p>\n
     10.          As aforesaid, the Management also examined<\/p>\n
     Ramesh      Chuttani as its witness.         Essentially, this<\/p>\n
     witness was examined in respect of incident of 22nd<\/p>\n
     December      1993 concerning the second            charge-sheet.\n<\/p>\n
     However, this witness has also deposed on the facts<\/p>\n
     which    may    be relevant to consider the charges                    in<\/p>\n
     the    first charge-sheet.        In the affidavit in               lieu<\/p>\n
     of    examination-in-chief,        this witness has             stated<\/p>\n
     that     he    was    working    as   Supervisor         with         the<\/p>\n
     Respondent      Company for more than 18 years and that<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                   :   19    :\n<\/p>\n
     the   Petitioner was working in the factory for last<\/p>\n
     several    years as turner on the lathe machine.                          In<\/p>\n
     Paragraph     4   of his evidence, he has deposed                      that<\/p>\n
     the   tools    required by the operator are issued                        on<\/p>\n
     the   basis    of    the     requisition          slip      and      that,<\/p>\n
     Petitioner     was    last    issued       the     tools        on     11th<\/p>\n
     December    1993.      He    has      then      deposed         that      he<\/p>\n
     proceeded     on leave on 12th December 1993                    onwards.\n<\/p>\n
     The   witness     then stated in paragraphs 8 and 9                       of<\/p>\n
     the examination-in-chief as follows :\n<\/p>\n
                “8.\n<\/p><\/blockquote>\n
                    igI say that I am looking after the
\n                production of the Second party workman and<\/p>\n
                I always found that production given by
\n                him was extremely low and undesirable.
\n                The factum of such low production was
\n                reported by me to      the Management on
\n                several occasions. I have also verbally
\n                warned Shri Daman Meghani to improve his<\/p>\n
                production.   It is true that I have not
\n                given any Memo to the Second Party workman<\/p>\n
                because ours is a very small establishment
\n                and much of the work is done orally.\n<\/p><\/blockquote>\n
                9. I say that I have been maintaining the
\n                production register which      records the<\/p>\n
                production   given by     each and    every
\n                employees.   The production record of the
\n                Second Party for the period from Jan.1993
\n                to Dec.1993 would reveal the extent of low
\n                production given by him.”\n<\/p><\/blockquote>\n
     11.        The witness was cross-examined with regard<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                  :   20   :\n<\/p>\n
     to    the   above   facts    as    can   be    discerned           from<\/p>\n
     Paragraphs 12 and 13 which reads thus :\n<\/p>\n
                 “12.    There is a register maintained by
\n                 the company in respect of production given
\n                 by the worker, however the production<\/p>\n
                 register is not maintained daily since I
\n                 am the only persons to maintain that
\n                 record.    It is because sometimes I was to
\n                 go outside and due to that it was not
\n                 possible for me to maintain production<\/p>\n
                 register daily I cannot say that the
\n                 number of operators working in the company
\n                 in December 1993. I do not know as to
\n                 whether the company did not file any
\n                 record to show that Meghani’s production<\/p>\n
                 was less than other employees of the
\n                 company. I have mentioned in my affidavit
\n                 that the production given by Meghani was<\/p>\n
                 less than other workers.        It is not
\n                 correct to say that Meghani has given more
\n                 production and I am deposing falsely in
\n                 that regard.     It is not correct to say<\/p>\n
                 that I did not verbally warned to Meghani
\n                 about his less production.\n<\/p><\/blockquote>\n
                 It is true that the company used to
\n                 maintain separate record about supply of
\n                 tools to the workers. I do not know as to<\/p>\n
                 whether the company did not file any
\n                 document in respect of supply of tools to<\/p>\n
                 the concerned workman on 11.12.1993.    It
\n                 is not correct to say that on 11.12.1993
\n                 no tools were supplied to the second party
\n                 workman.”\n<\/p><\/blockquote>\n
     12.         On the other hand, the Petitioner examined<\/p>\n
     himself      and    in   his      affidavit      in       lieu        of<\/p>\n
     examination-in-chief in relation to the incident of<\/p>\n
     17th December 1993, the Petitioner has stated thus:\n<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span><\/p>\n
                                   :   21   :\n<\/p><\/blockquote>\n
                 “4.   I say that on 17th December 1993, I
\n                 was in the 2nd shift commenced at 3.30
\n                 p.m.   I say that I reported my duties at
\n                 3.30 p.m.    and as usual I cleaned the
\n                 machine before commencing the work and I<\/p>\n
                 was standing in front of the Lathe Machine
\n                 provided to me for want of tools to
\n                 commence the work. I say that at that<\/p>\n
                 time one of the Directors viz.Mr.Nikhil
\n                 Pasricha came to me and enquired as to why
\n                 I was waiting. I replied to him that the
\n                 tools required for operating the machine
\n                 was broken and that I had already informed<\/p>\n
                 of the same to my supervisor on 11th
\n                 December 1993 itself but I did not receive
\n                 it. I say that on hearing me, Mr.Pasricha
\n                 got annoyed and he threatened to slap me.
