SIEMENS LTD Vs. BABULAL RAMLAL WALMIKI

JUDGEMENT

(1.) Writ Petition No. 1861 of 2003 is by the company impugning the award dated 21-12-2002 whereby the Seventh Labour court at Mumbai has set aside the order of dismissal passed against the workman with effect from 15-12-1993 with a further direction to the company to reinstate the complainant with backwages to the extent of 50% and continuity of service. Writ Petition No. 2373 of 2003 is by the workman to impugn Part I of the award dated 29-7-2000 whereby the learned Labour Court has recorded a finding that the findings of the enquiry officer are not perverse. It is the case of the workman that the findings are based on no evidence and in these circumstances perverse and consequently the domestic enquiry ought not to have been relied upon. The workman also challenges the main award to the extent it has denied him 50% of the backwages.

(2.) During the course of discussion in both these petitions, which are being disposed of by this common judgment as they are directed against the same award, company is referred to as "employer" and workman as "workman". A few facts may now be set out. The workman was employed as Sweeper with the employer at its Worli factory since 13-2-1960 and his last drawn wages were Rs. 6,500/- per month. He met with an accident on 16-9-1987 and was admitted at Jaslok Hospital, Mumbai. He was discharged on 17-9-1987. On that very date, an officer of the Employer came to Jaslok Hospital and took the workman to Worli factory where the Workman was made to sit for a while and then allowed to go home by company's transport bus. No sooner the workman reached home at Kalwa, a police officer from Worli arrived and took the workman to Worli Police Station where he was informed that he has been arrested for the theft of company's property. Two other persons were also arrested in respect of the theft of the company's property. The workman was suspended on 29-9-1987 and later charge-sheeted on 17-10-1987 in terms of the applicable standing orders for having committed fraud or dishonesty in connection with employer's property. A departmental enquiry was then initiated. The workman by letter dated 1-12-1987 requested the employer not to proceed with enquiry as a criminal case on the same set of facts and allegations was pending before the Magistrate and hence, irreparable harm, damage and prejudice will be caused to the workman if he is allowed to disclose his case in the departmental enquiry. In spite of that request, the employer proceeded with the enquiry. The Workman, therefore, approached the Court which granted stay in respect of domestic enquiry. On 26-5-1989 the workman was acquitted of the offences punishable under section 380 read with section 114 of the Indian Penal code by the Magistrate's Court. The stay granted thereafter came to be vacated and the enquiry was thereafter commenced from 1-7-1993 and stood concluded on 16-9-1993. On 15-12-1993 the workman was dismissed from service of the company. It is this order which was the subject matter of Reference.

(3.) Based on the pleadings of the parties, the learned Lahour Court was pleased to frame two preliminary issues which were as under : "1a. Whether the enquiry was fair and proper 1b. Whether the findings of the enquiry officer are perverse - on consideration of the evidence on record and for the reasons set out in the order dated 29-7-2000, the learned Labour Court held that the enquiry held was fair and proper and further held that the findings recorded by the Enquiry officer are not perverse. After the Court held that the enquiry was not vitiated, and the findings are not perverse, evidence was led by the workman, that the punishment imposed was disproportionate to the misconduct alleged and proved. The Employer on its part produced memo/warnings, insofar as past record of the workman was concerned. After considering the evidence the learned Labour Court observed that the Management Company has not considered the honourable acquittal of the workman. Insofar as past record is concerned, the learned Labour Court held that there was no serious punishment except punishment of one day suspension by order dated 25-9-1981. The Labour Court considered the long tenure of 24 years of service by the workman with the employer and observed that the employer had not considered the length of service while imposing the punishment. The learned Labour Court also noted that the workman had got honourable acquittal in the criminal case. The contention of the employer that the workman was acquitted for want of evidence, for non-examination of evidence and hostile testimony, was rejected. The Labour Court thereafter came to the conclusion that the punishment awarded was disproportionate and accordingly set aside the punishment awarded by the Management with a direction to direct reinstatement of the workman with 50% backwages and continuity of service.