Full Judgment Text
2023:BHC-AS:39088
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.550 OF 2020
Raptakos Breet & Company Ltd. …. Petitioner
Versus
Gajanan M. Sonawane …. Respondent
…
Ms. Uma K. Wagle , for Petitioner (VC).
Mr. Ramesh D. Bhat , for Respondent.
…
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 12 DECEMBER 2023.
PRONOUNCED ON : 22 DECEMBER 2023.
JUDGMENT:
1. Rule. Rule made returnable forthwith. With the consent of
the learned counsel appearing for parties, petition is taken up for hearing.
2. Petitioner-Employer has filed this petition challenging
Judgment and Order dated 23 April 2019 passed by the Second Labour
Court, Mumbai in Complaint (ULP) No.06 of 2012 directing payment
of 50% backwages to Respondent from 14 October 2011 till his age of
superannuation. Petitioner also challenges Judgment and Order dated 22
October 2019 passed by the Industrial Court, Mumbai dismissing it’s
Revision Application (ULP) No.72 of 2019 and allowing the
Respondent’s Revision Application (ULP) No.68 of 2019 directing
payment of full backwages to him from the date of termination till the
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age of superannuation.
3. Briefly stated, facts of the case are that Petitioner is
Pharmaceutical Company. Respondent was employed in the services of
Petitioner-Company at it’s Thane factory. A Show Cause Notice was
issued to the Respondent on 19 May 2011 and after receipt of his
explanation, Petitioner-Company initiated domestic enquiry after
issuance of charge sheet dated 24 June 2011. In the charge sheet, it was
alleged that on 29 April 2011, while being assigned duty in workshop
from 3.00 p.m. to 11.00 p.m., Respondent was found loitering in the
change room between 3.30 p.m. to 4.00 p.m. instead of being present at
his workplace. He was also found to be chewing tobacco which is strictly
prohibited in the premises of the company. For such act, an inquiry was
intended to be held on 03 May 2011 and Respondent was called on 3.10
p.m. by Shri. S. M. Damle, Executive-Personnel for issuance of Order of
suspension. However, Respondent refused to accept the letter sought to
be served on him. It was further alleged that on 03 May 2011, while
being on duty in the first shift from 7.00 a.m. to 3.00 p.m. Respondent
and other co-employers were standing near the punching machine
adjoining to personnel department at 3.00 p.m. and Respondent
threatened Mr. P. V. Manjarekar and abused him in filthy language while
he was passing by the punching machine.
4. On these charges, enquiry was proposed to be held by
appointing Mr. M. K. Jadhav as Enquiry Officer. The domestic enquiry
was held, in which respondent participated from 07 July 2011 to 29
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September 2011. The enquiry officer held Respondent to be guilty of
misconduct alleged in the charge sheet and submitted report dated 11
October 2011, which was served on Respondent. The second Show Cause
Notice was issued to him in pursuance of the findings of the Enquiry
Officer and after considering Respondent’s reply, an order dated 14
October 2011 was passed imposing punishment of dismissal from service
on the Respondent.
5. Aggrieved by the penalty of dismissal from service,
Respondent approached Labour Court, Mumbai by filing Complaint
(ULP) No. 06 of 2012. The complaint was resisted by Petitioner by filing
Written Statement. The Labour Court framed preliminary issues and
delivered part-1 Award dated 04 March 2017 holding that enquiry was
not conducted in fair and proper manner and not according to the
principles of natural justice. It also held that the findings of the Enquiry
Officer were perverse. Part-1 Award was challenged by the Petitioner by
filing Complaint (ULP) No. 42 of 2017 which came to be rejected by
order dated 23 August 2018. Both parties led evidence before the Labour
Court after delivery of part-1 Award. It appears that during pendency of
the proceedings before Labour Court, Respondent attained age of
superannuation in the year 2017. After considering the evidence, the
Labour Court proceeded to deliver part-2 Award dated 23 April 2019
partly allowing the Complaint and directing the Petitioner to pay 50%
backwages to the Respondent from the date of termination i. e. 14
October 2011 till the date of superannuation.
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6. Both Petitioner as well as the Respondent were aggrieved by
the Labour Court’s decision dated 23 April 2019. Respondent filed
Revision Application (ULP) No.68 of 2019 challenging the Labour
Court’s Award to the extent of denial of full backwages. The Petitioner-
Company, on the other hand, filed Revision Application (ULP) No.72 of
2019 challenging the entire Award. Both the Revision Applications came
to be heard together and decided by common Judgment by the Industrial
Court dated 22 October 2019. The Industrial Court proceeded to dismiss
the Revision Application (ULP) No. 72 of 2019 filed by the Petitioner. It
however allowed the Revision Application (ULP) No. 68 of 2019 filed by
Respondent and directed that the Respondent shall be entitled to full
back wages from the date of termination till the age of superannuation.