\n                 I say that when I asked for the reason for<\/p>\n
                 the said threat, the said Director told
\n                 that    during   the     course   of   the
\n                 conversation, I had uttered the word “Tu”\n<\/p><\/blockquote>\n
                 while referring to Mr.Pasricha.      I say
\n                 that as Mr.Pasricha was very much younger
\n                 to me and that I had even worked with his
\n                 father and hence I used the word “Tu”. I<\/p>\n
                 say that when he threatened me to slap, I
\n                 told him if he slaps me I will also slap
\n                 him. I say that I have not abused neither
\n                 Mr.Nikhil Pasricha or other person on that
\n                 day.”\n<\/p><\/blockquote>\n
     13.         The rest of the evidence of the Petitioner<\/p>\n
     is    in   respect of incident of 22nd December                   1993,<\/p>\n
     The    Petitioner     has    been cross-examined             on     this<\/p>\n
     material aspects.         In the cross-examination, he has<\/p>\n
     admitted     that    in    the Office,     Directors           of     the<\/p>\n
     Company used to sit.         He has stated that there is a<\/p>\n
     partition     in    the Office and to the other side                   of<\/p>\n
     the    Office,     the    Directors used to sit.               He     has<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                     :    22   :\n<\/p>\n
     denied that he was aware that the Directors used to<\/p>\n
     see    the   staff    from      their cabin.             He     has      also<\/p>\n
     admitted     the presence of other named staff in                          the<\/p>\n
     Office    on the given date.             He has admitted that he<\/p>\n
     knows    Nikhil Pasricha and that he was Director                           of<\/p>\n
     the    Company,     who incidentally is son                  of     Avinash<\/p>\n
     Pasricha,     the    founder member of the Company.                         He<\/p>\n
     has    denied    knowledge about the Nikhil                   Pasricha’s<\/p>\n
     qualification.        He      has    gone     to     the      extent        of<\/p>\n
     denying      that the knowledge of Engineering Graduate<\/p>\n
     is    more   than    his      personal       knowledge.             He     has<\/p>\n
     admitted that Ramesh Chuttani is only Supervisor in<\/p>\n
     the    Company     and that he was taking work from                        all<\/p>\n
     category     of workers by allocating the work to                          the<\/p>\n
     workers.     He has admitted that said Ramesh Chuttani<\/p>\n
     was    responsible       to    supply raw         material          and     to<\/p>\n
     maintain     production record.           He has admitted                that<\/p>\n
     belts, spare-parts, tools, instruments and delivery<\/p>\n
     challans     are    to    be kept and         maintained            in     the<\/p>\n
     Stores.      He has also admitted that the person                          who<\/p>\n
     sits    in   the    Store Room was responsible                    to     look<\/p>\n
     after    the Stores Department and sometimes,                        Ramesh<\/p>\n
     Chuttani     used    to    sit      in   the      Stores.           He     has<\/p>\n
     admitted that the Policy of the Company is that the<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                    :   23   :\n<\/p>\n
     materials      from    Stores     can be taken out            only      on<\/p>\n
     submitting      requisition       slip.    He has        denied        the<\/p>\n
     suggestion      that    occasionally, tools,             instruments<\/p>\n
     etc.     were    taken      out from the      Stores.           He     has<\/p>\n
     admitted that he was working in the second shift in<\/p>\n
     the    factory on 17th December 1993 which starts                       at<\/p>\n
     3.30 p.m.      He has denied the suggestion that Nikhil<\/p>\n
     Pasricha      had come to the shop floor on that day at<\/p>\n
     5.00 p.m.      He has admitted that Nikhil Pasricha saw<\/p>\n
     him    idle    at the lathe machine at about 3.40                    p.m.<\/p>\n
     However,      he has admitted that when Nikhil Pasricha<\/p>\n
     saw<\/p>\n
            him idle at lathe machine, asked him as to why<\/p>\n
     he    was    idle at the lathe machine.            He has        denied<\/p>\n
     the    suggestion      that he roughly told            him      (Nikhil<\/p>\n
     Pasricha)      that    he    do   not have      tools.          He     has<\/p>\n
     volunteered that he told Nikhil Pasricha the reason<\/p>\n
     of    his idleness for want of tools and that, he was<\/p>\n
     making      efforts with whatever tools he had with him<\/p>\n
     at    that    time.    He has denied the suggestion                  that<\/p>\n
     when    he told Nikhil Pasricha that he had no tools,<\/p>\n
     he    was told to take the tools from the Stores.                       He<\/p>\n
     has    then stated that as soon as he disclosed                      that<\/p>\n
     he had no tools, Nikhil Pasricha raised his hand to<\/p>\n
     beat    him.     Significantly, he admits that                  he     had<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                    :    24    :\n<\/p>\n
     taken      the tools from the Company on 11th                     December<\/p>\n
     1993.       He has also admitted that if the                    sharpness<\/p>\n
     of the tools is lost, the operator of the tools has<\/p>\n
     to grind it to make it sharp.                He has further added<\/p>\n
     to    it    that    if any tool is broken, it has                    to     be<\/p>\n
     deposited      in    the Stores.        He has denied             that      on<\/p>\n
     17th    December 1993, in annoyance he had lifted the<\/p>\n
     iron    bar    in order to assault Mr.Nikhil                    Pasricha.\n<\/p>\n
     He    has    also    denied    suggestion           that      if     Nikhil<\/p>\n
     Pasricha      had continued to remain at that place                         he<\/p>\n
     would      have assaulted him.          He has also denied                 the<\/p>\n
     suggestion<\/p>\n
                     that therefore Nikhil Pasricha went                         to<\/p>\n
     his    cabin    leaving the place.           He has also             denied<\/p>\n
     the    suggestion that he was shouting at the top                           of<\/p>\n
     his    voice and was dishonouring Nikhil Pasricha                           by<\/p>\n
     using      filthy    words.       He     has      also       denied        the<\/p>\n
     suggestion that Nikhil Pasricha did not threaten to<\/p>\n
     assault him and he was deposing falsely.                        The other<\/p>\n
     part    of    the cross-examination is not relevant                         to<\/p>\n
     the    charges which have been held as proved by                           the<\/p>\n
     Labour Court in relation to first charge-sheet.<\/p>\n
\n\n\n\n\n\n     14.          Analysing    the      above said          evidence,           the\n\n     Labour      Court    first examined the evidence                    of     the\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:24:12 :::<\/span>\n                                      :    25   :\n\n\n\n     Respondent.      On analysing the said evidence, it has\n\n     found     that       the         cross-examination               of       the\n\n     Respondent's      witness or the evidence given by                        the\n\n\n\n\n                                                                           \n     Petitioner      was not relevant to rebut the fact that\n\n\n\n\n                                                   \n<\/pre>\n
     on 17th December 1993 no incident as claimed by the<\/p>\n
     Respondent’s      witness        had occurred.          It     has      also<\/p>\n
     noted    that    the evidence clearly establishes                       that<\/p>\n
     tools as requisitioned were in fact supplied to the<\/p>\n
     Petitioner.       The Labour Court has then noted                       that<\/p>\n
     the    claim    of    the Petitioner was that                the      tools<\/p>\n
     which    were    supplied were broken and                 useless         for<\/p>\n
     which,<\/p>\n
               he could not continue with the work on                          the<\/p>\n
     lathe    machine.       The Labour Court has                also      noted<\/p>\n
     that    it is not the case of the Petitioner that                          he<\/p>\n
     requisitioned        the tools by filling the requisition<\/p>\n
     slip    and    that,    it was not supplied to                 him.        In<\/p>\n
     other    words,      the Labour Court proceeded                  to     hold<\/p>\n
     that     the    tenor      of       cross-examination            by       the<\/p>\n
     Petitioner      workman was of no consequence and                       that<\/p>\n
