SONABA BABURAO DALVI Vs. FACTORY MANAGER

JUDGEMENT

(1.) THE petitioner has challenged in this petition under Articles 226 and 227 of the Constitution of India the concurrent findings recorded by the Labour Court, Pune and the Industrial Court, Maharashtra at Pune. The facts which gave rise to the present dispute are as follows:

(2.) THE petitioner was working as a permanent Drawer in the Drawing-in Department of the respondent Mills. He had put in about 20 years service in the Mills. He was served with a show cause notice dated 26-12-1978, the gist of which is that the petitioner had not given the usual production as decided by the company. While others in his shift were giving 8500 ends production, it was alleged that the petitioner was deliberately giving low production by doing work slowly. The said show cause notice also contained his past misconduct and that inspite of legal action against him he had not improved. The show cause notice contained a chart of production given by him from 4-12-1978 to 22-12-1978. The petitioner submitted his written explanation by his letter dated 1-1-1979 denying charge of low production given in the statement. In the written explanation he also made a counter allegation that by issuing such show cause notice of wilfully giving low production the respondent was pressurising him. He also further threatened in the said written explanation that their act of issuance of such show cause notice during the pendency of his application BIR/lcp No. 32 of 1978 would attract criminal proceedings. He finally requested the management to withdraw the show cause notice. After receipt of the aforesaid written explanation the respondent company held a domestic enquiry wherein statements of three witnesses and the petitioner were recorded by the Enquiry Officer. The petitioner refused to cross examine the companys witnesses and also refused to sign the proceedings. To a question put by the Enquiry Officer he agreed that the statement on the back of the show cause notice was showing his production. He however, said that he could not say why the production was less. He also expressed that he was not able to say why and how his co-workers gave production of 8500 ends. His written explanation and also his statement before the Enquiry Officer are far from satisfactory. It appears that the Union which was assisting him had in fact not helped him properly. It appears that the petitioner had approached the union for help in this regard but the union did not do justice to him. In the enquiry he was not represented by the union representative nor he was guided to cross examine the companys witnesses. If the union had prepared his written explanation with some responsibility that would have perhaps helped him a lot in this matter. A written explanation of a workman to the charge sheet is the foundation of his case. Unfortunately however more often the written explanations drafted are cryptic and are far from satisfactory. Very often irrelevant and immaterial statements are made in the written explanation and uncalled for allegations are in the written explanations. In the present case also the written explanation is very cryptic and there is no specific reply to the charge at all. The threat of criminal proceedings was also not called for. Before the Enquiry Officer the petitioner was not able to meet the charge of low production. The witnesses examined on behalf of the company have stated that the Drawer working in the Drawing-in-Department had to give 8500 ends during eight hours and they did so accordingly. The witnesses further have given evidence that the other Drawers were giving production to the tune of 8200 to 8300 ends. One of the witnesses had further to say that the standard production in the Drawing-in-Department was 8500 ends and that the petitioner did not give the same production inspite of telling him repeatedly. The petitioners case in the enquiry throughout has been that he was not able to say why he had given less production. A statement showing the production in the Drawing-in-Department was produced before the Enquiry Officer, but the petitioner was not able to meet the said charge in any manner. I have full sympathy for such an employee who appears to have been totally neglected by his union. On the basis of the said evidence the Enquiry Officer has come to a conclusion that the petitioner had given low production and found him guilty of the misconduct alleged in the show cause notice. On the basis of the said findings of the Enquiry Officer by an order dated 1-4-1979 the respondent employer had dismissed the petitioner from service with effect from 3-4-1979. On receipt of the said dismissal order the petitioner employee sent a letter of approach under section 42 (4) of the Act to request the respondent company to withdraw the order of dismissal and to reinstate him. Even this letter of approach which is a statutory first step towards the Court proceedings is totally vague and far from satisfactory. The very reading of the said letter gives an impression that it was drafted by an illiterate person. The next step which is required to be taken is the filing of an application before the Labour Court under section 79 read with section 78 and 42 (4) of the Act challenging the propriety and legality of the order of dismissal from employment. Even the application drafted is once against far from satisfactory and does not reflect any application of mind to the case of this employee. Apart from saying that he was victimised being active member of the Lal Bawata Union and that there were no norms of production fixed scientifically in the drawing in department nothing much substantial is averred in the application. The respondent company filed its written statement and documents. The Labour Court framed a preliminary issue of fairness and propriety of the enquiry held against the petitioner. After recording oral evidence on the said preliminary point the Labour Court by its order dated 31-12-1986 held that the enquiry was fair and proper. The Labour Court before giving the said findings recorded the evidence of the petitioner employee on 15-11-1984 and the evidence of one Shri D Souza on behalf of the petitioner on 16-1-1995. The Labour Court had recorded the evidence of the Enquiry Officer on 17-10-1986. It is an admitted position that the said order passed by the Labour Court on the preliminary point was not challenged by the petitioner by filing either a revision under section 85 or an appeal under section 84 of the Act. After the said order on the preliminary point the petitioner examined himself before the Labour Court on 18-6-1987. It appears that he was put in witness box only to say that he was a member of rival union and that he was being harassed. He has also said that he was working as a Drawer on one new machine and seven old machines and that he was not given any training. After the decision of the Labour Court, on the preliminary point, the respondent company did not lead any evidence. On the basis of the material on record the Labour Court by its final judgment and order dated 14-9-1987 dismissed the petitioners application. The petitioner carried this order in appeal before the Industrial Court, under section 84 of the Act. The Industrial Court by its judgment and order dated 16-10-1991 dismissed the appeal on both the grounds. It held that the enquiry was fair and proper and that there was no act of victimisation and that punishment was not shockingly disproportionate. Even on merits the Industrial Court has recorded a finding that the petitioner had given low production and did not improve. Finally the petitioner is before me under Articles 226 and 227 of the Constitution of India.

