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2000 DIGILAW 362 (BOM)

Jagrajsing v. Anglo American Marine Co. Ltd.

2000-06-08

R.J.KOCHAR

body2000
JUDGMENT : R.J. KOCHAR, J. 1. The petitioner workman has challenged the award Part II dated 10th June, 1987 passed by the Labour Court in Reference IDA No. 19 of 1982. By its award Part-I the Labour Court has held the inquiry to be fair and proper and findings not being perverse but based on material and evidence on record in respect of the charge-sheet dated 17th May, 1981. In respect of the charge-sheet issued against the petitioner on 1st August, 1981 the Labour Court has recorded a finding that though the inquiry was fair and proper the findings were perverse. The Respondent Company has not challenged the same finding of the Labour Court holding that the findings of the Inquiry Officer were perverse. After recording the aforesaid findings the Labour Court has considered the question of punishment under section 11-A of the Industrial Disputes Act in its Part-11 award. The Labour Court has converted the order of dismissal into an order of discharge, meaning thereby that the punishment of dismissal was reduced to the punishment of discharge. It appears that to give some amount of compensation the Labour Court has computed the amount of compensation on the basis of the principles of retrenchment and has directed payment of monetary benefits on par with retrenchment compensation as if he was discharged simplicity. The Labour Court has given its own reasons for interfering with the order of dismissal in paragraph 3 of its Part-11 award. The Labour Court has considered the fact that there were two charge-sheets issued against the petitioner workman and out of the two charge-sheets one charge-sheet has virtually failed and, therefore, he appears to have taken a proportionality of the punishment arithmetically. According to him, when the order of dismissal was passed by the company for two acts of misconduct, out of which one has failed, the order of dismissal should not stand. The second aspect which the Labour Court appears to have considered is that the past record of the workman was taken into consideration by the company. It appears that the Labour Court carried an impression in its mind that the order of dismissal was the cumulative effect of the two charges and his past record. According to the Labour Court, if one charge-sheet has failed the punishment of dismissal also should be reduced. It appears that the Labour Court carried an impression in its mind that the order of dismissal was the cumulative effect of the two charges and his past record. According to the Labour Court, if one charge-sheet has failed the punishment of dismissal also should be reduced. Considering this logic the Labour Court has converted the order of dismissal into an order of discharge simpliciter and has directed the company to pay the petitioner retrenchment benefit by way of compensation. The company has not challenged the said award and has offered the amount of retrenchment compensation to the petitioner who has refused to accept the same. The amount of such compensation computed by the company and offered to the petitioner workman was to the tune of Rs. 2,838, which included one month's wages in lieu of notice. 2. By a charge-sheet dated 17th May, 1981 the Petitioner as charged of an assault on a casual worker who was walking towards the factory to report for work at about 8.15 A.M. on 9th April, 1981. It is alleged against the petitioner that he along with one Sri P.K. Bhole stopped him outside the gate of the factory and assaulted and beat up the casual worker (Sri Nerkar) because he was reporting for work during the strike period. The Petitioner was, thus, charged of misconducts of having committed the acts of violence, riotous and disorderly behaviour having a bearing on the working of the factory and commission of an act subversive of discipline. The Petitioner was called upon to submit his explanation which he submitted by his letter dated 21st May, 1981 denying the charges being false and fabricated. He even flatly denied the fact that on the alleged day he ever came near the factory and further he never knew who the casual workman was and that he did not know him at all. 3. The further alleged against the company that he was tried to be victimised and maligned as he was an active trade union worker. Since the petitioner had denied the charges the company had instituted a departmental inquiry against him in the charges. In the inquiry, he was defended by an office-bearer of his union. During the pendency of the said inquiry a second charge-sheet came to be served on him on 18th August, 1981. Since the petitioner had denied the charges the company had instituted a departmental inquiry against him in the charges. In the inquiry, he was defended by an office-bearer of his union. During the pendency of the said inquiry a second charge-sheet came to be served on him on 18th August, 1981. whereby it was alleged against him that he had gone to the house of one of the employees and threatened his wife and also asked for money for union. On the very same day, i.e., 8th June, 1981 he had also gone to other workman and threatened him with dire consequences if he did not give money for union. The company had, therefore, called upon him to submit his explanation which he submitted by him letter dated 7th July, 1981 denying the charges. It is this second charge-sheet which appears to have failed as the Labour Court has held the findings of the inquiry officer in this charge-sheet as baseless and perverse. The company has passed an order of dismissal on 25th November, 1981 after receiving the report and findings of the Inquiry Officer holding the petitioner guilty of the charges levelled against him in both the charge-sheets. 4. Aggrieved by the aforesaid order of dismissal the petitioner raised an industrial dispute which was referred for adjudication to the Labour Court by the Industrial dispute which was referred for adjudication to the Labour Court by the State Government. The Petitioner challenged the order to dismissal being illegal, improper and an act of victimisation; he being an active trade union worker. On the basis of the pleadings filed by both the parties the Labour Court, by its Part-I award held that the domestic inquiry in the charge-sheet dated 17th May, 1981 was fair and proper. The Labour Court also held that the procedural part of the inquiry in the second charge-sheet dated 18th August, 1981 legal and proper but the findings recorded by the Inquiry Officer did not flow from the evidence of the said enquiry and, therefore, he struck down the said inquiry being not fair and proper. 