     the    Respondent      Management through             their        witness<\/p>\n
     have established that the stated incident had taken<\/p>\n
     place,    which evidence has remained unshaken.                           The<\/p>\n
     Labour     Court      has    positively          found       that         the<\/p>\n
     cross-examination by the Petitioner did not impeach<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                      :   26    :\n<\/p>\n
     the    credibility      of the Management               witness.            The<\/p>\n
     Labour Court has taken the view that with regard to<\/p>\n
     the    main    allegation-that the Petitioner was                         seen<\/p>\n
     standing      idle    at    the     lathe     machine          by     Nikhil<\/p>\n
     Pasricha      and    without any justifiable                  reason,        he<\/p>\n
     behaved      in manner alleged by Nikhil Pasricha,                          was<\/p>\n
     established.          That      was      sufficient           to     proceed<\/p>\n
     against the Petitioner on the ground of misconduct,<\/p>\n
     as    the    evidence      of Management           witness         was      not<\/p>\n
     rebutted      at all.      In that, the Petitioner                   behaved<\/p>\n
     in    an    indisciplined and rude manner                   with      Nikhil<\/p>\n
     Pasricha when asked about his idleness at the lathe<\/p>\n
     machine.      The Labour Court has then adverted to the<\/p>\n
     cross-examination where suggestion was given to the<\/p>\n
     Management’s        witness      that he was annoyed                 because<\/p>\n
     the    Petitioner used the word “TU”.                   While        dealing<\/p>\n
     with that aspect, the Labour Court noted that these<\/p>\n
     are    not    only suggestions but has been pleaded                          as<\/p>\n
     defence which speaks volumes of insubordination and<\/p>\n
     defying      the authority of the employer.                    The Labour<\/p>\n
     Court has opined that being senior in age, could be<\/p>\n
     no    justification        to    defy the        authority           of     the<\/p>\n
     employer      and such defiance disregards the                       control<\/p>\n
     and    supervision      on      him.      The      employee          commits<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                     :   27   :\n<\/p>\n
     misconduct      towards his employer.            The Labour Court<\/p>\n
     has    opined    that      such conduct of the            workman        of<\/p>\n
     challenging      the employer (Director of the Company)<\/p>\n
     and to abuse and threaten him that he would slap in<\/p>\n
     return    was    subversive of discipline.                The     Labour<\/p>\n
     Court    has also found that this suggestion does not<\/p>\n
     rebut    the    fact      that incident as claimed               by     the<\/p>\n
     witness Nikhil Pasricha had not taken place at all.\n<\/p>\n
     This    is    the finding recorded by the Labour                    Court<\/p>\n
     with    regard to the incident of 17th December                       1993<\/p>\n
     which    is ascribable to the first charge-sheet.                          I<\/p>\n
     am<\/p>\n
           not burdening this Judgment with the discussion<\/p>\n
     appearing      in    Paragraphs 11 and 12 concerning                    the<\/p>\n
     allegations      in      the   second charge-sheet,              as     the<\/p>\n
     Labour    Court      has    disregarded the         claim        of     the<\/p>\n
     Management      in that behalf and held that the stated<\/p>\n
     charges      therein have not been proved.                The     Labour<\/p>\n
     Court    in    Paragraph       13 onwards has         proceeded          to<\/p>\n
     discuss      the efficacy of the evidence given by                      the<\/p>\n
     Petitioner.         In    Paragraph 14, the details of                  the<\/p>\n
     cross-examination          of the Petitioner are spelt out.<\/p>\n
\n\n     The    Labour Court on analysing the evidence of                        the\n\n\n\n\n\n     Petitioner,      proceeded to hold that the                Petitioner\n\n     in    his affidavit has claimed that he did not                       tell\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 14:24:12 :::<\/span>\n                                    :    28   :\n\n\n\n     on    enquiry      made   by Nikhil Pasricha that                he     had\n\n     already       informed       his     Supervisor           about         the\n\n     requirement        of   production tool on          11th       December\n\n\n\n\n                                                                          \n     1993    and he did not receive it.             The Labour           Court\n\n\n\n\n                                                 \n     then    found      that   this clearly shows            that      Nikhil\n\n     Pasricha      rightly     assumed that the Petitioner                   was\n\n     giving      false    reason.      The Labour Court           has      then\n\n\n\n\n                                                \n     found    that the Petitioner was suppressing material\n\n     facts    and      there   was      justification          for     Nikhil\n\n\n\n\n                                      \n     Pasricha      to tell the Petitioner not to give                    false\n\n     excuse      and    to   do   his work.       On     analysing           the\n\n     Petitioner's\n                       \n                         evidence, the Labour Court has                  found\n\n     that    the Petitioner's attitude was adamant                     enough\n                      \n<\/pre>\n
     to constitute misconduct as alleged.\n<\/p>\n
     15.          In    Paragraph      15, the Court proceeded                to<\/p>\n
     record      that    only two charges have been framed                    by<\/p>\n
     the management against the Petitioner\/second party-\n<\/p>\n
     of     wilful       insubordination          and        indiscipline<\/p>\n
     behaviour towards Shri Nikhil Pasricha the Director<\/p>\n
     of    the Company on 17th December 1993 at 5.00                       p.m.<\/p>\n
     on    the    floor of the workshop and that of                   riotous<\/p>\n
     behaviour      when     the Petitioner picked up the                  iron<\/p>\n
     threatening        to   assault Director         Nikhil        Pasricha<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                    :    29   :\n<\/p>\n
     during    the incident on 17th December 1993 at about<\/p>\n
     5.00    p.m.      in the workshop.       The Labour Court then<\/p>\n
     went    on to hold that even if other charges are not<\/p>\n
     proved    only      one   charge having been             proved,         the<\/p>\n
     employer      would have right to inflict punishment on<\/p>\n
     the workman.\n<\/p>\n
     16.          It    then proceeded to examine the question<\/p>\n
     whether      the    quantum    of punishment           of     dismissal<\/p>\n
     imposed      by    the Management was just and proper                     or<\/p>\n
     shockingly        disproportionate.         In this context,              it<\/p>\n
     has noted that the Petitioner was in the employment<\/p>\n
     for    over 34 years of his life with the                   Respondent<\/p>\n
     Company      and it would be inhuman to take the strict<\/p>\n
     view    to    pass    order    of    dismissal.            With        this<\/p>\n
     observation,        the   Labour Court has held               that       the<\/p>\n
     order    of    dismissal passed against the                 Petitioner<\/p>\n
     was    extremely      harsh punishment.           Instead, in            its<\/p>\n
     view,    the      Petitioner      should      be     reinstated           to<\/p>\n
     receive      his legal dues depriving him of back wages<\/p>\n
     and continuity in service which would meet the ends<\/p>\n
     of justice.        Having said thus, it proceeded to pass<\/p>\n
     the following award:\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span><\/p>\n
                            :   30    :\n<\/p>\n
              “1. The reference is partly allowed.\n<\/p>\n
              2.   It is hereby held that, the first
\n              party succeeded in proving charge No.1 and<\/p>\n
              2 as is mentioned in the charge sheet
\n              dated 21\/12\/1993.\n<\/p>\n
              3.   The rest of the charges in the charge
\n              sheet dated 21.12.1993, are not proved
\n              before the court.\n<\/p>\n
              4.   The first party failed to prove the<\/p>\n
              charges mentioned in Charge sheet dated
\n              27.12.1993.\n<\/p>\n
              5.   The punishment of dismissal needs to
\n              be   interfered   after    setting   aside<\/p>\n
              dismissal of the     second party w.e.f.
\n              21.5.1994.\n<\/p>\n
              6.