(3.) AT the out set I express my extreme dissatisfaction for the manner in which the petitioners legal proceedings were conducted before the Labour Court which was the Court of first instance. From the beginning the petitioner was not properly guided and helped by the union which he had trusted. It was the foremost duty of his union to have helped him in the matter of his reply to the show cause notice and also in the enquiry and, of course, further in the Labour Court. I must also mention that even on the part of the respondent company the work done was not at all satisfactory from the stage of issuance of show cause notice. The show cause notice as well as the enquiry both were subjected to severe criticism by Shri S. J. Deshmukh, the learned Counsel appearing for the petitioner. The show cause notice as well as the enquiry both reflect the casual manner in which the job was done by the concerned people. Though Shri Deshmukh has vehemently submitted that the show cause notice was vague and that no proper heads of the misconduct alleged were mentioned and to some extent he is right also. I however have to construe the show cause notice not as a statute and I cannot lose sight of a fact that the show cause notice was drafted by a clerk and not legally trained person. The show cause notice contains the gist of allegations against the petitioner that the others were giving more production while he was giving less production. The figure of 8500 ends is specifically mentioned, which others in his shift were giving. On the back side of the show cause notice the petitioners production is given from 4-12-1978 to 22-12-1978 with a view of convey to the petitioner as to how his production was lower than the 8500 ends given by others in the department. The show cause notice gives sufficiently adequate details which are required to be met by the charge-sheeted employee. Though in the department others are giving 8500 ends production and that he was not giving the same deliberately and that his production from 4-12-1978 to 22-12-1978 would show his low production. It is significant to note that in his written explanation he flatly denied the charge of low production and he did not say that he not understood the charge being very vague. I therefore, cannot accept the contention of Shri Deshmukh that the charge-sheet was vague. It is a fact that though the employees at times are illiterate, the employee doing the work of issuance of show cause notices or charge-sheets are also not legally trained person. They issue such notices based on the facts and instructions given by the head of the department. In the present case the show cause notice conveys the material facts of allegations and the petitioner employee did give his reply to the show cause notice after understanding the contents properly.