Petitioner is aggrieved by the common Judgment and Order dated 22
October 2019 passed by the Industrial Court and has filed the present
petition.
7. Ms. Wagle, the learned counsel appearing for Petitioner
would submit that the Labour Court and Industrial Court have erred in
not appreciating the fact that the dismissal order is passed on the basis of
cogent evidence on record. That Petitioner is a pharmaceutical company
and chewing of tobacco by any employee in the premises of the company
is highly dangerous. That therefore the conduct of the Respondent in
chewing of tobacco was serious in nature. On the top of said serious
charge, Respondent also threatened and abused Mr. P. V. Manjrekar. That
all charges are proved by leading evidence by the employer. That this was
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not the first time that Respondent had indulged into misconduct. That
he has been punished on 9 occasions in the past and had failed to
improve his conduct, despite being punished repeatedly. That in the past
also he was found chewing tobacco during working hours. That
threatening and abusing of higher officer is gross misconduct on the part
of the Respondent for which penalty of dismissal from service was clearly
warranted. That the Petitioner has discharged burden of leading evidence
which is sufficient for proving charge in domestic enquiry. That once
there is some evidence to prove the charge, the Industrial Court and
Labour Court could not have interfered in the penalty imposed in
enquiry. She would pray for setting aside the Orders passed by the
Labour Court and Industrial Court.
8. Per Contra Mr. Bhat, the learned counsel appearing for
Respondent would oppose the petition and support the Order passed by
the Industrial Court. He would submit that Petitioner was deliberately
implicated in false complaints for participation in union activities. He
would invite my attention to paragraph No. 4 of the affidavit of evidence
of Respondent in which evidence was led to prove that management was
not happy with the Respondent’s participation in union activities and
that therefore the company wanted to remove him from factory premises
and he was therefore transferred to registered office of company at
Nariman Point before issuance of the charge sheet. That despite there
being no work for the factory workers in the registered office, he was
deliberately kept out of factory premises. He would demonstrate
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contradictions in the charge sheet by pointing out that incident relating
to alleged threat and abuse to Mr. Manjrekar is shown at 3:00 p.m. on 03
May 2011 whereas refusal to accept communications regarding enquiry
and suspension is shown at 3:10. on same day. That there is no evidence
in the entire enquiry about the Respondent indulging in act of chewing
tobacco. That evidence of Ms. Suchita Ankolekar is hearsay and Mr.
Chaughule, who allegedly saw Respondent chewing tobacco was not
examined before the Labour Court. That the evidence of Mr. Manjrekar
is required to be ignored and has rightly been ignored as no other co-
worker is examined though several were admittedly present when the
alleged incident occurred. That Shri. Manjrekar is not a credible witness
as he has contradicted himself with regard to presence of other co-
workers in examination in chief and in the cross-examination. He would
submit that Labour Court and Industrial Court have recorded finding of
fact which need not be interfered by this Court in exercise of jurisdiction
under Article 227 of the Constitution of India. That the concurrent
findings recorded by the Labour Court and Industrial Court cannot be
interfered by this Court in absence of any perversity in the same. He
would pray for dismissal of the petition.
9. Rival contentions of the parties now fall for my
consideration.
10. Respondent faced the following broad charges in the charge
sheet dated 24 June 2011.
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i) Loitering in the change room between 3:30 p.m. to
4:00 p.m. on 29 April 2011 when required to be present on
workplace.
ii) Chewing tobacco between 3:30 p.m. to 4:00 p.m. on
29 April 2011.
iii) Refusal to accept letters of enquiry and suspension
order from Shri. S.M. Damle, Executive-Personnel at 3:10
p.m. on 3rd May 2011.
iv) Threatening and abusing Mr. P. V. Manjrekar in filthy
language at 3:00 p.m. on 3rd May 2011.
11. Since Part-I Award went against Petitioner, it examined
following witnesses to prove the above charges:-
i) Mr. M. K. Jadhav as Enquiry Officer.
ii) Shri. Prakash Vishnu Manjrekar – Packing Supervisor in
support of allegation of threat and abuse.
iii) Shri. Ravindra Rohidas Borade – Production Executive in
support of allegation of not being found at the work place at
3.30 p.m. on 29 April 2011.
iv) Shriniwas Madhusudan Damle – Personal Executive in
support of allegation of refusal to accept letter on 03 May
2011.
v) Suchita Gajanan Ankolekar – Senior Vice President
(Personnel and Material) in support of allegation of
Respondent being found chewing tobacco on 29 April 2011
and his past conduct.
12. All the management witnesses were cross-examined by the
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Respondent. The Respondent has examined himself as witness and has
been cross-examined by the Petitioner-Company.