\n                 igSince the misconduct at
\n              as mentioned in the charge
\n              21.12.1993   is   proved,
\n                                                   Sr.No.1 and 2<\/span>
\n                                                    sheet dated
\n                                                   the   moulded
\n              punishment shall be deprival         of back wages<\/p>\n
              and continuity of service            ordering his
\n              reinstatement.\n<\/p>\n
              7.   The first party employer is hereby
\n              directed to pay all the legal dues to the
\n              second party which are available to him<\/p>\n
              till 21.5.1994.\n<\/p>\n
              8. The first party is directed to pay the
\n              legal dues forthwith.\n<\/p>\n
              9.   The award be sent to the appropriate
\n              Government for its publication.”\n<\/p>\n
     17.      The   Respondent      Management            has        not<\/p>\n
     challenged the finding recorded by the Labour Court<\/p>\n
     that     the     punishment          was           shockingly<\/p>\n
     disproportionate.   It has also not challenged                  the<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                      :    31   :\n<\/p>\n
     finding with regard to other charges as not proved.\n<\/p>\n
     It is the Petitioner\/workman who has come by way of<\/p>\n
     present      Writ    Petition,        questioning          the      finding<\/p>\n
     recorded by the Labour Court with regard to the two<\/p>\n
     charges      which have been held to be proved                      against<\/p>\n
     him    and    further the order as passed of                    depriving<\/p>\n
     him    of    back wages and continuity of service.                          In<\/p>\n
     the    circumstances,          the    scope of enquiry              in     the<\/p>\n
     present      Judgment      would be limited to               the     issues<\/p>\n
     raised at the instance of the workman.\n<\/p>\n
     18.<\/p>\n
                  Insofar      as    the finding recorded                by     the<\/p>\n
     Labour      Court    that      two charges have            been      proved<\/p>\n
     against      the    Petitioner, the argument is that                       the<\/p>\n
     said    finding      is manifestly wrong.              It is        further<\/p>\n
     contended      that      in any case, the finding                 recorded<\/p>\n
     with    regard      to    the    second       charge       having        been<\/p>\n
     proved-       regarding         riotous        behaviour          of       the<\/p>\n
     Petitioner, is untenable as no reason whatsoever to<\/p>\n
     support      the    same has been recorded by                 the      lower<\/p>\n
     Court.       Instead, the lower Court has                  straightaway<\/p>\n
     jumped      to that conclusion.           I shall deal with                the<\/p>\n
     former contention first.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span><\/p>\n
                                      :    32    :\n\n\n\n     19.          On    analysing        the evidence on record                  and\n\n     keeping      in mind the finding recorded by the Labour\n\n     Court,    as referred to in the earlier part of                           this\n\n\n\n\n                                                                             \n     Judgment,      I have no hesitation in taking the                         view\n\n\n\n\n                                                     \n     that     the      said    finding         cannot      be      termed         as\n\n     manifestly        wrong    or perverse.          View taken by              the\n\n     Labour    Court is founded on the evidence on record.\n\n\n\n\n                                                    \n     I am in agreement with the said view.                       In that, the\n\n     Management        witnesses have spoken about the                     actual\n\n\n\n\n                                        \n     incident      as unfolded on 17th December 1993 at 5.00\n\n     p.m.     The      tenor    of    cross-examination               does       not\n\n     discredit\n                       \n<\/pre>\n
                    the version given by the said witnesses.\n<\/p>\n
     Moreover,      even      the    evidence of          Petitioner           also<\/p>\n
     militates      against      his      stand.          I    have       already<\/p>\n
     reproduced        the    evidence of Petitioner as well                      as<\/p>\n
     the    Management        witness in extenso in the                   earlier<\/p>\n
     part    of    this Judgment.          The analysis done by                  the<\/p>\n
     Labour        Court       of        the        said       evidence           is<\/p>\n
     unexceptionable          and    perhaps the          only      conclusion<\/p>\n
     that could be reached.<\/p>\n
\n\n\n\n     20.          Thus       understood,        no      interference              in\n\n\n\n\n\n     exercise      of writ jurisdiction under Article 226 of\n\n     the Constitution of India is warranted.                        It is well\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 14:24:12 :::<\/span>\n                                     :    33   :\n\n\n\n     established      legal position that it is not open for\n\n<\/pre>\n
     this Court to reappreciate the evidence with a view<\/p>\n
     to    record a different finding of fact than the one<\/p>\n
     recorded      by the lower Court merely because another<\/p>\n
     view    was    possible on the basis of same                  evidence.\n<\/p>\n
     As    aforesaid,      I have no hesitation in taking                     the<\/p>\n
     view    that the opinion recorded by the Labour Court<\/p>\n
     on    the point in issue is neither error apparent on<\/p>\n
     the    face    of the record, nor manifestly                  wrong       or<\/p>\n
     perverse.\n<\/p>\n
     21.<\/p>\n
                  Insofar      as       the    latter       argument           is<\/p>\n
     concerned,      that     the Labour Court appears to                   have<\/p>\n
     straightaway jumped to the finding that even charge<\/p>\n
     No.2    of    riotous behaviour of the             Petitioner            has<\/p>\n
     been    proved      is   concerned,       the     argument         though<\/p>\n
     attractive      at    the   first blush, will have                 to     be<\/p>\n
     rejected.       Inasmuch as, the sequence in which                       the<\/p>\n
     evidence      has    been examined and considered by                     the<\/p>\n
     Labour    Court      is not happily worded.                The     Labour<\/p>\n
     Court    could      have analysed the matter in a                  better<\/p>\n
     way.     For,    the     Labour      Court    has      proceeded          to<\/p>\n
     examine the evidence with regard to the two charges<\/p>\n
     together.      I would have considered to set aside the<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                     :    34    :\n<\/p>\n
     finding     qua    this    charge        only if I         were      to     be<\/p>\n
     convinced     that    there        is     absolutely          no       legal<\/p>\n
     evidence     to support the said conclusion.                      However,<\/p>\n
     it   is    seen    that the Plaintiff’s              witness         Nikhil<\/p>\n
     Pasricha     has    deposed        about       that      fact       in     his<\/p>\n
     affidavit     in    lieu    of      examination-in-chief                   (in<\/p>\n
     Paragraph     6)    that    during           the    discussion,            the<\/p>\n
     Petitioner indulged in shouting in most threatening<\/p>\n
     tone and language against him and lost all norms of<\/p>\n
     discipline and picked up an iron rod with intention<\/p>\n
     to   assault      him.    That the Petitioner was                   hurling<\/p>\n
     filthy abuses to him for which he thought it proper<\/p>\n
     to   remove      himself    from        the    workshop.            In     the<\/p>\n
     cross-examination,         there is absolutely no case put<\/p>\n
     by the Petitioner to challenge this version.                           There<\/p>\n
     is     not        even     a       suggestion            during            the<\/p>\n
     cross-examination         that      the case so spoken by                  the<\/p>\n
