{"id":230575,"date":"2009-11-09T00:00:00","date_gmt":"2009-11-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-tata-power-company-ltd-vs-s-m-harke-ors-on-9-november-2009"},"modified":"2019-02-25T17:35:37","modified_gmt":"2019-02-25T12:05:37","slug":"the-tata-power-company-ltd-vs-s-m-harke-ors-on-9-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-tata-power-company-ltd-vs-s-m-harke-ors-on-9-november-2009","title":{"rendered":"The Tata Power Company Ltd vs S. M. Harke & Ors on 9 November, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
The Tata Power Company Ltd vs S. M. Harke & Ors on 9 November, 2009<\/div>\n
Bench: Dr. D.Y. Chandrachud<\/div>\n
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                   ORDINARY ORIGINAL CIVIL JURISDICTION\n\n                        WRIT PETITION NO.1996 OF 2009\n\n\n\n\n                                                                                  \nThe TATA Power Company Ltd.                                    ..Petitioners\n\n\n\n\n                                                          \n      Vs.\nS. M. Harke  & Ors                                             ..Respondents\n\n                                    AND\n\n\n\n\n                                                         \n                        WRIT PETITION NO.1997 OF 2009\n\nThe TATA Power Company Ltd.                                    ..Petitioners\n     Vs.\n\n\n\n\n                                             \nKishor Salvi  & Ors                                            ..Respondents\n                                ig  AND\n                        WRIT PETITION NO.1998 OF 2009\n                              \nThe TATA Power Company Ltd.                                    ..Petitioners\n      Vs.\nA. N. Bhoir  & Ors                                             ..Respondents\n                                    AND\n            \n\n                        WRIT PETITION NO.1999 OF 2009\n         \n\n\n\nThe TATA Power Company Ltd.                                    ..Petitioners\n      Vs.\nS. R. Gharat  & Ors                                            ..Respondents\n\n\n\n\n\nMr. K. M. Naik with Mr. S. P. Salkar for the Petitioner\n\nMs. Rita K. Joshi for the Respondents\n\n                                     CORAM: DR. D.Y. CHANDRACHUD, J. \n<\/pre>\n
                                    DATE:  9th November ,  2009<\/p>\n
Oral Judgment :\n<\/p>\n
    1.   This batch of Writ Petitions before the Court raises a similar issue and <\/p>\n
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\n          has been heard together. Counsel state that the facts relating to all the <\/p>\n
         cases are similar. Rule, With the consent of the Counsel, the Petitions are <\/p>\n
         taken up for final hearing. Learned Counsel for the Respondents waives <\/p>\n
         service. <\/p>\n
    2.   The Respondent workmen were employed as Senior Security Guards in <\/p>\n
         the Security Department at the Trombay Thermal Power Station. The <\/p>\n
         Petitioner   supplies   electric   power   to   vital   installations   in   the   City   of <\/p>\n
         Mumbai   including   the   Railways,   Air   Force,   Hospitals,   BARC,   Oil <\/p>\n
         Refineries and Defence establishments. All the workmen were on duty <\/p>\n
         on 31st December 1999 in the general shift from 0730 hrs to 1630 hrs. <\/p>\n
         At about 1315 hrs., the workmen were found to have consumed liquor <\/p>\n
         alongwith   three   other   workmen   in   the   Security   Guards’   locker   Room <\/p>\n
         near the main gate of the Power House at the Trombay Thermal Power <\/p>\n
         Station. The case of the management is that the workmen were caught <\/p>\n
         red handed by Mr. P.B. Palekar (DGM) and Mr. D.G.Mehra (VP), while <\/p>\n
         consuming   beer   together   with   three   other   employees.   The   workmen <\/p>\n
         were suspended. A departmental inquiry was conducted on allegations <\/p>\n
         of misconduct, contained in a charge sheet dated 6th January 2000. All <\/p>\n
         the employees, it has been conceded before the Court by Counsel for the <\/p>\n
         workmen,   admitted   the   charge   of   misconduct.   The   inquiry   officer <\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 15:17:35 :::<\/span>