13. I have gone through the entire evidence on record. While
exercising jurisdiction under Article 227 of the Constitution of India over
findings recorded by the Labour Court in its Original Jurisdiction and by
the Industrial Court in its Revisional Jurisdiction under Section 44 of the
Maharashtra Recognition of Trade Unions & Prevention of Unfair
Labour Practices Act, 1971, this Court cannot sit in Appeal over the said
findings. The role of this Court is restricted essentially to find whether
there is any perversity in the findings recorded by the Labour Court or
Industrial Court. Keeping this limited scope in mind, I proceed to
examine the evidence led by the Petitioner to prove charges before the
Labour Court to examine whether the findings of the Labour Court and
Industrial Court can be sustained.
14. The first charge is about loitering in the change room and not
being present at the workplace between 3:30 p.m. to 4:00 p.m. on 29
April 2011. The evidence of Ravindra Rohidas Borade show that
Respondent was not found at his workplace at 3:30 p.m. The witness has
deposed that at least 05 workmen are required to be present at the filling
and packing section for operation of machines and that absence of even
one leads to non-functioning of the machines. The witness has deposed
that on account of Respondent’s absence at the place of work, the work
was held up for half an hour between 3:30 p.m. to 4:00 p.m. The witness
has further deposed that he later noticed presence of Respondent at about
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4:15 p.m. Thus, the charge of missing from the place on duty is proved
by evidence of Mr. Ravindra Rohidas Borade. Though cross-examination
of the witness is conducted and admission is sought to be extracted from
the witness to demonstrate that the production did not suffer on 29 April
2011, the witness further clarified that the production is part of
teamwork. Therefore it cannot be inferred that mere non-effect on
production would absolve Respondent of the charge of missing from the
workplace on 29 April 2011.
15. The Labour Court and Industrial Court have proceeded to
discard the evidence of Shri. Borade on account of absence of proof of
less production on account of non-presence of Respondent during 3:30
p.m. to 4:00 p.m. on 24 June 2011. To my mind, the said findings of the
Labour Court and Industrial Court are perverse. Whether Petitioner’s
absence from duty led to reduce production is a totally irrelevant factor.
Respondent was charged with the misconduct of missing from duty
between 3:30 p.m. to 4:00 p.m. on 29 April 2011 and the said charge has
been proved. Weather such conduct had effect on production is an
altogether different aspect.
16. The next charge leveled against Petitioner is about chewing
tobacco when he found loitering near change room between 3:30 p.m. to
4:00 p.m. on 29 April 2011. Here the evidence of Smt. Suchita Ankolekar
indicates that the act of chewing tobacco was noticed by Mr. Chaughule,
Manager-Personnel and Administration. Though Mr. Chaughule was
examined in the enquiry, the Petitioner did not examine Mr. Chaughule
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before the Labour Court possibly because he had left the employment by
that time. Thus the evidence of Smt. Suchita Ankolekar about chewing
tobacco is hearsay. Though ordinarily hearsay evidence is not allergic to
domestic enquiry as has been held by the Apex Court in it’s Judgment in
State of Haryana v. Rattan Singh , (1977) 2 SCC 491, it would be
dangerous to accept the testimony of Smt. Ankolekar who was posted in
Petitioner’s Nariman Point office and was giving evidence about
happening of an incident in Thane factory premises. She has not
recorded any statement of the witness who saw Respondent chewing
tobacco. At the same time, I am not fully convinced with the findings
recorded by the Labour Court and Industrial Court that the Petitioner
failed to produce confiscated pockets of tobacco during enquiry. This is
not a criminal trial where charge was to be proved beyond reasonable
doubt. Therefore non-production of tobacco pouch could not have any
effect on findings recorded in inquiry. However what is missing here is
the evidence of the person who saw Respondent chewing tobacco. Since
Mr. Chaughule is not examined before the Labour Court, there is no
evidence in support of charge of chewing tobacco.
17. The next charge is about refusal to accept the communication
sought to be served on 03 May 2011 by Mr. S. M. Damle on 03 October
2011. The charge is not very serious and the evidence regarding the
charge need not be examined in detail. However the charge is to be read
in conjunction with the next charge of threatening and abusing Mr. P. V.
Manjrekar at 3:00 p.m. on 03 May 2011. Though the two charges are
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unconnected, their timings are proximate. It is sought to be contended by
Mr. Bhat that if Respondent was present near punching machine after
end of his duty on 3:00 p.m. (where he alleged to have threatened and
abused Mr. Manjrekar) how he could be summoned and present before S.