     witness is false.         The falsity has not been alleged<\/p>\n
     by   the    Petitioner      even        in    his    own        evidence.\n<\/p>\n
     Indeed,     the    Petitioner has denied the                  suggestion<\/p>\n
     that had Nikhil Pasricha continued to remain in the<\/p>\n
     place,     the    Petitioner would have              assaulted           him.\n<\/p>\n
     The fact remains that the version of the Management<\/p>\n
     witness     has    not    been challenged at               all      in     the<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                      :    35   :\n<\/p>\n
     cross-examination.             The argument of the Petitioner<\/p>\n
     that    no    independent witness was               examined         though<\/p>\n
     available,        clearly      overlooks that the             Petitioner<\/p>\n
     had    not    even      bothered to allege falsity                  of     the<\/p>\n
     claim    of    the      said    witness       nor    confronted            the<\/p>\n
     witness       during      the       cross-examination             or     even<\/p>\n
     suggested      that the said allegation was                   incorrect.<\/p>\n
\n\n\n\n\n                                                   \n     This    is    what      the Labour Court has             opined        while\n\n     discussing        the    entire      evidence       of     Respondent's\n\n\n\n\n                                        \n     witness      as    a whole.      Therefore, no fault                can     be\n\n     found    with the finding reached by the Labour Court\n\n     that    the\n                       \n                    two allegations of             insubordination              and\n\n     indiscipline        as    also      riotous     behaviour           of     the\n                      \n     Petitioner        have    been proved on the basis                  of     the\n\n     evidence      given,      including       the admission             of     the\n\n<\/pre>\n
     Petitioner in his own evidence.\n<\/p>\n
     22.          In    any    case, I am in agreement with                     the<\/p>\n
     opinion      recorded      by the Labour Court that                  it     is<\/p>\n
     enough    for      the Management if it were to prove                       at<\/p>\n
     least    one charge against the Petitioner which                           may<\/p>\n
     justify      the    action      against       the    Petitioner            for<\/p>\n
     having    committed misconduct inviting punishment of<\/p>\n
     dismissal      from      service.      In the case of             Sarabhai<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                        :    36    :\n<\/p>\n
     M.Chemicals (S.M.Chemicals & Electronics) Ltd.                                 vs.<\/p>\n
     M.S.Ajmera         &    Anr.<\/a>     reported in 1980 (1) LLJ                     295,
\n                                                                                   295<\/span><\/p>\n
     the    Division Bench of our High Court has expounded<\/p>\n
     as     to    what       amounts        to     insubordination                  and<\/p>\n
     indiscipline.           It has further opined that it is not<\/p>\n
     as    if    action       cannot       be    proceeded          against         the<\/p>\n
     employee of a solitary instance of lawful order and<\/p>\n
     that    for sustaining such charge of insubordination<\/p>\n
     several      repeated       instances         of      disobedience             are<\/p>\n
     necessary.         In     my opinion, the Labour                  Court        has<\/p>\n
     rightly       observed         that           the        allegation             of<\/p>\n
     indiscipline
\n                     ig     behaviour       as    well        as      of     riotous<\/p>\n
     behaviour of the Petitioner have been proved.                                Each<\/p>\n
     of    them    independently            would be         good      enough        to<\/p>\n
     dismiss      the       Petitioner, by way of punishment                        for<\/p>\n
     the    said misconduct.           Even for this reason, I                      see<\/p>\n
     no    basis    to exercise writ jurisdiction so                          as     to<\/p>\n
     overturn the conclusion reached by the Labour Court<\/p>\n
     to    the    effect       that    the       Management           has     proved<\/p>\n
     atleast charge of wilful indiscipline behaviour and<\/p>\n
     also of riotous behaviour of the Petitioner on 17th<\/p>\n
     December      1993 at about 5.00 p.m.                   in the workshop.<\/p>\n
\n\n\n\n\n\n     Taking      overall view of the matter, therefore,                             the\n\n     conclusion      reached        by the Labour Court                  that       the\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 14:24:12 :::<\/span>\n                                    :    37    :\n\n\n\n     Management     has     proved      at least        two      charges        is\n\n     inescapable.\n\n\n\n\n                                                                            \n     23.        That    takes      me to the argument               regarding\n\n\n\n\n                                                   \n     the    quantum    of    punishment.          Indeed,        the     Labour\n\n     Court    has   set-aside        the order of          dismissal           and\n\n     instead,    directed reinstatement of the                    Petitioner\n\n\n\n\n                                                  \n     with    deprival     of    back wages         and     continuity           of\n\n     service    but    to    pay     all the legal           dues       to     the\n\n\n\n\n                                      \n     Petitioner     available        till 21st May 1994.                 It     is\n\n     also    true   that the Respondent Management has                         not\n\n     chosen\n                    \n               to challenge this part of the order                       passed\n\n     by the Labour Court.          The question is:              whether the\n                   \n     relief    granted by the Labour Court can be said                          to\n\n     be    inappropriate.       The argument of the               Petitioner\n\n     is    that once the order of dismissal is                    set-aside,\n      \n\n\n     it    should necessarily be followed with an order of\n   \n\n\n\n     reinstatement      with     back       wages.         In     any      case,\n\n     Clauses     6,     7      and      8    of     the        Award         were\n\n\n\n\n\n     self-contradictory.           In    that,        the      employer         is\n\n     directed    to    pay all the legal dues to the                     second\n\n     party    which are payable to him till 21st May 1994,\n\n\n\n\n\n<\/pre>\n
     but has wrongly limited it till that day even after<\/p>\n
     having directed reinstatement of the Petitioner-who<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                      :    38   :\n<\/p>\n
     in    turn would be deemed to be in service till                           the<\/p>\n
     date of his superannuation.\n<\/p>\n
     24.          Insofar    as      the view taken by the                Labour<\/p>\n
     Court    depriving      the Petitioner of relief of                      back<\/p>\n
     wages    and    continuity of service is concerned,                         in<\/p>\n
     the fact situation of the present case, the same is<\/p>\n
     a    possible view.        Clauses 5 to 8 of the Award will<\/p>\n
     have    to    be    read    as a      whole-      as     one      complete<\/p>\n
     package.       The    purport of the said arrangement                       is<\/p>\n
     that    the    relief      of    setting aside           of     order       of<\/p>\n
     dismissal<\/p>\n
                    is granted to the Petitioner only by way<\/p>\n
     of    indulgence,      having rendered long 34                  years       of<\/p>\n
     service      with    the Respondent Company.                  The      lower<\/p>\n
     Court    has    found that setting aside the                    order       of<\/p>\n
     dismissal      and instead, directing reinstatement                         of<\/p>\n
     the    Petitioner      with      deprival of back             wages        and<\/p>\n
     continuity      of    service        would    meet       the      ends      of<\/p>\n
