AHMEDMIYA AHMEDJI Vs. INDIAN HUME PIPE COMPANY LIMITED

JUDGEMENT

(1.) BY this writ petition, petitioner seeks to challenge the Judgment and Order passed by the 5th Labour Court in Reference IDA No. 94 of 1990 being Part-II Award dated 12-12-1989 by which the Labour Court came to the conclusion that the alleged misconduct against the workman has been found to have been proved and looking to the nature of misconduct the Labour Court rejected the said Reference.

(2.) THE facts giving rise to this petition, briefly, are as follows :-

(3.) ON 6-5-1968, the petitioner was appointed as a Welder by the Indian Hume Pipe Co. Ltd. (1st respondent herein ). Prior to 1968, the workers working in the Welding Department were agitating because they were asked to do the work of x-ray testing which was risky and hazardous and which was not the work of a Welder. The said workers were also asking for a special grade/special allowance because, according to the worker in the Welding Department, the work of x-ray testing was not the normal work of a Welder. The workers were also demanding an upgradation for the post of Assistant Welder. On 26-7-1968, workers in the Welding Department gave to the Management a Demand letter by which the said workers stated that they had formed a Committee to represent their grievances to the Management and to handle their problems pertaining to Welders and Assistant Welders. By the said letter, the Management was informed that the Committee was to consists of four persons including the petitioner. Accordingly, on 26-7-1978, another letter was addressed to the Management under the caption Demands. By the said letter, the Management was informed that the Assistant Welders employed continuously for more than one year should be given the grade of a Welder. Secondly, the workers pointed out to the Management that the work of x-ray testing was being given to the Welders although the said work was required to be done by a Special Department and if the said work is required to be done by the Welders then their grade should be revised. The said letter indicates that the Demand was pending even prior to 1978 but no steps were taken by the Management to redress the grievances of the Welders. By the said Demand dated 26-7-1978, the workers informed the Management that if their grievances and demands are not redressed by 31-07-1978, they will be forced not to carry out such work of x-ray testing. At this stage, it needs to be highlighted that the work of Welding of Pipes is done by the Welders. After the work of welding is done the welded pipes are tested by two methods. One is by pushing through the pipes sent at the appropriate speed/velocity so that if there is any leakage the same could be detected. The second method was by way of x-ray testing by which any defect in the welded pipe could be detected. According to the workers, although x-ray testing work was being given to a Specialised Contractor, from time to time the said workers were also called upon to do the work of x-ray testing for which they raised a Demand for a special grade particularly because it was a risky work which involved radiation. On 22-8-1978, the Management issued a show cause notice to the petitioner alleging that on 28-7-1978, the Management had received the above Demand letter regarding special grade for Welders working on x-ray testing and promotion of Assistant Welders to the Welders grade and stating that if the demands are not conceded by the Management by 31st July 1978, the Welders/assistant Welders would resort to direct action. On 1-8-1978, it was alleged that a meeting of representatives was called and the petitioner was explained about the existing skilled category of Welders being asked to do the x-ray testing work for the last 20 years. According to the said show cause notice, whenever orders stipulating specification of x-ray quality testing were received by the Company the same were executed by the skilled workers and according to the said notice the petitioner was explained that since x-ray testing was a better mode of testing the pipes, there was no substance in their Demand. Similarly, the show cause notices states that the petitioner was also explained that the promotion of Assistant Welders to the Welders category depended on the skill of welding and, therefore, they were not entitled to higher grade. According to the show cause notice, these issues were covered by the Awards and Settlements and, therefore, there was no question of direct action being resorted to by the workers. By the said letter, the Company denied that the Welders were doing the work of x-ray quality testing. By the said show cause notice, the Company further alleged that on 4-8-1978, Welders in x-ray testing jobs, namely, Rajaram and Ramesh stopped the work stating that unless a special grade for x-ray Welders is conceded they will not do the work of x-ray testing. According to the show cause notice, Rajaram and Ramesh were told by the Manager Shri Ramaswamy that if they had any grievance, the same could be discussed and they should not stop the work abruptly. They were asked to give normal production. According to the show cause notice, the workers were requested to discuss the matter on 7-8-1978 and on that assurance the workers once again started their work on 4-8-1978 from 9. 