M. Damle in his office at 3:10 p.m. Evidence of Shri. Damle indicates
that at 3:00 p.m. Personnel Manager Mr. Chaughule directed Mr. Damle
to call Mr. Sonwane in the office and accordingly he sent a message to the
Respondent to visit the office. The exact time when Respondent arrived
in the office of Mr. Damle is not indicated in the evidence. However it is
contended that an attempt was made to serve letter of suspension on
Respondent as per the directions of Mr. Chaughule and that the
Respondent refused to sign and accept the same. Here the evidence of
Shri. Rakesh Vishnu Manjrekar relating to the incident which had
occurred 10 minutes before incident of refusal of letter sought to be
served by Mr. Damle is required to be taken into consideration. The
charge-sheet alleges that the Respondent’s duty schedule was from 7:00
a.m. to 3:00 p.m. on 03 May 2011. Mr. Manjrekar states that after
completing duty he approached to the out-punching point to mark his
outgoing on the punching machine and he noticed Respondent standing
near the machine. It is also alleged that at that time Respondent shouted
at Shri. Manjrekar. After shouting when Shri. Manjrekar started walking
towards Gate, Respondent threatened and abused him. Thus, the
evidence of Shri. Manjrekar indicates that Respondent was already at the
out-gate at 3:00 p.m. on 03 May 2011. However Shri. Damle claims and
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the charge-sheet alleges Respondent’s presence at Shri. Damle’s office at
3:10 p.m. Mr. Bhat submits that this is a glowering contradiction. It
cannot be stated that Shri Bhatt is entirely wrong in treating this as a
contradiction. However, this contradiction may absolve Respondent in
respect of charge of refusal to accept the letter sought to be served by
Shri. Damle at 3:10 p.m. However so far as the charge of threatening and
abusing Shri Manjrekar is concerned, there is a direct evidence in support
of that charge. The Labour Court and Industrial Court have proceeded to
disbelieve the evidence of Shri. Manjrekar on the ground that there were
other employees present near the punching machine who were not
examined to corroborate evidence of Mr. Manjrekar. In my view,
corroboration of evidence is not required in a domestic enquiry where the
charge is to be proved on the touchstone of preponderance of
probabilities. There is direct evidence of Shri. Manjrekar about threat and
abuse given to him for which he lodged police complaint on 04 May
2011. In my view, the charge of threatening and abusing Shri. Manjrekar
is clearly proved and findings recorded by the Labour Court and
Industrial Court in this regard are perverse.
18. It has come on record that the Respondent has been punished
on 9 occasions in past during the period from 1992 to 2011. The past
punishments have been taken into consideration apparently to impose
extreme punishment of dismissal from service. However, in respect of the
past misconduct, the penalties are insignificant like advice, warning or
caution. On 3 occasions he was suspended for 1 or 2 days. The past
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alleged misconduct is also in respect of long period of 19 years between
1992 to 2011.
19. The net result is that Petitioner employer was successful in
proving charges of missing from duty between 3:30 p.m. to 4:00 p.m. on
29 April 2011 and threatening and abusing Shri. Manjrekar on 03 May
2011. The charge of missing from duty for half an hour is not serious.
The charge of threatening and abusing Shri. Manjrekar is however serious
in nature. The past penalties imposed on the Respondent during long
duration of 19 years are not major. Respondent has served with the
Petitioner for substantial period of time. He has attained the age of
superannuation in the year 2017. Thus the penalty of dismissal from
service has resulted in loss of wages from 14 October 2011 till he attained
the age of superannuation in the year 2017. Considering the nature of
allegations proved against Petitioner, relief of reinstatement with full
backwages was not warranted. Respondent undoubtedly deserves same
penalty for misconduct of missing from duty and threatening and abusing
a co-employee. However, considering the long services rendered by him,
instead of depriving him of any wages during the intervening period
from dismissal till his retirement, grant of lump sum compensation would
be adequate relief to the Respondent who has undoubtedly indulged in
some misconduct. During the cross-examination a suggestion is sought to
be given to the Respondent that he was working as Cash Collecting
Officer for Twinkle Star, Wadala and was drawing Rs.10,000/- to
15,000/- per month. However the suggestion is denied by the
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Respondent. It has come on record that in the Written Statement the last
drawn wages of Respondent was Rs.16752.56 per month. In my view
therefore lump sum compensation of Rs. 5,00,000/- would meet ends of
justice in the present case.
20. Therefore I proceed to pass following order :-
i) The Judgment and Order dated 23 April 2019 passed
by the Labour Court as well as Judgment and Order dated 22
October 2019 passed by the Industrial Court are modified by
directing that Respondent would be entitled to lump sum
compensation of Rs. 5,00,000 in lieu of reinstatement or
back wages.
ii) Petitioner shall pay the amount of compensation to the
Respondent within a period of 2 months from today.
21. With the above directions the Writ Petition is partly allowed.
Rule is made partly absolute. There shall be no orders as to costs.
SANDEEP V. MARNE, J.
22. After the judgment is pronounced, the learned counsel
appearing fo the Petitioner seeks stay to the operation of the Order for a
period of 06 weeks. It is a matter of fact that petition s partly allowed in
favour of the Petitioner, the request for stay of the Judgment is therefore
rejected.
SANDEEP V. MARNE, J.
