BALAKRISHNA TINDAL Vs. INDABRATOR LIMITED

JUDGEMENT

(1.) By this writ petition the petitioner Balkrishna B Tandel (hereinafter referred to as "the workman"), challenges an award passed by the learned Presiding Officer, 9th Labour Court, Bombay, in Reference (IDA) No. 478 of 1978, on 2nd March, 1984.

(2.) The short facts leading to the filing of this writ petition are that the petitioner was employed by M/s. Indabrator Limited (hereinafter referred to as "the employer") as a Fitter. He was working there for the about 9 years. He was an active member of a Trade Union known as Engineering and Metal Workers' Union and was also Joint Secretary of the Factory Committee of the said Union. According to him, the employer did not like their employees joining the said Union and, therefore, they encouraged another Union called Bharatiya Kamgar Sena to come up and started harassing the members of the Union to which the workman belonged. He further alleged that the Factory Committee consisted of five workmen out of which three employees, including the petitioner, were removed from services on false and baseless charges. Thus, the present workman himself was chargesheeted on 10th December, 1976 on the allegations that on the said day when Works Manager Pathak was taking rounds with one Gaonkar he noticed the present workman standing idle near mould cleaning machine for Vikrant Tyres and when questioned he answered that he was waiting there for a plate that he had given for gas cutting. When further inquired as to why he did not do some other work in the meanwhile, the workmen shouted that he (Pathak) should not speak to him and that whatever was to be said to him the same should be said by Gaonkar. He also threatened Pathak that if he wanted to speak to him he should do it outside the Company. The Petitioner-workman filed a reply to this chargesheet on 13th December, 1976 pointing out that allegations made against him were false and that on the relevant day and time he was waiting for the plate given by him for gas cutting and that is how he was standing as alleged. According to him when questioned by Pathak he explained the situation to him upon which Pathak got angry when he said to him that if anything is to be clarified it could be done from Gaonkar who was his immediate superior and knew the things well. Thus he stated that talks between him and Pathak were distorted in the charge-sheet. The workman also contended that he was charge-sheeted on a totally fabricated story with a view to victimise him because he was an active functionary in the Union. The employer thereafter held a domestic enquiry against the workman. The enquiry officer C. E. Mahindrakar found the workman guilty of both the charges levelled against him, viz., (i) wilful insubordination or disobedience whether alone or in combination with others to any lawful and reasonable order of a superior and (ii) commission of act subversive of discipline on the premises of the establishment. The employer accepted the findings of the enquiry officer and dismissed the workman vide their letter dated 8th October, 1977 from service. After the dismissal of the workman, the Engineering Metal Worker's Union served a demand on the employer-Company by a letter dated 14th December, 1977 for reinstatement of the workman which demand was admitted in conciliation and since the dispute could not be settled, the Conciliation Officer submitted a failure report on 13th October, 1978 upon which the Deputy Commissioner of Labour, Bombay, made a reference to the Labour Court. On behalf of the workman a statement of claim was filed in the Labour Court justifying the demand which was resisted by the employer by filing a written statement. Parties also filed documents relied upon by them. Neither the workman nor the employer adduced any oral evidence before the Labour Court and instead filed their written arguments. Records and proceedings of the domestic inquiry were admitted in evidence which were considered by respondent No. 2, the Labour Judge of the 9th Court, Bombay, who by his impugned award dated 2nd March, 1984 set aside the dismissal order but rejected the workman's demand for reinstatement, and instead passed an order directing termination of the services of the workman from 10th December, 1976. He further directed the employer to pay retrenchment compensation and gratuity amount together with leave and earned wages, if any, to the workman. Being aggrieved by the said award, the workman filed the present writ petition.

(3.) Mr. Kotchar, appearing on behalf of the workman, first of all submitted that the allegations made against the workman do not amount to misconduct and that the workman should not have been charge-sheeted and no enquiry should have been held against him. In any case, according to him, this was certainly not a case in which the employer should have passed an order of dismissal against the workman even if it was held that he had committed misconduct, further submitted Mr. Kotchar. He also urged that the punishment awarded to the workman by the employer was so disproportionate to the alleged misconduct that it amounts to victimisation apart from the fact that the workman was victimised purely on account of the fact that he was an active participant in the Trade Union activities. Therefore, Mr. Kotchar submitted that this is a fit case where the workman should be reinstated with continuity of service and full back-wages. Controverting the submissions made by Mr. Kotchar, Mr. Puri who argued the matter on behalf of the employer urged that the dismissal order in this case was fully justified as the workman had not only disobeyed the order of his superior but had also used threatening language against him that if he wanted to talk to him he should do so outside the Company. In the submission of Mr. Puri, the indiscipline on the part of the workman was serious in as much as he was rude and was in a threatening mood and talked to his superior in an insulting manner. Mr. Puri's contention thus is that the punishment was not disproportionate to the misconduct alleged and proved against the workman.