30 A. M. onwards on that day. According to the show cause notice on 7-8-1978, petitioner did not come for discussion but all of a sudden on 14th August 1978, the petitioner along with three other representatives of the Committee stopped the work, they instigated the other Welders and the Assistant Welders not to do the work and accordingly, it is alleged that the workers resorted to sit down strike on and from 14th August 1978. According to the show cause notice, this direct action was illegal, improper and unjustified and on account of the direct action the work of the factory stood paralysed and 140 workers remained completely idle in the factory and the factory also suffered loss of production to the extent of Rs. 50,000/ -. According to the show cause notice given by the Manager referred to above, the petitioner had instigated and also threatened the violence and abused officers. He had also abused the co-workers who refused to join the strike and every day, after 14-8-1978, processions were taken out at about 12. 00 noon and at about 3. 30 P. M. from the factory to the Office using filthy language against the Manager and the supervisory staff. According to the show cause notice, apart from participation in Morcha, the petitioner and the other workmen also stopped loading and unloading operations and the workers also resorted to gherao and physical assault on supervisory staff. According to the show cause notice, petitioner along with other Welders and some outsiders went in procession to the residence of the Manager at Adinath Co-operative Housing Society on 24-8-1978 and manhandled the watchmen in the Society and forcefully entered and knocked at the door of the residence of the Manager in order to break open the same and the petitioner also shouted slogans in abusive and filthy language and burnt their effigies in the premises creating ugly scenes and sense of terror to the inhabitants. According to the show cause notice, the same misconduct was repeated at the residence of N. R. Shetty the Office in charge of H. S. Department. According to the show cause notice the above direct action resulted in paralysing the work of the factory and the morale of loyal workers and in the circumstances the Company had no other option but to issue a show cause memo as to why disciplinary action should not be taken against the petitioner and why he should not be suspended pending further inquiries. By the show cause notice given by the Manager on 27-8-1978, the Management offered to the petitioner to refer the points of difference to Arbitration or adjudication under section 10 (2) so that the entire dispute can be resolved quickly and necessary amendments in the Award may be made with regard to classification of grades. However, this was subject to the workers withdrawing their agitations and restoring the normalcy and provided they agreed to work diligently and faithfully and give normal output. On 12-9-1978, a second show cause notice was given to the petitioner by the Manager Shri Ramaswamy. This was further to the first show cause notice. By the said second show cause notice it was alleged that on 5-9-1978, petitioner had requested a meeting with the Manager and accordingly meeting was held and during the discussion the petitioner asked for full payment of wages to the striking Welders. However, the Management told the petitioner that no wages can be paid for the days when the Welders have resorted to sit down strike and therefore, request made by the workers cannot be considered because, according to the Management, the workers had resorted to an illegal strike. According to the said second show cause notice, on 5-9-1978, at 3. 00 P. M. , when the petitioner was informed that payment for the days for which the workers had worked during August 1978 would also be made in the Labour Office the petitioner refused to enter the premises for receiving payment but insisted that the payment should be made at the North gate. However, the Management told the petitioner that there was no adequate arrangement at the North gate for payment and as the cash involved was substantial, the payment cannot be made at the North gate. Ultimately, according to the Management, the petitioner agreed to collect the payment from the Labour Office at 3. 