KISHOR
VISHNU
KAMBLE
Digitally signed
by KISHOR
VISHNU
KAMBLE
Date:
2023.12.22
16:34:06 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.550 OF 2020
Raptakos Breet & Company Ltd. …. Petitioner
Versus
Gajanan M. Sonawane …. Respondent
…
Ms. Uma K. Wagle , for Petitioner (VC).
Mr. Ramesh D. Bhat , for Respondent.
…
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 12 DECEMBER 2023.
PRONOUNCED ON : 22 DECEMBER 2023.
JUDGMENT:
1. Rule. Rule made returnable forthwith. With the consent of
the learned counsel appearing for parties, petition is taken up for hearing.
2. Petitioner-Employer has filed this petition challenging
Judgment and Order dated 23 April 2019 passed by the Second Labour
Court, Mumbai in Complaint (ULP) No.06 of 2012 directing payment
of 50% backwages to Respondent from 14 October 2011 till his age of
superannuation. Petitioner also challenges Judgment and Order dated 22
October 2019 passed by the Industrial Court, Mumbai dismissing it’s
Revision Application (ULP) No.72 of 2019 and allowing the
Respondent’s Revision Application (ULP) No.68 of 2019 directing
payment of full backwages to him from the date of termination till the
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age of superannuation.
3. Briefly stated, facts of the case are that Petitioner is
Pharmaceutical Company. Respondent was employed in the services of
Petitioner-Company at it’s Thane factory. A Show Cause Notice was
issued to the Respondent on 19 May 2011 and after receipt of his
explanation, Petitioner-Company initiated domestic enquiry after
issuance of charge sheet dated 24 June 2011. In the charge sheet, it was
alleged that on 29 April 2011, while being assigned duty in workshop
from 3.00 p.m. to 11.00 p.m., Respondent was found loitering in the
change room between 3.30 p.m. to 4.00 p.m. instead of being present at
his workplace. He was also found to be chewing tobacco which is strictly
prohibited in the premises of the company. For such act, an inquiry was
intended to be held on 03 May 2011 and Respondent was called on 3.10
p.m. by Shri. S. M. Damle, Executive-Personnel for issuance of Order of
suspension. However, Respondent refused to accept the letter sought to
be served on him. It was further alleged that on 03 May 2011, while
being on duty in the first shift from 7.00 a.m. to 3.00 p.m. Respondent
and other co-employers were standing near the punching machine
adjoining to personnel department at 3.00 p.m. and Respondent
threatened Mr. P. V. Manjarekar and abused him in filthy language while
he was passing by the punching machine.
4. On these charges, enquiry was proposed to be held by
appointing Mr. M. K. Jadhav as Enquiry Officer. The domestic enquiry
was held, in which respondent participated from 07 July 2011 to 29
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September 2011. The enquiry officer held Respondent to be guilty of
misconduct alleged in the charge sheet and submitted report dated 11
October 2011, which was served on Respondent. The second Show Cause
Notice was issued to him in pursuance of the findings of the Enquiry
Officer and after considering Respondent’s reply, an order dated 14
October 2011 was passed imposing punishment of dismissal from service
on the Respondent.
5. Aggrieved by the penalty of dismissal from service,
Respondent approached Labour Court, Mumbai by filing Complaint
(ULP) No. 06 of 2012. The complaint was resisted by Petitioner by filing
Written Statement. The Labour Court framed preliminary issues and
delivered part-1 Award dated 04 March 2017 holding that enquiry was
not conducted in fair and proper manner and not according to the
principles of natural justice. It also held that the findings of the Enquiry
Officer were perverse. Part-1 Award was challenged by the Petitioner by
filing Complaint (ULP) No. 42 of 2017 which came to be rejected by
order dated 23 August 2018. Both parties led evidence before the Labour
Court after delivery of part-1 Award. It appears that during pendency of
the proceedings before Labour Court, Respondent attained age of
superannuation in the year 2017. After considering the evidence, the
Labour Court proceeded to deliver part-2 Award dated 23 April 2019
partly allowing the Complaint and directing the Petitioner to pay 50%
backwages to the Respondent from the date of termination i. e. 14
October 2011 till the date of superannuation.
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6. Both Petitioner as well as the Respondent were aggrieved by
the Labour Court’s decision dated 23 April 2019. Respondent filed
Revision Application (ULP) No.68 of 2019 challenging the Labour
Court’s Award to the extent of denial of full backwages. The Petitioner-
Company, on the other hand, filed Revision Application (ULP) No.72 of
2019 challenging the entire Award. Both the Revision Applications came
to be heard together and decided by common Judgment by the Industrial
Court dated 22 October 2019. The Industrial Court proceeded to dismiss
the Revision Application (ULP) No. 72 of 2019 filed by the Petitioner. It
however allowed the Revision Application (ULP) No. 68 of 2019 filed by
Respondent and directed that the Respondent shall be entitled to full
back wages from the date of termination till the age of superannuation.