\n          submitted his report on 8th February 2000, holding the workmen guilty <\/p>\n
         of misconduct. The workman in Writ Petition No.1997 of 1999 was on <\/p>\n
         privilege leave from 21st December 1999 to 31st December 1999 and on <\/p>\n
         the date of the incident had entered the premises, when he was found to <\/p>\n
         be   consuming   liquor.   Upon   the   conclusion   of   the   inquiry   and   in <\/p>\n
         pursuance of the opportunity granted to them, the workmen submitted <\/p>\n
         their   explanations.   A   second   show   cause   notice   was   issued   by   the <\/p>\n
         Management   calling   upon   the   workmen   to   explain   as   to   why   they <\/p>\n
         should   not   be   dismissed   from   service.     The   Workmen   came   to   be <\/p>\n
         dismissed   from   service   on   20th  May   2000.   The   Workmen   filed <\/p>\n
         application under Sections 78 and 79 of Bombay Industrial Relations Act <\/p>\n
         1946 before the Labour Court.\n<\/p><\/blockquote>\n
    3.   The Labour Court by its Part I Award dated 23rd June 2006 held that the <\/p>\n
         inquiry was fair and proper. However, by its Part II Award dated 30th <\/p>\n
         April   2008,   the   Labour   Court   allowed   the   Application   by   granting <\/p>\n
         reinstatement with 25% back wages. Cross Appeals were filed by the <\/p>\n
         Management   and   by   the   Workmen.   The   Industrial   Court   allowed   the <\/p>\n
         Appeal filed by the employer in part by setting aside the direction for <\/p>\n
         the payment of back wages. The order of reinstatement was confirmed.\n<\/p><\/blockquote>\n
                                                             ::: Downloaded on – 09\/06\/2013 15:17:35 :::<\/span><\/p>\n
     4.   Counsel   appearing   on   behalf   of   the   Petitioners   has   urged   that,   the <\/p>\n
         misconduct which is allegedly to have been committed by the workmen <\/p>\n
         is   of   a   grave   and   serious   nature.   The   workmen   were   found   to   have <\/p>\n
         consumed   liquor   in   the   premises   of   the   establishment   and   the <\/p>\n
         misconduct was duly found to be established, under clause 32(10) of <\/p>\n
         the   Standing   Order.   It   was   urged   that,   both   the   Labour   Court   and <\/p>\n
         Industrial   Court   manifestly   exceeded   jurisdiction   in   holding   that   the <\/p>\n
         action  of  the  management  was  discriminatory.  All the  four workmen, <\/p>\n
         who   are   the   subject   matter   of   these   proceedings   were   employed   as <\/p>\n
         Senior   Security   Guards.   The   three   other   employees,   who   were   also <\/p>\n
         found to have consumed liquor in the premises, comprised of one Driver <\/p>\n
         and   two   operators.   The   representative   Union   under   the   Bombay <\/p>\n
         Industrial   Relations   Act   1946,   had   espoused   the   case   of   those   three <\/p>\n
         workmen and a settlement was arrived at with the representative union <\/p>\n
         on   16th  February   2001,   by   which,   the   three   other   workmen   were <\/p>\n
         suspended   by   way   of   punishment   for   four   days.   However,   the <\/p>\n
         management   was   justified   in   taking   a   strict   view   in   regard   to   the <\/p>\n
         conduct   of   the   four   workmen   in   question,   since   they   were   security <\/p>\n
         guards   entrusted   with   duties   of   maintaining   vigil   over   a   sensitive <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 15:17:35 :::<\/span>
\n          installation. It was  urged that, the security guards fall into  a distinct <\/p>\n
         class  and the Management had not acted discriminatorily.\n<\/p><\/blockquote>\n
    5.   On the other hand, it was urged on behalf of the Respondent workmen <\/p>\n
         that consumption of alcohol in the premises of the establishment would <\/p>\n
         amount  to  a  misconduct  by  whichever employee  it  is committed and <\/p>\n
         that   there   was   no   justification   for   the   management   to   distinguish <\/p>\n
         between   security   guards   on   the   one   hand   and   the   driver   and   the <\/p>\n