00 P. M. When one Kisan Jayaram, on receiving the payment of wages went out of the North gate, the petitioner objected and forcefully rushed into the factory along with the Welders who were on strike and started arguing and instigating as to why separate paysheets were prepared instead of computer paysheets which was the normal practice followed by the Management and at this stage the petitioner asked Shri Patil a Time Keeper to cancel the signature of Kisan Jayaram who had received the payment and upon this, argument took place and the petitioner instigated the other Welders not to accept the payment. According to the said second show cause notice, the Time Keeper Shri Patil explained to the petitioner that handmade paysheets were prepared to expedite the payment of wages to the striking workmen and as the striking Welders are working in various Departments, it was not possible to make payment against the computer paysheets. According to the said show cause notice, even after the above clarification was given, the petitioner argued in derogatory language and he forcefully took the copy of the paysheet containing signature of Kisan Jayaram and insisted that he be allowed to take it out of the Office which was objected to by the Management. The petitioner became aggressive. He was asked to see the Manager Shri Ramaswamy. For the above alleged misconduct, the second show cause notice was given. Ultimately, on 17-2-1979, the petitioner herein came to be charge-sheeted on the ground that his explanation to the above two show cause notices were not satisfactory and he was charge-sheeted for participating in an illegal strike or instigating, abetting or acting in furtherance thereof. He has also charge-sheeted for riotous disorderly or indecent behaviour including the use of abuses, use of intimidating tactics, assault within the establishment and also commission of act subversive of good behaviour within the establishment and acts of indiscipline within the establishment. By the said chargesheet, the worker has been informed that a Domestic inquiry would be held into the matter on 26-2-1979. On 15-3-1979, the petitioner was informed by the Management that with regard to the inquiry held on 26-2-1979, 8-3-1979 and 9-3-1979, he has been found guilty of the above charges excepting the charge as per No. WDL/x. 9/1093 dated 12/13-9-1978. According to the said letter dated 13-03-1979, the Management had gone through the inquiry proceedings and the report of the Inquiry Officer and on the basis of the findings given by the Inquiry Officer, the Management had, vide letter dated 13-3-1979, after considering the past record of service informed the petitioner that his services stand terminated forthwith. Being aggrieved by the said dismissal dated 13-3-1979, Reference IDA No. 94 of 1980 came to be made to the Labour Court. A Statement of Claim was filed by the worker on 5-6-1980. By the said Statement of Claim the petitioner alleged that the Officer in charge of the Welding Department Shri N. R. Shetty forced the Welders to attend to highly skilled job of x-ray testing for which the workers made a genuine representation that they should be compensated for undertaking the risky type of job of x-ray testing which request was not to the liking of the Management although the amount involved was a very small amount by way of special allowance which the workers were claiming. According to the said Statement of Claim, the action taken by the Management was unjustified and the orders of dismissal were illegal and highly objectionable. According to the Statement of Claim, the petitioner was working as a Welder since 6-5-1968 and when he became representative of the workmen or Welders, he was chargesheeted with others. According to the Statement of Claim, the other co-worker Shri Francis was forced to work as x-ray Welder and when he expressed his difficulties, he was dismissed on 15-3-1979 without inquiry. Similarly, grievances were made with regard to other Welders. According to the Statement of Claim, the Company had also resorted to above unlawful action in order to take revenge against those workers who gave up Sarva Shramik Sangh and joined Bharatiya Kamgar Sena and according to the workers the above action constituted victimization of the workers. By way of Written Statement, the Company pointed out that the dispute was raised by the eight workers whose names are given in para 2 including the petitioner. According to the Company, on 28-7-1978, the worker had raised the above two demands. According to the Company, on 4-8-1978 the Welders working on x-ray testing job illegally stopped the work stating that unless and until their Demand for special grade was conceded they would not work. This averment in the Written Statement indicates that, even according to the Company, the said Welders were required to do the work of x-ray testing. According to the Written Statement, a meeting was arranged on 7-8-1978. The workers did not turn up for discussion but on and from 14-8-1978, the workers numbering 80 illegally stopped the work from 9. 