     justice.       Insofar as that view taken by the Labour<\/p>\n
     Court    is    concerned,        I     have     no     difficulty           in<\/p>\n
     accepting      it as it is.          For, having regard to                 the<\/p>\n
     proved    indisciplined          behaviour          and      of     riotous<\/p>\n
     behaviour      of    the Petitioner, that too,                  with       the<\/p>\n
     Director       of     the           Respondent         Company,            who<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                  :    39    :\n<\/p>\n
     incidentally      happens to be the son of the                   founder<\/p>\n
     of    the Company, any punishment less than dismissal<\/p>\n
     would be inappropriate.          In other words, the Labour<\/p>\n
     Court     has    already    shown       indulgence             to       the<\/p>\n
     Petitioner      by setting-aside the order of dismissal<\/p>\n
     and     instead,      ordering        reinstatement            of       the<\/p>\n
     Petitioner      without    back wages and           continuity           of<\/p>\n
     service.       That is a “lesser punishment” awarded to<\/p>\n
     the Petitioner.\n<\/p>\n
     25.        To get over this position, Counsel for the<\/p>\n
     Petitioner<\/p>\n
                     would argue that as per the                provisions<\/p>\n
     of    Standing    Order    No.25       of    Bombay        Industrial<\/p>\n
     Employment (Standing Orders) Rules, 1959, a workman<\/p>\n
     guilty    of    misconduct      may     be.-      (a)      warned        or<\/p>\n
     censured, or (b) fined subject to and in accordance<\/p>\n
     with    the    provisions of the Payment of Wages                     Act,<\/p>\n
     1936,    or    (c)   suspended by an         order        in     writing<\/p>\n
     signed    by    the Manager for a period not                 exceeding<\/p>\n
     four    days, or (d) dismissed without notice.                      It is<\/p>\n
     argued    that    the punishment imposed by the                   Labour<\/p>\n
     Court    is not provided for in the said regime.                        The<\/p>\n
     argument      though attractive, is inviting the                    Court<\/p>\n
     to    hold that the order passed by the Labour                      Court<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                    :    40    :\n<\/p>\n
     is not consistent with the provisions of the extant<\/p>\n
     Regulations.         If   that contention is accepted,                     it<\/p>\n
     would    result in setting aside of the order                       passed<\/p>\n
     by    the   Labour     Court which        inevitably           would       be<\/p>\n
     restoring      the    order passed by the             Management           of<\/p>\n
     dismissal       from      service.           The    punishment             of<\/p>\n
     dismissal      of service could be invoked in terms                        of<\/p>\n
     Standing       Order      No.24      in        case         of      wilful<\/p>\n
     insubordination        or   disobedience,           wilful         slowing<\/p>\n
     down    in performance of work, commission of any act<\/p>\n
     subversive      of discipline or good behaviour on                        the<\/p>\n
     premises<\/p>\n
                   of the establishment and also for refusal<\/p>\n
     to    accept    a charge-sheet.          We are       not      concerned<\/p>\n
     with    the    last    item    of    refusal        to      accept        the<\/p>\n
     charge-sheet nor it is necessary to address whether<\/p>\n
     the     act    of    commission         and    omission          of       the<\/p>\n
     Petitioner      resulted      in    wilful       slowing         down      in<\/p>\n
     performance      of the work.        However, the wilful acts<\/p>\n
     of    commission and omission of the Petitioner which<\/p>\n
     have    been    proved,     were clearly           covered         by     the<\/p>\n
     wilful disobedience and of subversive of discipline<\/p>\n
     or good behaviour of the Petitioner on the premises<\/p>\n
     on the establishment.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span><\/p>\n
                                      :    41    :\n\n\n\n     26.          It    was    then argued that behaving                  rudely\n\n     does    not    result      in    any      employment         misconduct.\n\n     However,      in the fact situation of the present case\n\n\n\n\n                                                                             \n     and    in    the    light of Standing Order                No.24,        this\n\n\n\n\n                                                    \n     argument      is devoid of merits.             Be that as it             may,\n\n     the    question      is:     in the fact situation                  of     the\n\n     present      case,    whether deprival of              Petitioner           of\n\n\n\n\n                                                   \n     back    wages with continuity of service can be                          said\n\n     to    be    shockingly disproportionate.                   As     observed\n\n\n\n\n                                        \n     earlier,      the    Labour      Court      has     in     fact      showed\n\n     indulgence        to the Petitioner.           That finding            would\n\n     run    counter\n                       \n                         to    the    claim      that     the      punishment\n\n     ordered       by    the    Labour         Court      is       shockingly\n                      \n     disproportionate.           In      my opinion, therefore,                 the\n\n     order      passed    by the Labour Court of denying                      back\n\n     wages      and continuity of service to the                   Petitioner\n      \n\n\n     is    just    and proper in the fact situation                      of     the\n   \n\n\n\n     present      case.    The argument of the Petitioner that\n\n     such    punishment        cannot be imposed, as it                  is     not\n\n\n\n\n\n     embodied      in the Standing Order No.25 will have                         to\n\n     be stated to be rejected.              Inasmuch as, the purport\n\n     of    Section      11-A of the Industrial              Disputes          Act,\n\n\n\n\n\n     1947,      empowers the Tribunal to order reinstatement\n\n     of    the workman on such terms and conditions as                           it\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:24:12 :::<\/span>\n                                     :    42   :\n\n\n\n<\/pre>\n
     thinks fit, in the event the order of dismissal was<\/p>\n
     to    be    set-aside.        The said       provision         expressly<\/p>\n
     provides        that    it is open to the Tribunal to                   give<\/p>\n
     such    other      relief     to the workman          including           the<\/p>\n
     award      of    any    “lesser      punishment”          in     lieu      of<\/p>\n
     discharge        or dismissal as the circumstance of                      the<\/p>\n
     case    may require.         In that sense, it is not a case<\/p>\n
     of    lack      of authority in the Labour Court to                     have<\/p>\n
     modified        the    punishment from dismissal to one                    of<\/p>\n
     reinstatement          without back wages and continuity of<\/p>\n
     service.        Moreover, it is well established position<\/p>\n
     that    relief
\n                       ig  of   back    wages is      not      a    necessary<\/p>\n
     corollary        to    the order of reinstatement.                  It     is<\/p>\n
     open    to the Court to either grant full back                        wages<\/p>\n
     or    slice      of    a   part thereof to be           paid       to     the<\/p>\n
     workman      when the workman is not wholly                   blameless.\n<\/p>\n
     In    the    present       case,    the finding         of     guilt       is<\/p>\n
     recorded against the Petitioner and the charge is a<\/p>\n
     serious      one.       In such a case, non grant                of     back<\/p>\n
     wages or continuity of service cannot be said to be<\/p>\n
     shockingly disproportionate or impermissible.<\/p>\n
