RAMDAS BORKAR Vs. GOA SHIPYARD LTD.

JUDGEMENT

(1.) Heard Shri A.F. Diniz, learned Counsel appearing for the petitioner and Shri M.S. Bandodkar, learned Counsel appearing for the respondent No. 1. The above petition challenges the order 24/04/2003 and award dated 1/07/2003 passed 3 by the Industrial Tribunal at Panaji inter aha [holding that the action of the employer/the respondent No. 1 herein in terminating the service of their workman/petitioner herein with effect from 16/02/1984 is legal and justified.

(2.) Shri A.F. Diniz, learned Counsel appearing for the petitioner has assailed the impugned order on three counts. It is his first contention that the first order dated 24/04/2003 being the findings on the preliminary issues No. 1, 2 & 3 stand vitiated as according to him the inquiry which was conducted by the respondent No. 1 is in breach of the principles of natural justice. It is further the contention of the learned Counsel that the petitioner was not even offered liberty of engaging an authorized representative to defend the proceedings before the Inquiry Officer and, as such, he was not given an adequate opportunity to defend his case. The learned Counsel further pointed out that even in such proceedings the representative of the Respondent No. 1 was one Mr. Puti Gaonkar, who was also charge sheeted in the incident which was an offshoot of the incident wherein the petitioner was also charge sheeted. The learned Counsel further pointed out that the Inquiry Officer had recorded the deposition in English language when according to him the deposition was in Konkani language which was no known to the Inquiry Officer. The learned Counsel further pointed out that the said Mr. Puti Gaonkar had in fact acted on behalf of the respondent No. 1. The learned Counsel, as such, submits that this exercise on the part of the respondent No. 1 and Inquiry Officer vitiates the inquiry before the Inquiry Officer. The next contention of the learned Counsel appearing for the petitioner is that with regard to the same incident there were charge-sheets also filed against the said Puti Gaonkar and Sailesh Borkar, who had also assaulted the petitioner in the scuffle. The learned Counsel further pointed out that the charge-sheet against the said persons was also for assault and that the Inquiry Officer though found that they were guilty of such offences nevertheless the punishment inflicted on them was only of a warning. The learned Counsel further pointed out that in fact the petitioner was seriously injured and had to be immediately hospitalized on account of the assault. The learned Counsel further pointed out that as far as the petitioner is concerned, the punishment awarded was of dismissal/termination of his services whereas on the contrary said Mr. Puti Gaonkar is concerned a lenient view has been taken and the proceedings have been disposed of by only a warning. The next contention of the learned Counsel appearing for the petitioner is that the punishment which has been inflicted is shockingly disproportionate to the alleged misconduct of the petitioner. The learned Counsel further pointed out that there was union rivalry at the establishment which resulted in unfortunate incident and, as such, according to him inflicting punishment of dismissal has grossly affected and prejudiced the petitioner. The learned Counsel further pointed out that considering the other workers who had also assaulted the petitioner, were given a lenient view the question of inflicting the punishment of dismissal to the petitioner is not at all justified. The learned Counsel has taken me through the impugned award and pointed out that the learned Tribunal has not at all considered the said aspect by considering the well settled principles of law for considering such dispute and has erroneously come to the conclusion that the action taken by the respondent No. 1 is legal and justified. The learned Counsel further pointed out that the petitioner has been left only to fight a legal battle against the Respondent from the year 1984 on account of some flimsy charges levelled by the respondent No. 1 and, as such, the question of justifying the punishment awarded on the petitioner is wholly untenable. The learned Counsel has taken me through the impugned award as well as the material on record and pointed out that the inquiry proceedings itself are vitiated and the award is not at all legal. The learned Counsel further pointed out that considering that the petitioner had already attained the age of superannuation at least the respondent No. 1 would have considered to give compensation to the petitioner. The learned Counsel further pointed out that charge-sheet issued by the appellate authority against the petitioner has severely jeopardized the right of appeal of the petitioner as per the Rules. The learned Counsel as such submits that the impugned award deserves to be quashed and set aside.

(3.) On the other hand, Shri M.S. Bandodkar, learned Counsel appearing for the respondent No. 1 has supported the impugned award. The learned Counsel pointed out that the Tribunal on appreciating the evidence on record has come to the conclusion that the inquiry conducted by the respondent is fair and legal. The learned Counsel further pointed out that the Inquiry Officer was in fact examined before the Tribunal and he had categorically stated that he also understood Konkani language. The learned Counsel further pointed out that in fact the petitioner did not even raise such grievance before the Inquiry Officer. The learned Counsel further pointed out that the inquiry which has been conducted was in keeping with the well settled principles of natural justice and, as such, the question of raising such contention would not arise. The learned Counsel further pointed out that the petitioner did not even seek for appointment of an authorized representative to defend his case before the Inquiry Officer and, as such, the question of raising such contention before this Court is totally misplaced. The learned Counsel further pointed out that there is no illegality committed by the respondent No. 1 in the inquiry conducted with regard to the petitioner herein. The learned Counsel further pointed out that as far as the charge-sheet against the petitioner is concerned the previous records of the petitioner were not satisfactory and, as such, inflicting punishment of dismissal is justified. The learned Counsel further points out that the records as far as the other co-workers are concerned are satisfactory and as such submits that the respondents were justified to take a lenient view. The learned Counsel further pointed out that the petitioner in fact first assaulted one John Menezes who was a superior of the petitioner. The learned Counsel further pointed out that as the conduct of the other coworkers, was satisfactory the respondents were justified to take a lenient view as far as the co-workers are concerned. The learned Counsel has thereafter taken me through the impugned award and pointed out that the Tribunal has rightly appreciated the material on record and has come to the conclusion that the punishment inflicted on the petitioner is justifiable. The learned Counsel also submits that it is well settled by the Apex Court that this Court in a petition under Article 227 of the Constitution of India is not entitled to re-appreciate the material on record. The learned Counsel, as such, submits that considering the findings in the inquiry and the impugned award of the Tribunal this Court cannot re-appreciate the material to take a contrary view. The learned Counsel, as such, submits that the question of interfering in the findings of the Tribunal with regard to the misconduct committed by the petitioner is not at all permissible. With regard to the contention of Shri A.F. Diniz, learned Counsel appearing for the petitioner that punishment inflicted on the petitioner is grossly disproportionate to the alleged misconduct of the petitioner, Shri Bandodkar, learned Counsel pointed out that considering that the petitioner has been found to have assaulted a coworker in the establishment the question of interfering in the impugned award on that count would not arise. The learned Counsel further pointed out that the Tribunal has also considered that such dismissal has been awarded to the petitioner on account of his unsatisfactory past record. The learned Counsel further pointed out that it is not open for this Court under Article 227 of the Constitution of India to re-appreciate the said reasons and take a contrary view. The learned Counsel as such submits that there is no case made out for interference in the impugned award and as such above petition be rejected.