ZIAKH Vs. FIRESTONE TYRE AND RUBBER COMPANY LTD

JUDGEMENT

(1.) THIS is an appeal from an order of Mr. Justice Desai dismissing a petition for a writ of cirtiorari against the Labour Appellate Tribunal. The petitioner was an employee of the first respondent company. An appeal was pending in the Labour Appellate Tribunal in respect of certain disputes in which the petitioner was concerned and pending that appeal the first respondent wanted to dismiss, the appellant from its service. It thereupon applied to the Labour Appellate Tribunal under Section 22 of the Industrial Disputes (Appellate Tribunal) Act and the Tribunal gave permission to the first respondent company to dismiss the petitioner. On that the petitioner was dismissed from the service of the first respondent company. The petitioner has filed this petition challenging the order of the Labour Appellate Tribunal granting permission to the first respondent company to dismiss the petitioner from its service.

(2.) THE charge against the petitioner was that he wilfully slowed down the performance of his work and his work consisted in building tyres. The tribunal was satisfied that a proper inquiry had been held in respect of this charge, that misconduct had been proved and that the punishment intended to be mete out to the petitioner was a proper punishment in view of the seriousness of what the petitioner was alleged to have done. The petitioner is a piece-rated worker, which means that he is paid according to the work turned out by him, he is not a time-rated worker, which means that he is not paid irrespective of what he produces; and that is an important distinction which Mr. Chari on behalf of the petitioner has emphasized and his first contention is that a piece-rated worker can never be held to be guilty of Blowing down production. Standing orders have been framed by the first respondent company and they have been duly sanctioned by the labour authorities, and under standing Order 23 various acts and omissions are set out which constitute misconduct on the part of a worker, and Clause (c) of that standing order, provides "wilful slowing down in performance of work, or abetment, or instigation thereof," and the contention of Mr. Chari is that the nature of this misconduct is such that it can only apply to a time-rated worker and cannot possibly apply to a piece-rated worker. Mr. Chari says that when a man takes employment and, he is paid according to the work that he does, it is open to him to produce more and obtain better wages; it is equally open to him to produce less and obtain less wages. In the case of a time-rated worker he is said to devote a particular time to the service of his employer and therefore it is obligatory upon him to work with average speed and normal skill, and if he refuses to do so and slows down, his conduct would be prejudicial to the interest of the employer and he would be guilty of misconduct within the meaning of standing Order 23 (c ). In our opinion the contention of Mr. Chari is not tenable. In this particular case the petitioner has been employed to serve the first respondent company for a certain number of hours every day. We have been Informed that there are three shifts of eight hours each and the petitioner has got to work in one shift or other. Therefore the employer is entitled to eight hours' service from the petitioner. It must also be borne in mind that the petitioner is paid dearness allowance for the number of days that he works and that dearness allowance is irrespective of what work the petitioner turns out; Therefore, both in the case of a piece-rated worker and in the case of a time-rated worker, during the time that the employee has to work the employer is entitled to expect from him average speed and normal skill. In the case of the petitioner, if lie is paid according to the work done by him, it is rather as an incentive to do more work than to do less work. An employer expects a certain minimum, but as an incentive to an employee he says: "we will pay you according to the work you do because the more you work and the more you produce the more you will be paid," and that obviously would act as an impetus or an incentive to the employee to put forward his best. It is perfectly true that a piece-rated worker may on occasions put into his work every ounce of energy that he possesses. He may reach heights which it is not possible to reach every day, he may surpass himself on certain occasions, and nobody suggests that if a piece-rated worker does not maintain the same standard throughout he could be guilty of slowing down. But without reaching those heights it is expected even of a piece rated worker that during that time that he is serving his employer he must at least use his normal skill and average speed. If the charge against the petitioner was that he did not use skill which was more than normal or that he did not work at speed which was more than average, undoubtedly Mr. Chari would be right because it would be left to the petitioner if he wanted to earn more to use more than normal skill and to work at more than average speed. But in this particular case there cannot be the highest doubt that the petitioner has not worked according to normal skill or average speed. He has made admissions in the enquiry which leave no doubt on the subject whatsoever. What he was charged with and what he has been found guilty of is wilful slowing down of work. "wilful" conveys deliberation and calculation, it even conveys an intention to prejudice the interest of the employer. "wilful" rules out any possibility of the slowing down being accidental or unintentional and there can be no doubt as we just said that on the admissions of the petitioner himself he slowed down the work not because he was ill, not because he did dot feel up to the mark, but because he intentionally and deliberately did not wish to use his normal skill and work with average speed.

(3.) NOW, the petitioner had the reputation of being one of the best and fastest builders in the department. He had built as many as 22 to 23 tyres a day. This production fell on 3 October 1952 to 14 tyres, on 15 October the production fell to 11 tyres, in November it fell to 10 tyres, and towards the end of December it went down as much as 8 tyres. So there was a drop from 22 to 23 tyres to building of 8 tyres, and let us see how in the inquiry held the petitioner explains this drop. When he was asked about the drop in production to 8 tyres towards the end of December, his answer is rather significant; "when every one was making 8 tyres, how could I make 10?" And when he is asked why he could not make 10 he says, "how can I go against all the people?" Therefore, in lowering the production to 8 tyres he was working in the interest of the solidarity of labour rather than in the interest of the employer. Then again he informs the officer holding the enquiry, when it is pointed out to him that because of the slow-down his earnings had fallen, that this depends upon his volition, and says : "at this time of the year my sweet will does not desire that I earn more money. " He has also said that he works when he is happy, suggesting thereby that if he is not happy or he does not feel happy he does not do the work properly. It is clear on these admissions that the petitioner wilfully reduced the work and was guilty of misconduct of slowing down.