ABDUL KARIM Vs. CIMCOFF DISTRIBUTORS & ANR

JUDGEMENT

(1.) Writ Petition No. 3968 of 1992. The petitioner is aggrieved by the award of the labour court passed on 10th Jan. 1993 reinstating him in the post of salesman with backwages at Rs. 150.00 per month from 10th May 1988 till the date of reinstatement and give him continuity of service and also other benefits. By the said award, the petitioner was directed to report for duty at the office of the employer by 20th Jan. 1993 at the latest. The employer was also warned of the consequences if he was not to reinstate the petitioner workman by 20th Jan. 1993. The labour court had directed that in case of failure on the part of the employer to reinstate the workman as aforesaid, the employer should pay him backwages at the rate of Rs. 800 per month from 21st Jan. 1993 till his future date of reinstatement. The employer was also allowed to deduct the loss of Rs. 350.00 occasioned to him at the hands of the workman on 6th May 1988. I am informed across the bar by both the learned Advocates that the petitioner was reinstated in employment with effect from 1st Sept. 1995 and he is still working. It appears that the petitioner had filed a complaint of unfair labour practice before the industrial court, making a grievance under Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971 (hereinafter referred to as M.R.T.U. Act) that the respondent employer had not implemented the said award. According to the petitioner, he had reported for work but he was not allowed to join his duties and that he was humiliated and, therefore, he was compelled to filed the aforesaid complaint. I will deal with this aspect little later.

(2.) Before the Labour Court it was the grievance of the petitioner that he was terminated from employment illegally and improperly. No charge sheet was given to him nor was any domestic enquiry held against him. It appears that the petitioner being a salesman was accountable for the sales proceeds and the balance of the stock to be returned to the employer at the end of the day. He was working as salesman and he was required to move in the market and sell the goods along with a cartman. It appears that on one day there was shortage of Rs. 350.00 in the goods which the employer called upon the petitioner to made good. It appears that the petitioner shifted the blame for the said shortfall on the cartman. According to the petitioner, he was not responsible for the said loss but the employer had orally terminated his employment on and from 7th May 1988. The petitioner had reported for the work on the next two days but he was not allowed to join his duties. The petitioner challenged the said oral order of termination by raising industrial dispute which was finally referred for adjudication to the labour court under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act). Both the parties appeared before the Labour Court and filed their pleadings and adduced oral and documentary evidence. On going through the pleadings and evidence, the labour court held that the petitioner was illegally terminated from employment on 10th May 1988 and that the petitioner had not voluntarily left the employment as contended by the employer. The labour court finally held that the workman was entitled to get reinstatement. The labour court, however, considering the behaviour and the acts of the petitioner moulded the relief of backwages i.e. instead of granting him full backwages, the labour court considered the totality of the circumstances, and awarded Rs. 150.00 per month towards backwages from 10th May 1988 till reinstatement. The labour court had taken a view that the petitioner was legally answerable as a salesman for any shortage of the goods at the end of the day. The labour court had accepted the stand taken by the employer and, therefore, held the Current Labour Rcoorts - MAY. 2002 - 150 action of the employer as justified in calling upon the petitioner to make good the short of Rs. 350.00. The labour court has also considered another aspect of the matter that on account of shortage, the petitioner was offered another duty, but the petitioner refused to accept any other work. It was the case of the petitioner that he was not legally bound to do any other work except the work of salesman. The petitioner further appears to have challenged the employer to take suitable legal action by issuing charge sheet for the alleged shortage of the goods and start domestic enquiry and then terminate him from employment. It appears from the duscussion of the labour court that the petitioner workman insisted on the duties of salesman while the employer insisted on the petitioner workman to make good the shortage as a condition for continuing in the duty. It further appears that the employer was prepared to offer him another work but the workman insisted to do the work of salesman and no other work. In the aforesaid circumstances, the labour court has granted reinstatement with continuity of service to the petitioner. The labour court has after considering the aforesaid facts moulded the relief of backwages at the rate of Rs. 150.00 per month for the intervening period. I am not able to find any illegality, impropriety or infirmity in the aforesaid award of the labour court under Art. 226 of the Constitution of India. The labour court has considered all the aspects of the matter which I have narrated hereinabove. There was no dispute about the shortage of the goods to the tune of Rs. 350.00. The petitioner salesman put the blame on the cartman while the employer held the petitioner as a salesman, responsible for the shortage. According to me, the employer was right in holding the petitioner responsible as a salesman, since the goods were entrusted to the petitioner and not to the cartman. The employer provided the cartman only to facilitate the petitioner to carry the goods. It is the whole responsibility of the petitioner to have guarded the goods and if there was any shortage it was the petitioner who was responsible for the same and the labour court has rightly concluded that it was the responsibility of the petitioner and he was bound to make good the said loss. The labour court has rightly upheld the contention of the employer that the petitioner ought to have made good the loss.

(3.) The next aspect which the labour court has rightly considered was that the employer had offered another work to the petitioner but the petitioner insisted that he would not do any other work except the work of sales- man. It appears that the petitioner must have left in huff by refusing to do any other work except the work of salesman and the employer perhaps thought that the petitioner had left and the employer was relieved of the trouble. The labour court has considered that the termination of the petitioner was not justified but the petitioner was also guilty of shortage of Rs_ 350.00 worth of material. The employer ought to have held an enquiry and thereafter ought to have punished him suitably. The labour court has granted reinstatement on the ground that no such action was taken by the employer as required by the law. The labour court has in the aforesaid circumstances, granted reinstatement and backwages at the rate of Rs. 150.00 per month. According to me, the labour court has rightly balanced the scale of justice. It is communicated to the employer by the Labour Court that the action should be in accordance with law at the same time it has also conveyed to the erring petitioner that he should know his responsibilities and he should not behave in the manner in which he behaved. The labour court has taken a sympathetic view towards the petitioner workman and has awarded Rs. 150.00 p.m. as backwages. The labour court has in his discretion under section 11 A of the I.D. Act has rightly passed the award with which I do not find any illegality or infirmity to interfere.