Petitioner is aggrieved by the common Judgment and Order dated 22
October 2019 passed by the Industrial Court and has filed the present
petition.
7. Ms. Wagle, the learned counsel appearing for Petitioner
would submit that the Labour Court and Industrial Court have erred in
not appreciating the fact that the dismissal order is passed on the basis of
cogent evidence on record. That Petitioner is a pharmaceutical company
and chewing of tobacco by any employee in the premises of the company
is highly dangerous. That therefore the conduct of the Respondent in
chewing of tobacco was serious in nature. On the top of said serious
charge, Respondent also threatened and abused Mr. P. V. Manjrekar. That
all charges are proved by leading evidence by the employer. That this was
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not the first time that Respondent had indulged into misconduct. That
he has been punished on 9 occasions in the past and had failed to
improve his conduct, despite being punished repeatedly. That in the past
also he was found chewing tobacco during working hours. That
threatening and abusing of higher officer is gross misconduct on the part
of the Respondent for which penalty of dismissal from service was clearly
warranted. That the Petitioner has discharged burden of leading evidence
which is sufficient for proving charge in domestic enquiry. That once
there is some evidence to prove the charge, the Industrial Court and
Labour Court could not have interfered in the penalty imposed in
enquiry. She would pray for setting aside the Orders passed by the
Labour Court and Industrial Court.
8. Per Contra Mr. Bhat, the learned counsel appearing for
Respondent would oppose the petition and support the Order passed by
the Industrial Court. He would submit that Petitioner was deliberately
implicated in false complaints for participation in union activities. He
would invite my attention to paragraph No. 4 of the affidavit of evidence
of Respondent in which evidence was led to prove that management was
not happy with the Respondent’s participation in union activities and
that therefore the company wanted to remove him from factory premises
and he was therefore transferred to registered office of company at
Nariman Point before issuance of the charge sheet. That despite there
being no work for the factory workers in the registered office, he was
deliberately kept out of factory premises. He would demonstrate
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contradictions in the charge sheet by pointing out that incident relating
to alleged threat and abuse to Mr. Manjrekar is shown at 3:00 p.m. on 03
May 2011 whereas refusal to accept communications regarding enquiry
and suspension is shown at 3:10. on same day. That there is no evidence
in the entire enquiry about the Respondent indulging in act of chewing
tobacco. That evidence of Ms. Suchita Ankolekar is hearsay and Mr.
Chaughule, who allegedly saw Respondent chewing tobacco was not
examined before the Labour Court. That the evidence of Mr. Manjrekar
is required to be ignored and has rightly been ignored as no other co-
worker is examined though several were admittedly present when the
alleged incident occurred. That Shri. Manjrekar is not a credible witness
as he has contradicted himself with regard to presence of other co-
workers in examination in chief and in the cross-examination. He would
submit that Labour Court and Industrial Court have recorded finding of
fact which need not be interfered by this Court in exercise of jurisdiction
under Article 227 of the Constitution of India. That the concurrent
findings recorded by the Labour Court and Industrial Court cannot be
interfered by this Court in absence of any perversity in the same. He
would pray for dismissal of the petition.
9. Rival contentions of the parties now fall for my
consideration.
10. Respondent faced the following broad charges in the charge
sheet dated 24 June 2011.
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i) Loitering in the change room between 3:30 p.m. to
4:00 p.m. on 29 April 2011 when required to be present on
workplace.
ii) Chewing tobacco between 3:30 p.m. to 4:00 p.m. on
29 April 2011.
iii) Refusal to accept letters of enquiry and suspension
order from Shri. S.M. Damle, Executive-Personnel at 3:10
p.m. on 3rd May 2011.
iv) Threatening and abusing Mr. P. V. Manjrekar in filthy
language at 3:00 p.m. on 3rd May 2011.
11. Since Part-I Award went against Petitioner, it examined
following witnesses to prove the above charges:-
i) Mr. M. K. Jadhav as Enquiry Officer.
ii) Shri. Prakash Vishnu Manjrekar – Packing Supervisor in
support of allegation of threat and abuse.
iii) Shri. Ravindra Rohidas Borade – Production Executive in
support of allegation of not being found at the work place at
3.30 p.m. on 29 April 2011.
iv) Shriniwas Madhusudan Damle – Personal Executive in
support of allegation of refusal to accept letter on 03 May
2011.
v) Suchita Gajanan Ankolekar – Senior Vice President
(Personnel and Material) in support of allegation of
Respondent being found chewing tobacco on 29 April 2011
and his past conduct.
12. All the management witnesses were cross-examined by the
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Respondent. The Respondent has examined himself as witness and has
been cross-examined by the Petitioner-Company.
