TATA MEMORIAL HOSPITAL Vs. SHASHIKANT SHRIKRISHNA SOMPURKAR

JUDGEMENT

(1.) This petition impugnes the judgment and order dated 29th April, 1994 passed by the learned Member, Industrial Tribunal at mumbai dismissing the application (IT) 53 of 1982 filed under section 33 (2) (b) of the Industrial Disputes Act, 1947 (for short 'the I. D. Act') in Reference (IT) 298/1981. The petitioner hospital is run by Tata Memorial Centre which is a trust registered under the Bombay Public Trusts Act. The respondent-employee was initially appointed vide the appointment order dated 10th June, 1971 in the post of "upper Division Clerk" by an order dated 3rd September, 1980, he came to be transferred to the library from the medicine department as clerk cum typist. It appears that on or about 23rd January, 1981, he was issued a charge-sheet and aggrieved by the same he had approached the Industrial Court at Mumbai by filing a complaint of unfair labour practice. The said complaint came to be disposed as withdrawn as the employer made a statement before the Industrial court that the charge-sheet would not be acted upon and a fresh charge-sheet setting out the details of misconduct would be issued. On 3rd September, 1981, he was issued a memorandum alleging that he had refused to do the following work in the month of August, 1981 and continued to do so till that day. 1) To write book number on spines of books; 2) To type a list of duplicate journals; 3) To issue/receive back library publications; 4) To enter (write) bound periodicals in the register when none-else was there to do the work, 5) To get books/journals placed back with the help of a boy when all other library staff was on leave and there was no place for readers to sit; 6) To wait till 8 p. m. when Mr. Sawaht was on leave; 7) To help readers in finding out library publications; 8) To write titles of written off books in withdrawal register; 9) To type and to send letters in connection with "bibliography on cancer'" 10) To note the contents of the office circular regarding 'coming of office in time '; 11) To direct outside readers to Librarian for checking their identity cards, introductory notes etc; as explanation was called within 7 days which he did on 9th September, 1981 and refuted the allegations. The charge-sheet dated 5th October, 1981 in furtherance of the memorandum dated 3rd September, 1981 was issued levelling the acts of misconduct as set out in the said memorandum. He was informed that those acts on his part constituted the following misconduct : a) Gross neglect of work; b) wilful disobedience of a lawful and reasonable order of a superior; and c) commission of any act subversive of discipline.

(2.) A departmental enquiry was instituted and Mr. George was appointed as the Enquiry Officer. The charge-sheet was replied by the employee on 12th october, 1981. The Enquiry Officer submitted his findings on 7th January, 1982 and a show cause notice was issued to the respondent-employee on 12th february, 1982 calling upon him to show cause to why his services should not be terminated. The employee submitted his reply on 22nd February, 1982 and finally the order of dismissal was passed on 12th May, 1982. As Reference (IT) 289 of 1981 was pending before the Industrial Tribunal, an application for approval of the dismissal order was submitted by the employer before the industrial Tribunal in the said reference as required under section 33 (2) (b) of the i. D. Act.

(3.) The said application came to be registered as application (IT) 53 of 1982 which was opposed by the employee by filing written statement. By an order dated 6th April, 1984, the Tribunal held that the enquiry conducted against the employee was defective and therefore, it was set aside. The Industrial Tribunal called upon the employer to adduce evidence to prove the charges of misconduct as levelled against the employee. The employer examined two witnesses viz. Shri m. N. Manohar, Librarian and Mrs. Chaya V. Tirodkar, Jr. Librarian. The respondent-employee examined himself. By taking into consideration the evidence adduced by the parties and the arguments advanced by them, the approval application was allowed by the Industrial Tribunal on 28th April, 1989. However, this order of approval came to be challenged by the respondent-employee in Writ Petition No. 2271 of 1989 which was allowed on 15th July, 1993 by relying upon an earlier decision in the case of Ganesh Rajan Sarvai vs. Bennett Coleman and Co. reported in 1988 (1) CLR 203 and approval application was remanded in terms of the following directions by this Court; a) The impugned award dt. 28-4-1989 is set aside and the matter is remitted back to the Industrial Tribunal, Maharashtra, Bombay with the direction to decide the said Application (IT) No. 53 of 1982 on the basis of final adjudication as laid down in the judgment of this Court in ganesh Raj an's case (supra). b) Since evidence has been recorded, as stated hereinabove, by the industrial Tribunal, the Industrial Tribunal is directed to decided the matter within three months from today. c) It is made clear that on remand when the matter is being decided fully, all contentions in law as well as in facts are kept expressly open and both the parties are at liberty to advance such contentions as may be advised. It is further clarified that all questions advanced by the petitioner as well as respondent No. 1 even in the present Writ Petition as also in the affidavit in reply thereto are kept open.