LAWS(BOM)-1984-9-55

BHIWA Y MULAM Vs. INDABRATOR LIMITED

Decided On September 03, 1984
BHIWA Y. MULAM Appellant
V/S
INDABRATOR LIMITED Respondents

JUDGEMENT

(1.) By this Writ Petition the petitioner Bhiwa Y. Mulam (hereinafter referred to as "the workman"), challenges an award passed by the learned Industrial Tribunal, Maharashtra, Bombay, in Reference (IT) No. 93 of 1979, on 30th January, 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 Welder. He was working there for about five years. He was an active member of petitioner No. 2 Trade Union i.e., Engineering and Metal Workers' Union and was also a member 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 workmen 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 workmen himself was chargesheeted on 3rd July, 1976 on the allegations that on the said day at about 3.00 p.m. when Works Manager Pathak was taking rounds and while he was in the first day from the passage near the Shearing machine he saw the present workman, one Gaikwad and T. A. Devassikutty standing near the marking table and Gaikwad was signing some paper kept inside the drawer of that table. Pathak took out that paper from the drawer. The said paper was in two sets of duplicate with carbon paper and contained signatures from Sr. No. 21 to 63 and Gaikwad had signed at Sr. No. 63, and that this act of the workman amounted to misconduct under model standing order being commission of act subversive of discipline on the premises of the establishment. The petitioner-workman filed a reply to this charge-sheet on 6th July, 1976 pointing out that the allegations made against him were false and that on the relevant day and time he was waiting for the Crane Operator to turn the job which job was by the side of the table where he was standing. At that time Gaikwad passed from there when he took this signature on a representation to be sent to the Municipal Commissioner in connection with the removal of Ram Mandir at Lalbaug. On behalf of the workman it was 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. C. Khandhadia found the workman guilty of charge levelled against him viz, commission of act subversive of discipline on the premises of the establishment. The employer accepted the findings of the enquiry officer and terminated the services of the workman as and by way of dismissal vide their letter dated 30th November, 1977. Thereafter, the petitioners raised an Industrial Dispute by a letter dated 25th May, 1978 demanding reinstatement of the workman with full back-wages. The said dispute was admitted in conciliation and since the dispute could not be settled, the Government of Maharashtra by an order dated 13th March, 1979 made a reference to the Industrial Tribunal. On behalf of the workman a statement of claim was filed before the Tribunal 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 Tribunal. Records and proceedings of the domestic inquiry were admitted in evidence which were considered by respondent No. 2, the learned Industrial Tribunal who by his impugned award held that the dismissal of the workman was unjustified but rejected the workman's demand for reinstatement and instead passed an order directing that workman be paid compensation equivalent to his two years wages. 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 chargesheeted 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 accounts of the fact that he was an active participant in the Trade Union activities. Therefore, Mr. Kotchar submitted that this is 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. In the submission of Mr. Puri, the indiscipline on the part of the workman was serious. Mr. Puri's contention thus is that the punishment was not disproportionate to the misconduct alleged and proved against the workman.