GANESH T PANSE Vs. TATA MEMORIAL HOSPITAL

JUDGEMENT

(1.) The First Petitioner is employed as a Scientific Officer with the First Respondent at Mumbai. On 22nd September 2000 a notice to show cause was issued to the First Petitioner to explain as to why disciplinary action should not be initiated against him for an act of misconduct. A charge sheet was issued to the First Petitioner on 9th February 2001 to which the First Petitioner submitted a reply on 26th February 2001. In the meantime, the First Petitioner was transferred from the Immuno Biochemistry Laboratory to the Pathology Department, a transfer which the Petitioners challenged in a complaint of unfair labour practices (Complaint (ULP) 288 of 2001). The Petitioners also sought a stay of proceedings in pursuance of the charge sheet. Interim relief was refused. An enquiry was conducted into the charges levelled against the First Petitioner and the Enquiry Officer found that the charge of misconduct was duly established. Apprehending that his services would be terminated, the First Petitioner filed a second complaint of unfair labour practices under Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Interim relief was refused in the complaint following which the matter was carried in a Writ Petition before this Court. The Learned Single Judge of this Court by an order dated 1st December 2003 noted that the First Petitioner herein had tendered an apology before the Enquiry Officer. This Court while disposing of the petition observed that while it was not inclined to interfere under Article 226 of the Constitution, it would be desirable if the First Respondent took into account the fact that the employee here had tendered his apology, while imposing the punishment. The First Petitioner undertook to withdraw the complaint filed by him before the Labour Court. In pursuance of the disciplinary proceedings and having regard to the observations contained in the order of the Learned Single Judge dated 1st December 2003, the Second Respondent passed an order on 11th December 2003 reducing the First Petitioner to a lower stage in the pay scale from a basic pay of Rs.13,900/- to Rs.12,275/- per month for a period of three years. The order of punishment further directs that the First Petitioner shall not earn any increments of pay during the period of reduction and the reduction shall have the effect of permanently postponing the future increments of pay.

(2.) The order of the Second Respondent imposing a penalty upon the First Petitioner in the disciplinary proceedings was challenged in a complaint of unfair labour practices (Complaint (ULP) 24 of 2004), principally on the ground that the punishment which was imposed was not in accordance with the Model Standing Orders framed in pursuance of the Industrial Employment (Standing Orders) Act, 1946; the regulations of the First Respondent had not been notified by the appropriate Government under Section 13(B) and the order of the disciplinary authority imposed multiple punishments by both reducing the First Petitioner in the scale of pay and by a stoppage of his increments. The complaint was disposed of by the Industrial Court by an order dated 5th April 2004. The Industrial Court held that the service regulations framed by the First Respondent were not required to be notified under Section 13(B) of the Industrial Employment (Standing Orders) Act, 1946 and, therefore, rejected the first of the two challenges to the order of the disciplinary authority. The Industrial Court, however, accepted the second challenge and held that the First Respondent was in error in both reducing the basic pay of the employee and withholding future increments. The Industrial Court, therefore, disposed of the complaint, observing that it would be open to the First Respondent to award any one of the punishments prescribed in the service rules. After the Industrial Court passed its order, the disciplinary authority passed a fresh order on 10th May 2004. The disciplinary authority while adverting to the order of the Industrial Court and to the apology that was tendered by the First Petitioner, imposed a lesser punishment by reducing the basic pay of the First Petitioner from Rs.13,900/- to Rs.12,275/- per month in the same scale of pay.

(3.) On behalf of the Petitioners, the order passed by the Industrial Court has been called into question on the following grounds: (i) The disciplinary enquiry and the imposition of punishment was governed by the provisions of the Industrial Employment (Standing Orders) Act, 1946; (ii) Though the employer had in its Written Statement expressly raised the defence that the First Petitioner was not a workman within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947, in the earlier complaint that was filed by the First Petitioner, Complaint (ULP) 288 of 2001, this defence had been given up and consequently, the employer was estopped from challenging the status of the First Petitioner as a workman; (iii) In any event, under Section 38(B) of the Bombay Shops and Establishments Act, 1948, the Model Standing Orders framed under the Act of 1946 were attracted; (iv) The Industrial Court was in error in holding that a notification of the service rules was not required under Section 13-B. In sum and substance, therefore, the contention of the Petitioners is that the punishment that has been imposed upon the First Petitioner was not in accordance with the provisions of the Model Standing Orders.