\n\n\n\n\n\n     27.          Counsel       for the Petitioner, however,                   has\n\n     placed      reliance on the decision of the Apex                      Court\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 14:24:12 :::<\/span>\n                                       :    43     :\n\n\n\n     in     the    case       of    Fakirbhai         Fulabhai        Solanki        v.\n\n     Presiding       Officer, I.T.          Gujarat & Ors.<\/a>                 reported\n\n     in     1986    (52) F.L.R.           (S.C.) 688 to           contend          that\n\n\n\n\n                                                                                 \n     principle       analogous        to    the       exposition           in     this\n\n\n\n\n                                                       \n     decision       be     applied to the fact situation of                         the\n\n     present       case.       In that case, the observations have\n\n     been     made       in    the context        of     proceedings              under\n\n\n\n\n                                                      \n     Section       33     of the Industrial Disputes                     Act.       The\n\n     question is:          whether the principle relevant to the\n\n\n\n\n                                         \n     said     procedure         can   be applied to             enquiry           under\n\n     Section       10     of the Industrial Disputes Act.                         This\n\n     argument\n                        \n                    has already been considered and                        rejected\n\n<\/pre>\n
     as is noted by our High Court in the case of Bharat<\/p>\n
     Petroleum       Corporation          Ltd.     v.        Ramnath         Jagdish<\/p>\n
     Tiwari       & Anr.<\/a>       reported in 1995(2) Bom.C.R.                       438.\n<\/p>\n
     In    the     said       decision,     after        referring           to     the<\/p>\n
     exposition in the case of Ahmedmiya Ahmedji v.                                 The<\/p>\n
     Indian       Hume     Pipe     Co.Ltd.       &    Ors.<\/a>         reported         in<\/p>\n
     1994(2)       C.L.R.          206, in Paragraph 21,                 the      Court<\/p>\n
     proceeded       to       observe that the order                of     approval<\/p>\n
     always       relates back to the date of order passed by<\/p>\n
     the     Management.            The    same        principle           is       not<\/p>\n
     necessarily applicable to a case where reference is<\/p>\n
     made    under       Section      10(1)(c)         of     the      Industrial<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                      :    44    :\n<\/p>\n
     Disputes      Act unless it is held that no enquiry                         is<\/p>\n
     held by the Management or that the impugned enquiry<\/p>\n
     was    held    in    violation of principles                 of     natural<\/p>\n
     justice.      Accordingly, the claim of full back wages<\/p>\n
     and continuity of service of the Petitioner inspite<\/p>\n
     of    the    finding      with regard to          the      two      charges<\/p>\n
     proved      against      the Petitioner is a tall claim                     of<\/p>\n
     the Petitioner in the fact situation of the present<\/p>\n
     case.    That cannot be countenanced.\n<\/p>\n
     28.          That    takes      me    to the argument             that      on<\/p>\n
     reading<\/p>\n
                  clauses      6    to 8 of the        award,        it     would<\/p>\n
     appear      the    the    same are contradictory.                   In     any<\/p>\n
     case,    it    results        in deprivation         of      legal       dues<\/p>\n
     available      to    the Petitioner after 21st                  May      1994<\/p>\n
     though      order    of reinstatement is passed                   and      the<\/p>\n
     Petitioner        would    have      remained        in      service        on<\/p>\n
     account      of such order till he attained the date of<\/p>\n
     superannuation.           This      argument, I would             consider<\/p>\n
     along    with the argument of the Petitioner that the<\/p>\n
     Petitioner        in any case was entitled for his                     legal<\/p>\n
     dues    towards      subsistence          allowance in          terms       of<\/p>\n
     standing order 25 (5-A) which reads thus:\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span><\/p>\n
                                   :   45   :\n<\/p><\/blockquote>\n
                 “(5-A) Subject to the provisions of the
\n                 Payment of Wages Act, 1936 a workman who
\n                 is   placed     under   suspension   under
\n                 sub-clause (5) shall, during the period of<\/p>\n
                 such suspension, be paid a subsistence
\n                 allowance at the following rates, be paid
\n                 a subsistence allowance at the following<\/p>\n
                 rates, namely:-\n<\/p><\/blockquote>\n
                 (i) For the first ninety days of the
\n                 suspension period subsistence allowance to
\n                 be paid per month shall be equal to one<\/p>\n
                 half of basic wages, dearness allowance
\n                 and other compensatory allowance to which
\n                 the workman would have been entitled if he
\n                 were to leave with wages.\n<\/p><\/blockquote>\n
                 (ii) If the enquiry gets prolonged and the
\n                 workman continues to be under suspension
\n                 for a period exceeding ninety days, the<\/p>\n
                 subsistence allowance to be paid per month
\n                 for a further period of ninety days shall
\n                 be equal to three fourths of such basic
\n                 wages,   dearness allowance    and   other<\/p>\n
                 compensatory allowances.”\n<\/p><\/blockquote>\n
     29.         Indeed,    the    Petitioner did not             ask      for<\/p>\n
     relief of subsistence allowance during the pendency<\/p>\n
     of    the proceedings before the lower Court nor                      has<\/p>\n
     that    ground   been specifically taken in                the      Writ<\/p>\n
     Petition as filed before this Court.                Nevertheless,<\/p>\n
     it    is   a pure question of law which             is     canvassed<\/p>\n
     before     this Court.     The question is:           whether         the<\/p>\n
     Petitioner     can    be   deprived of       even       subsistence<\/p>\n
     allowance     which is his statutory right on                  account<\/p>\n
     of    Standing   Order No.25 (5-A) referred to                  above.\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span><\/p>\n
                                      :    46   :\n\n\n\n     To    consider      this aspect, it would be apposite                      to\n\n     advert      to    the    exposition in the case              of     Bharat\n\n     Petroleum         Corporation Ltd.        (supra).        At least two\n\n\n\n\n                                                                           \n     legal      statements      of law can be deduced from                   this\n\n\n\n\n                                                   \n     decision.         Firstly, the extent of back wages to be\n\n     paid    to workmen are dependent on variable                       factors\n\n<\/pre>\n
     on a complex of circumstances and the imputation of<\/p>\n
     moral      turpitude,      etc.      is of great importance                in<\/p>\n
     the     application        of       principle.        Secondly,           the<\/p>\n
     employee is entitled for subsistence allowance till<\/p>\n
     the    order of dismissal is passed against him                         were<\/p>\n
     to    be<\/p>\n
                 confirmed by the Court unless it                   is     shown<\/p>\n
     that    it is the workman who was at fault which                          led<\/p>\n
     to the delay in the decision or enquiry.                       In such a<\/p>\n
     case,      the theory of relation-back will apply.                         On<\/p>\n
     the    other      hand,    if it is to be          found       that       the<\/p>\n
     Management        is    not at all to be blamed,               then       the<\/p>\n
     theory      of relation-back will apply, in which case,<\/p>\n
     the date of dismissal will be the date on which the<\/p>\n
     order      was passed by the Management.                This decision<\/p>\n
     in    principle        proceeds to uphold the right of                    the<\/p>\n