         operators on the other hand. Counsel submitted that, the action of the <\/p>\n
         management was discriminatory. The workmen have suffered for over <\/p>\n
         nine   years   and,   it   was   urged,   the   grant   of   reinstatement   with   back <\/p>\n
         wages would be in the interests of justice.\n<\/p><\/blockquote>\n
    6.   In considering the merits of the rival submissions, it must be noted, at <\/p>\n
         the outset, that it is an admitted position before the Court that all the <\/p>\n
         workmen   in question had admitted to having consumed liquor in the <\/p>\n
         premises of the establishment. Three of the workmen were actually on <\/p>\n
         duty,   while   one   of   them   (   the   workman   in   Writ   Petition   No.1997   of <\/p>\n
         1999) was on privilege leave, but had come to the premises on the date <\/p>\n
         of the incident. All the workmen were senior security guards and the <\/p>\n
         charge of the misconduct which is found to be established is that, they <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 15:17:35 :::<\/span>
\n          had consumed liquor at the work place.\n<\/p><\/blockquote>\n
    7.   The Labour Court interfered with the punishment which was awarded <\/p>\n
         by the Petitioner with the following observations <\/p>\n
              “the so-called alleged incident has taken place on 31.12.99. This is <\/p>\n
              the last day of the year. Seven persons were found eating food in <\/p>\n
              the security guard room. They might have taken beer at the time <\/p>\n
              of eating or they might have taken some alcohol at the time of <\/p>\n
              eating the food. There is no evidence on record to show that all <\/p>\n
              the   persons   were   found   misbehaving   under   the   influence   of <\/p>\n
              alcohol. There were simply eating the food after taking alcohol or <\/p>\n
              beer. In my view this not a serious offence.”\n<\/p><\/blockquote>\n
    8.   The Industrial Court in the Appeal filed by the Workmen and by the <\/p>\n
         employer held thus:\n<\/p><\/blockquote>\n
              “The   concerned   employees   were   found   consuming   beer   in   the <\/p>\n
              security guards locker room near main gate of the power house.\n<\/p><\/blockquote>\n
              The charge sheet refers to liquor but undisputedly what as been <\/p>\n
              consumed was a beer. Out of four employees one was not on duty.\n<\/p><\/blockquote>\n
              The   concerned   employees   had   consumed   beer   but   there   is   no <\/p>\n
              allegation that they were under the influence of the liquor or beer.\n<\/p><\/blockquote>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:17:35 :::<\/span><\/p>\n
               No   other   act   or   misdeed   has   been   attributed   to   the   concerned <\/p>\n
              employees.   The   concerned   employees   were   permanent   workers <\/p>\n
              who had served for years. They might have been punished earlier <\/p>\n
              on   few   occasions   but   those   were   minor   punishments   for   some <\/p>\n
              lapses. Undisputedly, there was no major misconduct committed in <\/p>\n
              the past. It is true that security guard is not expected to drink and <\/p>\n
              work.   In   this   case   beer   was   drunk   not   only   by   the   concerned <\/p>\n
              employees but by four others also. Those others included a driver.\n<\/p><\/blockquote>\n
              The   company  has  continued  the   driver  in   service   inspite   of  the <\/p>\n
              allegations of drinking beer while on duty. For company such a <\/p>\n
              driver is acceptable but not the security guards. The driver and <\/p>\n
              two others are continuing in service and the concerned employees <\/p>\n
              are out of employment till the year 2000.  In my view a driver and <\/p>\n
              the  security  guards  deserved  to  be   treated  the   same  way  while <\/p>\n
              considering their case for continuation in service.”\n<\/p><\/blockquote>\n<\/blockquote>\n