13. I have gone through the entire evidence on record. While
exercising jurisdiction under Article 227 of the Constitution of India over
findings recorded by the Labour Court in its Original Jurisdiction and by
the Industrial Court in its Revisional Jurisdiction under Section 44 of the
Maharashtra Recognition of Trade Unions & Prevention of Unfair
Labour Practices Act, 1971, this Court cannot sit in Appeal over the said
findings. The role of this Court is restricted essentially to find whether
there is any perversity in the findings recorded by the Labour Court or
Industrial Court. Keeping this limited scope in mind, I proceed to
examine the evidence led by the Petitioner to prove charges before the
Labour Court to examine whether the findings of the Labour Court and
Industrial Court can be sustained.
14. The first charge is about loitering in the change room and not
being present at the workplace between 3:30 p.m. to 4:00 p.m. on 29
April 2011. The evidence of Ravindra Rohidas Borade show that
Respondent was not found at his workplace at 3:30 p.m. The witness has
deposed that at least 05 workmen are required to be present at the filling
and packing section for operation of machines and that absence of even
one leads to non-functioning of the machines. The witness has deposed
that on account of Respondent’s absence at the place of work, the work
was held up for half an hour between 3:30 p.m. to 4:00 p.m. The witness
has further deposed that he later noticed presence of Respondent at about
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4:15 p.m. Thus, the charge of missing from the place on duty is proved
by evidence of Mr. Ravindra Rohidas Borade. Though cross-examination
of the witness is conducted and admission is sought to be extracted from
the witness to demonstrate that the production did not suffer on 29 April
2011, the witness further clarified that the production is part of
teamwork. Therefore it cannot be inferred that mere non-effect on
production would absolve Respondent of the charge of missing from the
workplace on 29 April 2011.
15. The Labour Court and Industrial Court have proceeded to
discard the evidence of Shri. Borade on account of absence of proof of
less production on account of non-presence of Respondent during 3:30
p.m. to 4:00 p.m. on 24 June 2011. To my mind, the said findings of the
Labour Court and Industrial Court are perverse. Whether Petitioner’s
absence from duty led to reduce production is a totally irrelevant factor.
Respondent was charged with the misconduct of missing from duty
between 3:30 p.m. to 4:00 p.m. on 29 April 2011 and the said charge has
been proved. Weather such conduct had effect on production is an
altogether different aspect.
16. The next charge leveled against Petitioner is about chewing
tobacco when he found loitering near change room between 3:30 p.m. to
4:00 p.m. on 29 April 2011. Here the evidence of Smt. Suchita Ankolekar
indicates that the act of chewing tobacco was noticed by Mr. Chaughule,
Manager-Personnel and Administration. Though Mr. Chaughule was
examined in the enquiry, the Petitioner did not examine Mr. Chaughule
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before the Labour Court possibly because he had left the employment by
that time. Thus the evidence of Smt. Suchita Ankolekar about chewing
tobacco is hearsay. Though ordinarily hearsay evidence is not allergic to
domestic enquiry as has been held by the Apex Court in it’s Judgment in
State of Haryana v. Rattan Singh , (1977) 2 SCC 491, it would be
dangerous to accept the testimony of Smt. Ankolekar who was posted in
Petitioner’s Nariman Point office and was giving evidence about
happening of an incident in Thane factory premises. She has not
recorded any statement of the witness who saw Respondent chewing
tobacco. At the same time, I am not fully convinced with the findings
recorded by the Labour Court and Industrial Court that the Petitioner
failed to produce confiscated pockets of tobacco during enquiry. This is
not a criminal trial where charge was to be proved beyond reasonable
doubt. Therefore non-production of tobacco pouch could not have any
effect on findings recorded in inquiry. However what is missing here is
the evidence of the person who saw Respondent chewing tobacco. Since
Mr. Chaughule is not examined before the Labour Court, there is no
evidence in support of charge of chewing tobacco.
17. The next charge is about refusal to accept the communication
sought to be served on 03 May 2011 by Mr. S. M. Damle on 03 October
2011. The charge is not very serious and the evidence regarding the
charge need not be examined in detail. However the charge is to be read
in conjunction with the next charge of threatening and abusing Mr. P. V.
Manjrekar at 3:00 p.m. on 03 May 2011. Though the two charges are
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unconnected, their timings are proximate. It is sought to be contended by
Mr. Bhat that if Respondent was present near punching machine after
end of his duty on 3:00 p.m. (where he alleged to have threatened and
abused Mr. Manjrekar) how he could be summoned and present before S.