5. The findings of the Labour Court holding the inquiry in the charge-sheet dated 17th May, 1981 to be fair and proper are not challenged by the Petitioner. It is also significant to note that he did not enter into the witness box to substantiate his charges against the inquiry. 5. The findings of the Labour Court holding the inquiry in the charge-sheet dated 17th May, 1981 to be fair and proper are not challenged by the Petitioner. It is also significant to note that he did not enter into the witness box to substantiate his charges against the inquiry. The Labour Court, in its Part-I I award, has held the punishment of dismissal warranted interference under Section 11-A of the Industrial Disputes Act, 1947. As I have already mentioned hereinabove that the Labour Court has taken into account two main factors to reduce the gravity of the order of dismissal i.e., the failure of the second charge and the past record of the workman. I fail to understand how the past record of the workman can be ignored while assessing the proportionality of the punishment. That is certainly an important factor to consider the gravity or extenuating circumstances to interfere with the order of punishment. It can, however, be never said that a workman with a long meritorious and clean service gets a licence to commit any serious act of misconduct and get away without any punishment merely because his past record was clean. If an act of misconduct, which is proved, is serious enough to attract the extreme punishment of dismissal in that case the clean record of the workman would not come to his help. The order of punishment is passed for a proved misconduct committed by the workman. There are situations where some technical lapses are alleged against a workman with a long meritorious and clear service. In such cases, extreme punishment of dismissal would certainly be interfered with considering ail the facts and circumstances of the case. In the present case, the past record of the workman was certainly bad as there were warnings or previous misconducts committed by him. Even the allegations made by the company in the second charge-sheet would also form his past record, though technically he might have succeeded in getting an order from the Labour Court that the findings of the Inquiry Officer in that charge-sheet were perverse. However, considering independently the charge levelled against him in the charge-sheet dated 17th May, 1981 the order of dismissal, according to me, is legal and proper. However, considering independently the charge levelled against him in the charge-sheet dated 17th May, 1981 the order of dismissal, according to me, is legal and proper. If a casual workman, who gets his wages every day and his family and children wait till he comes back with some money in his pocket to get the evening food and if he is assaulted at the gate of the factory itself and if he is not allowed to enter the factory he loses the whole day's wages and goes home empty handed. He could not have told the company to pay him wages as he had already come up to the gate of the factory but was unlawfully prevented by the Respondent. The petitioner and his union and no other workman had any right to stop the workers at the entry gate to prevent them from entering into the factory to join their duties. The petitioner, along with his friend, not only assaulted the poor casual workman at the factory gate but by doing so they had created terror amongst other workmen who might have been similarly waiting to join the duties to earn some daily wages. To assault the co-workman is no trade union activity. This charge, by itself, is a serious charge warranting an extreme punishment of dismissal. The workman cannot indulge into such acts of violence to justify their strike. According to me, there was no valid reason for the Labour Court to have interfered with the order of punishment of dismissal of the petitioner from employment. The company, however, has not challenged the said part of the order. On the contrary, the company has offered the amount of compensation to the petitioner workman. Since the company has not challenged that part of order, converting the order of dismissal into the order of discharge simpliciter, I do not want to interfere with the said order of the Labour Court. 6. Sri Powar has fairly submitted that even today the company is prepared to pay the said amount of retrenchment compensation and notice wages if the petitioner accepts the same. Sri Joshi, the learned Advocate for the petitioner, however, submits that his client is still unemployed and he is willing to get reinstatement without back-wages. 7. Though Sri Powar has himself offered an amount of Rs. Sri Joshi, the learned Advocate for the petitioner, however, submits that his client is still unemployed and he is willing to get reinstatement without back-wages. 7. Though Sri Powar has himself offered an amount of Rs. 3,000 (rounded off) that would not be a just figure to be suggested to the petitioner to accept as that was the amount computed on the basis of the award dated 10th June, 1987. After lapse of 13 years the petitioner cannot be told to accept the same amount, though he alone is to be blamed for not accepting the said amount when it was offered to him. It would be in the interest of justice to recommend to the company to pay an amount of Rs. 20,000 (rupees twenty thousand only) as compensation to the petitioner if he is ready and willing to accept the same. If he writes to the company that he would be ready and willing to accept the aid amount of Rs. 20,000, in full and final settlement of his claim in the present petition, the company should immediately, within two weeks from receipt of the said letter, pay that amount to the petitioner through Sri A.H. Joshi, learned Advocate for the petitioner. This offer, however, would be for a period of eight weeks from today. 8. In the aforesaid circumstances, there is no substance in the petition and the same fails. Rule is discharged with no orders as to costs. 9. Petition Dismissed.