     employee      workmen      to       get   subsistence          allowance<\/p>\n
     during      the    pendency      of    the    enquiry        until        the<\/p>\n
     passing      of the order of dismissal;               and the theory<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                        :    47     :\n<\/p>\n
     of     relation-back was to be applied in a given case<\/p>\n
     dependent       on the fact as to whether the management<\/p>\n
     or     the workmen was at fault.                  It will be useful to<\/p>\n
     refer to the decision of the Apex Court in the case<\/p>\n
     of Ram Lakhan & Ors.              vs.    Presiding Officer & Ors.<\/a>\n<\/p>\n
     reported       in     (2000) 10 SCC 201 (paras 18                        and      19)<\/p>\n
     which    restates       the legal position that it is                             the<\/p>\n
     right     of     the    employee            to     claim            subsistence<\/p>\n
     allowance       for    the     relevant           period.            (Also        see<\/p>\n
     B.D.Shetty       &     Ors.    vs.      Ceat Ltd.             & Ors.<\/a>        –     AIR<\/p>\n
     2001     SC 2953).          In other words, the Petitioner                         is<\/p>\n
     entitled       to
\n                      ig   his    statutory claim                of      legal       dues<\/p>\n
     emanating        from       provisions           of        Standing           Order<\/p>\n
     No.25(5-A)       after he was suspended.                      The      provision<\/p>\n
     is peremptory one requiring the employer to provide<\/p>\n
     subsistence         allowance         to the workmen                during        the<\/p>\n
     relevant       period unless it was to be found that                               it<\/p>\n
     is   the workman who was at fault in postponing                                   the<\/p>\n
     enquiry     or the proceedings.                  In the present               case,<\/p>\n
     after     the    order       of   suspension               was      passed,        no<\/p>\n
     subsistence           allowance         was            offered           to       the<\/p>\n
     Petitioner.            No    grievance           was        made         by       the<\/p>\n
     Petitioner       at any time in this behalf.                         Eventually<\/p>\n
     he      came    to     be     dismissed           by       the       Respondent<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                    :    48    :\n<\/p>\n
     Management      by    order dated 21st May 1994.                    It     is<\/p>\n
     noticed    that      after    the order        of     dismissal           was<\/p>\n
     passed, the Petitioner did not pursue proper remedy<\/p>\n
     so    as to invite reference under Section 10 of                          the<\/p>\n
     Act.     Instead,      the    Petitioner           resorted         to       a<\/p>\n
     complaint      under    provisions of M.R.T.U &                  P.U.L.P.\n<\/p>\n
     Act     which    was    eventually           dismissed           as       the<\/p>\n
     Industrial      Court      had    no jurisdiction.               In     that<\/p>\n
     sense,    the    Management        cannot be blamed.                It     is<\/p>\n
     failure    of    the    Petitioner to          take       recourse         to<\/p>\n
     proper    and    correct legal remedy.              The mistake            in<\/p>\n
     adopting<\/p>\n
                    wrong       remedy       cannot      extricate             the<\/p>\n
     Petitioner       of     the        said       obligation.               Thus<\/p>\n
     understood,          for      non        initiating            reference<\/p>\n
     proceedings under Section 10 by the Petitioner till<\/p>\n
     13th    May    1998 inspite of the order                of     dismissal<\/p>\n
     dated    21st    May 1994, the Petitioner will have                        to<\/p>\n
     blame    himself.       For that reason,            the      Petitioner<\/p>\n
     would not be entitled for any relief of subsistence<\/p>\n
     allowance during the period from 21st May 1994 till<\/p>\n
     13th    May    1998.    However, the Petitioner would                      be<\/p>\n
     entitled      for subsistence allowance for the                     period<\/p>\n
     from    the    date    of    suspension till            the      date      of<\/p>\n
     dismissal      i.e.    21st May 1994 and thereafter                     from<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                                    :    49    :\n<\/p>\n
     the    date    of    application to the           Commissioner            of<\/p>\n
     Labour    (which      was received in the Office                  of     the<\/p>\n
     Commissioner        of Labour on 13th May 1998) till                     the<\/p>\n
     date    of    his    superannuation.         The     Petitioner           is<\/p>\n
     entitled      for    this limited relief on              the      finding<\/p>\n
     that    the theory of relation-back will not apply in<\/p>\n
     the    present      case    having regard         to     the      finding<\/p>\n
     recorded by the Labour Court in Para I of the Award<\/p>\n
     that     the    enquiry      was     held     in     violation            of<\/p>\n
     principles of natural justice and which finding has<\/p>\n
     been    already      upheld by this Court.             On     attaining<\/p>\n
     finality<\/p>\n
                   of the said finding, it would necessarily<\/p>\n
     follow    that the order of dismissal dated 21st                         May<\/p>\n
     1994    was    void    and    did not exist          in     law.         The<\/p>\n
     Tribunal      could not have for the first time                    passed<\/p>\n
     an order recording a finding of misconduct and thus<\/p>\n
     breath    life into the dead shell of the                   Management<\/p>\n
     order    for want of enquiry or for blatant violation<\/p>\n
     of    rules of natural justice as is observed by                         our<\/p>\n
     Court     in     the        case        of    Bharat           Petroleum<\/p>\n
     Corpn.Ltd.(supra) (see Para 26).                Accordingly, this<\/p>\n
     Petition succeeds only to the limited extent as<\/p>\n
     mentioned      above,      for which reason, I             proceed        to<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:24:12 :::<\/span>
\n                               :   50    :\n<\/p>\n
     pass the following order :\n<\/p>\n
              1.            The    Writ         Petition           partly<\/p>\n
              succeeds with no order as to costs.\n<\/p>\n
              2.            Clause     7    of the       Award       dated\n\n\n\n\n                                            \n              30th   November 2004 below Reference                   (IDA)\n\n              No.238   of    1994 shall stand            modified         to\n\n\n\n\n                                 \n              read   that the Petitioner is entitled                     for\n\n              \"subsistence     allowance\"         for      the     period\n\n              during\n                    ig the    date of order          of     suspension\n\n<\/pre>\n
              till   the date of order of dismissal (i.e.\n<\/p>\n
              21st May 1994) and for further period from<\/p>\n
              13th   May    1998 when the         Application            for<\/p>\n
              making   reference       to the Commissioner                of<\/p>\n
              Labour was made till the date of his super<\/p>\n
              annuation,     in   terms      of    Standing          Order<\/p>\n
              No.25(5-A).\n<\/p>\n
     .        Ordered accordingly.\n\n\n\n\n\n                                            A.M.KHANWILKAR, J.\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 14:24:12 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mr.Daman Chetandas Meghani vs M\/S.Moulds & Dies Pvt.Ltd on 12 March, 2009 Bench: A.M. Khanwilkar 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-213940","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMr.Daman Chetandas Meghani vs M\/S.Moulds & Dies Pvt.Ltd on 12 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-daman-chetandas-meghani-vs-ms-moulds-dies-pvt-ltd-on-12-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr.Daman Chetandas Meghani vs M\/S.Moulds & Dies Pvt.Ltd on 12 March, 2009 - 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