M. Damle in his office at 3:10 p.m. Evidence of Shri. Damle indicates
that at 3:00 p.m. Personnel Manager Mr. Chaughule directed Mr. Damle
to call Mr. Sonwane in the office and accordingly he sent a message to the
Respondent to visit the office. The exact time when Respondent arrived
in the office of Mr. Damle is not indicated in the evidence. However it is
contended that an attempt was made to serve letter of suspension on
Respondent as per the directions of Mr. Chaughule and that the
Respondent refused to sign and accept the same. Here the evidence of
Shri. Rakesh Vishnu Manjrekar relating to the incident which had
occurred 10 minutes before incident of refusal of letter sought to be
served by Mr. Damle is required to be taken into consideration. The
charge-sheet alleges that the Respondent’s duty schedule was from 7:00
a.m. to 3:00 p.m. on 03 May 2011. Mr. Manjrekar states that after
completing duty he approached to the out-punching point to mark his
outgoing on the punching machine and he noticed Respondent standing
near the machine. It is also alleged that at that time Respondent shouted
at Shri. Manjrekar. After shouting when Shri. Manjrekar started walking
towards Gate, Respondent threatened and abused him. Thus, the
evidence of Shri. Manjrekar indicates that Respondent was already at the
out-gate at 3:00 p.m. on 03 May 2011. However Shri. Damle claims and
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the charge-sheet alleges Respondent’s presence at Shri. Damle’s office at
3:10 p.m. Mr. Bhat submits that this is a glowering contradiction. It
cannot be stated that Shri Bhatt is entirely wrong in treating this as a
contradiction. However, this contradiction may absolve Respondent in
respect of charge of refusal to accept the letter sought to be served by
Shri. Damle at 3:10 p.m. However so far as the charge of threatening and
abusing Shri Manjrekar is concerned, there is a direct evidence in support
of that charge. The Labour Court and Industrial Court have proceeded to
disbelieve the evidence of Shri. Manjrekar on the ground that there were
other employees present near the punching machine who were not
examined to corroborate evidence of Mr. Manjrekar. In my view,
corroboration of evidence is not required in a domestic enquiry where the
charge is to be proved on the touchstone of preponderance of
probabilities. There is direct evidence of Shri. Manjrekar about threat and
abuse given to him for which he lodged police complaint on 04 May
2011. In my view, the charge of threatening and abusing Shri. Manjrekar
is clearly proved and findings recorded by the Labour Court and
Industrial Court in this regard are perverse.
18. It has come on record that the Respondent has been punished
on 9 occasions in past during the period from 1992 to 2011. The past
punishments have been taken into consideration apparently to impose
extreme punishment of dismissal from service. However, in respect of the
past misconduct, the penalties are insignificant like advice, warning or
caution. On 3 occasions he was suspended for 1 or 2 days. The past
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alleged misconduct is also in respect of long period of 19 years between
1992 to 2011.
19. The net result is that Petitioner employer was successful in
proving charges of missing from duty between 3:30 p.m. to 4:00 p.m. on
29 April 2011 and threatening and abusing Shri. Manjrekar on 03 May
2011. The charge of missing from duty for half an hour is not serious.
The charge of threatening and abusing Shri. Manjrekar is however serious
in nature. The past penalties imposed on the Respondent during long
duration of 19 years are not major. Respondent has served with the
Petitioner for substantial period of time. He has attained the age of
superannuation in the year 2017. Thus the penalty of dismissal from
service has resulted in loss of wages from 14 October 2011 till he attained
the age of superannuation in the year 2017. Considering the nature of
allegations proved against Petitioner, relief of reinstatement with full
backwages was not warranted. Respondent undoubtedly deserves same
penalty for misconduct of missing from duty and threatening and abusing
a co-employee. However, considering the long services rendered by him,
instead of depriving him of any wages during the intervening period
from dismissal till his retirement, grant of lump sum compensation would
be adequate relief to the Respondent who has undoubtedly indulged in
some misconduct. During the cross-examination a suggestion is sought to
be given to the Respondent that he was working as Cash Collecting
Officer for Twinkle Star, Wadala and was drawing Rs.10,000/- to
15,000/- per month. However the suggestion is denied by the
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Respondent. It has come on record that in the Written Statement the last
drawn wages of Respondent was Rs.16752.56 per month. In my view
therefore lump sum compensation of Rs. 5,00,000/- would meet ends of
justice in the present case.
20. Therefore I proceed to pass following order :-
i) The Judgment and Order dated 23 April 2019 passed
by the Labour Court as well as Judgment and Order dated 22
October 2019 passed by the Industrial Court are modified by
directing that Respondent would be entitled to lump sum
compensation of Rs. 5,00,000 in lieu of reinstatement or
back wages.
ii) Petitioner shall pay the amount of compensation to the
Respondent within a period of 2 months from today.
21. With the above directions the Writ Petition is partly allowed.
Rule is made partly absolute. There shall be no orders as to costs.
SANDEEP V. MARNE, J.
22. After the judgment is pronounced, the learned counsel
appearing fo the Petitioner seeks stay to the operation of the Order for a
period of 06 weeks. It is a matter of fact that petition s partly allowed in
favour of the Petitioner, the request for stay of the Judgment is therefore
rejected.
SANDEEP V. MARNE, J.
KISHOR
VISHNU
KAMBLE
Digitally signed
by KISHOR
VISHNU
KAMBLE
Date:
2023.12.22
16:34:06 +0530
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