30 A. M. and they refused to work because of the instigation of the petitioner and other three representatives, namely, Bandekar, Ratnam and Raman and in the circumstances, the Management had to issue notice to the concerned workmen pointing out that their direct action amounted to an illegal strike which had paralysed their Special Department and Workshop. According to the Written Statement, the illegal stoppage of work amounted to an illegal sit down strike and, therefore, no wages were payable for the said period commencing from 17-8-1978 onwards because 15th and 16th were holidays. According to the Written Statement, on 18-8-1978, during the lunch hours, petitioner, Bandekar, Raman and Ratnam along with the other striking workers went in procession shouting slogans and using abusive language which continued even thereafter day-to-day during the lunch hour and even at the time of closing of the shift at 3. 30 P. M. According to the Written Statement, on 20-8-1978, during lunch hour, at about 12. 00 noon, the striking Welders along with others went in procession to the Main Office carrying effigies representing the Manager and Shetty and shouted the slogans in abusive and filthy language in front of the Main Office. Similarly on 22-8-1978, at 3. 30 P. M. , the workmen entered the Production Department, namely, Workshop, Hume Steel Department, H. S. Special Department and they again started shouting slogans in the most abusive language. On 22-8-1978, at 2. 30 P. M. the striking workmen surrounded the Manager Ramaswamy and Shetty and they even slapped them from behind for about 10 to 15 minutes and they obstructed the despatch of certain goods to Calcutta, Hyderabad etc. According to the Written Statement, on 24-8-1978, the striking workmen continued with the illegal strike and at the instigation of the petitioner and other Welders Bandekar, Ratnam and Raman carried an effigy of Ramaswamy in procession to his residence and even burnt the effigy in front of the residence. According to the Written Statement, the striking workmen along with others attempted to forcefully enter into the residence by assaulting the watchmen on duty at the gate of the Society and they even tried to break open the door of the residential Apartment of Shri Ramaswamy and in the procession they also shouted slogans in highly abusive language and they threatened that if their demands were not conceded, they would also burn the Manager inside the factory itself. According to the Written Statement, similar action was resorted to at the residence of Shri Shetty and accordingly the workers created terror and fear in the minds of the family of Shri Ramaswamy and Shri Shetty. According to the Written Statement, on August 25, 1978 the striking workmen led by the petitioner and at the instigation of the petitioner took out a procession during the lunch hour and at the end of shift they also shouted slogans against Ramaswamy and Shetty and obstructed the movement of the material to Bombay Municipal Corporation and they also tried to threaten the Supervisors and the Municipal Staff with gheraos, Dharna and other intimidatory tactics. On 22-8-1978, the striking Welders along with the other workers resorted to the same tactics allegedly at the instigation of the petitioner. According to the Written Statement, they also sabotaged the manufacturing work of pipes and they made it impossible for the Company to effect delivery. According to the Written Statement, on 27-08-1978, the petitioner and the other Welders were issued show cause notice under the above circumstances and this show cause notice was followed by a chargesheet and the domestic inquiry as narrated hereinabove. All other allegations made by the petitioner in the Statement of claim have been denied. In the Written Statement, the Company has pleaded that classification dispute raised by the workers is squarely covered by the Awards of the Industrial Tribunal which were still in force and, therefore, the workers Demand was not justified. According to the Written Statement, the workers were adamant and they pressed their unlawful demands and although the Company offered to refer the dispute to Arbitration or adjudication, they insisted on proceeding on an illegal strike. By the Written Statement, the Company pleaded that the dismissal orders were issued after following due procedure of law and principles of natural justice. According to the Written Statement, the Company was forced to impose a lockout from 3-11-1978 on account of an illegal, violent and agitational activities resorted to by the Union and its supporters. In the circumstances, the Company alleged, vide Written Statement, that the strike resorted to by the workers on 14-8-1978 was illegal and bad in law and it was also unjustified. To complete the narration of events, it may be stated that some time in August 1978, the Company moved the Industrial Court under section 28 of the U. L. P. Act, 1971 inter alia seeking an injunction against the workers from resorting to the alleged unlawful activities like staging demonstrations at the residence of the Manager and the Officers, shouting abusive slogans etc. This complaint was withdrawn subsequently by the Company on the ground that the strike had ended. This was sometime in September, 1978.