    9.   There is merit in the submission which has been urged on behalf of the <\/p>\n
         Petitioner, that the reasons which have weighed with both the Courts <\/p>\n
         below suffer from a clear perversity. The Labour Court seems to suggest <\/p>\n
         that the consumption of liquor at the work place should be overlooked <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 15:17:35 :::<\/span>
\n     since this was the last day of the year and the workmen, though they <\/p>\n
    might have consumed Alcohol ” at the time of eating food” were not <\/p>\n
    found to be misbehaving. Consumption of alcohol at the work place by <\/p>\n
    the security guards in the present case was a serious act of misconduct <\/p>\n
    and the management was justified in taking a strict view of the matter.\n<\/p><\/blockquote>\n
    The   representative   Union   espoused   the   cause   of   three   of   the   seven <\/p>\n
    workmen who were found to have consumed alcohol on the date of the <\/p>\n
    incident and who were  not    security guards.  The three other workmen <\/p>\n
    consisted of one driver and two operators. If the representative Union <\/p>\n
    and the management arrived at a settlement by which, the three other <\/p>\n
    workmen were given punishment of suspension for four days that would <\/p>\n
    by itself not entitle the Respondent workmen to the benefit of the same <\/p>\n
    treatment. The Respondent workmen were senior security guards who <\/p>\n
    were   entrusted   with   the   duty   of   protecting   the   installation   and <\/p>\n
    maintaining   vigil.   The   installation   of   the   Trombay   Thermal   Power <\/p>\n
    Station is a vital installation in the city of Mumbai. The course of events <\/p>\n
    in the recent history of city require no elaborate line of reasoning for the <\/p>\n
    court to hold that the employer is justified in taking a serious view of  a <\/p>\n
    dereliction of duty by employees engaged to guard the establishment.\n<\/p><\/blockquote>\n
    The   Industrial   Court   noted   that   the   past   record   was   not   free   from <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:17:35 :::<\/span>
\n           blemish. The management has not acted discriminatorily in treating the <\/p>\n
          dereliction   of   duty   by   the   security   guards   strictly.   Those   employees <\/p>\n
          constituted a distinct class since they were specifically entrusted with <\/p>\n
          the duty of guarding the establishment.\n<\/p><\/blockquote>\n
    10.   In   these   circumstances,   both   the   courts   were   manifestly   in   error   in <\/p>\n
          finding fault with the management for having taken a serious view of <\/p>\n
          the conduct of the Respondent workmen and in dismissing them from <\/p>\n
          service. Having regard to the nature of the misconduct, the admission of <\/p>\n
          guilt and the past conduct, the imposition of the penalty of dismissal <\/p>\n
          ought   not   to   have   been   interfered   by   the   Labour   Court   and   by   the <\/p>\n
          Industrial Court. The grant of reinstatement was clearly not warranted.\n<\/p><\/blockquote>\n
    11.   In these circumstances, the petition would have to be allowed and is <\/p>\n
          accordingly allowed. Rule is made absolute in terms of prayer clause (a) <\/p>\n
          by setting aside the Judgment of the Industrial Court dated 7th  August <\/p>\n
          2009.\n<\/p><\/blockquote>\n
    12.   The Application filed by the Respondent workmen accordingly stands <\/p>\n
          dismissed.\n<\/p><\/blockquote>\n
    13.   No order as to costs.\n<\/p><\/blockquote>\n
                                                (Dr. D.Y.Chandrachud, J)<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:17:35 :::<\/span>\n <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The Tata Power Company Ltd vs S. M. Harke & Ors on 9 November, 2009 Bench: Dr. D.Y. Chandrachud IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1996 OF 2009 The TATA Power Company Ltd. ..Petitioners Vs. S. M. Harke & Ors ..Respondents AND WRIT PETITION […]<\/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-230575","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe Tata Power Company Ltd vs S. M. 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