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2003 DIGILAW 511 (GUJ)

Jayantilal R. Chauhan v. Jamnagar Foundry Works

2003-09-02

H.K.RATHOD

body2003
H. K. RATHOD, J. ( 1 ) HEARD learned advocate Ms. Thakkar for the petitioner and Ms. Pahwa for the respondent in this petition under article 227 of the Constitution of India. ( 2 ) IN this petition, the petitioner his challenged the award made by the labour court, Jamnagar dated 6. 10. 1992 in reference No. 1575 of 1990 and 1592 of 1990 wherein the labour court has rejected the reference of the concerned workman shri Jayantilal Ramjibhai Chauhan and has partly allowed the reference of the other workman Oghubha Adabha namely reference (LCJ) No. 1592 of 1990 (Old reference (LCJ) No. 660 of 1989 and has directed the first party Jamnagar Foundry works to pay 40 per cent of the back wages to the said workman by treating his service as continuous as his age was of sixty years. ( 3 ) DURING the course of hearing, it was submitted by the learned advocate Ms. Krina Thakkar on behalf of the petitioner that in reality and in substance, there is no much difference agaist pettioner in respect of the charges levelled by the respondents against the petitioner. According to her, It was a mere consequence of degree of aggrerassive mood having some difference between two workman; the petitioner is having aggressive mood in comparision to the other workman Oghubha Adabha. She also submitted that the decision considered by the labour court in the matter VED prakash V. M/s. DELTON CABLE india (P) LTD. repoted in AIR 1984 SC 914 is squarely applicable to the facts the present petitioner but the labour court has not properly appreciated that aspect of the matter. According to her submission, the labour court has erred in not applying the principles laid down by the Honble Apex court in the aforesaid decision in the facts of the present case, She has submitted the labour court has committed serrious error in not taking into consideration more than 30 years service service record with unblemish past and, therefore, the labour court has committed serious error which is required to be corrected by this court. On the other hand, learned advocate ms. Sangeeta Pahwa appearing for Mr. On the other hand, learned advocate ms. Sangeeta Pahwa appearing for Mr. P. M. Thakkar for the respondent has submitted that the labour court was right in rejecting the reference of the petitioner after considering the gravity of the misconduct alleged to have been committed by the petitioner while considering the references of both the workmen. According to her submission, in the matter of petitioner, it was not a mere use of filthy language but there was some effort made for assault against the superior officer and, therefore, that was rightly considered as a serious misconduct and, therefore, labour court was right in rejecting the reference of the petitioner. It was also submitted by her that once the labour court has exercised the powers under section 11-A of the industrial Disputes Act, 1947 after appreciating the facts on record, then, this court cannot exercise the powers under article 227 of the Constitution of India. Thus, according to her submission, there is no substance in this petition and the same is, therefore, required to be dismissed will, costs. ( 4 ) I have considered the Submissions made by the learned advocates for the parties. I have also persued the award made by the labour Court, Paragraph 15 thereof in Particular, which is under challenge before this court. In paragraph 15 of the impugned awad, the Labour court has discussed alleged misconduct of both the workmen. First of all, the labour court has considered the misconduct alleged to have been committed by the present petitioner namely Jayantilal Ramjibhai. As per Exh. 15, he was given the charge sheet wherein it has been alleged against the petitioner that the petitioner abused gagjibhai as well as Hanubha, supervisor; the petitioner gave push to the Engineer ravi while saying that he (Engineer) should go; the petitioner also abused the mistry Jagjivanbhai. These were the charges levelled against the petitioner which have been discussed in para 15 of the impugned award. ( 5 ) THEREAFTER, in para 25 of the impugned award, the labour court has discussed the misconduct alleged by the another workman Oghubha Ababha. He was served with the charge sheet at Exh. 17 wherein it has been alleged that since last some days, he is not doing any work; he is not obeying instructions of anybody. ( 5 ) THEREAFTER, in para 25 of the impugned award, the labour court has discussed the misconduct alleged by the another workman Oghubha Ababha. He was served with the charge sheet at Exh. 17 wherein it has been alleged that since last some days, he is not doing any work; he is not obeying instructions of anybody. Mainly it has been alleged against his that while the Mistry Jagjivan was Instructing one workman Jeraj Ravji that he should do his work properly, said workman Oghubha ababha left his work and threatened the said Mistry that he should not say anything to Jeram and used filthy language against the Mistry. It has also been alleged against the said workman that while the Engineer Shri Ravi had come and had asked the said workman to go in his department, the workman caught the hand of the Engineer Shri Ravi and said as to what was his concern and thereafter the workman had become ready to take quarrel and fight with the Mistry jagjivan; while the Engineer Shri Ravi and the Mistry Jagjivan had come in the office near Keshubhai, then, he had misbehaved with Keshubhai also. Thus, looking to the charges levelled against both the workmen as per Exh. 15 and 17 as discussed by the labour court in the impugned award, almost similar charges were levelled against them. Considering the bare allegations levelled which were ultimately found to have been proved by the labour court against both the workmen, according to my opinion, the charges were similar regarding taking of quarrel with superior And use of filthy language with staff etc. were against both the workmen. However, in respect of the workmen Oghubha, the labour court has exercised the powers under section 11a of the ID Act, 1947 and in respect of the present petitioner, the labour court refused to exercise such powers on the ground that in respect of the present petitioner, serious allegations were made and the other workman Oghubha, there were no such serious charges and, therefore, the labour court exercised the powers under section 11a of the ID Act, 1947. These findings given by the labour court are contrary to the record. Looking to the charges levelled against the present petitioner and the said workman as per the charge sheet at Exh. These findings given by the labour court are contrary to the record. Looking to the charges levelled against the present petitioner and the said workman as per the charge sheet at Exh. 15 and 17, they are almost similar wherein both have used filthy language to a common persons and, therefore, according to my opinion, reason given by the labour court for distinguishing the case of the petitioner from the case of the said workman Oghubha are not cogent and convincing so far as the charges against both of them are concerned. ( 6 ) IT is necessary to note one move important aspect that while giving relief in favour of Oghubha, the labour court has discussed the decision of the Supreme court In the matter of VED PRAKASH V. HIS. DELTON CABLE INDIA (P) LTD. reported in AIR 1984 SC 914 and has applied the principles laid down by the apex court in the said decision in respect of the said workman Oghubha but has refused to apply it in the case of the present petitioner only on the ground that the charges levelled against the petitioner are serious in nature and, therefore, that, decision would not apply to the case of the petitioner. According to my opinion, the labour court has not read the entire judgment of the Supreme Court in its proper perspective. Here head notes were read and applied by the labour court. If the entire judgment would have been read in its proper perspective, this mistake would not have been committed by the labour court, According to my opinion, while considering as to whether the punishment imposed by the employer looking to the gravity of misconduct is proportionate or not, in case if the punishment of dismissal has been imposed by the employer, whether the employer is justified in imposing such a harsh and extreme punishment or not. While considering as to whether the punishment imposed by the employer proportionate or not looking to the gravity of misconduct alleged against the workman, it is necessary for the labour court to consider the compelling circumstances for which the misconduct has been committed by the workman, length of service of such a workman, his past record as well as the surrounding circumstances including the economical and social back ground of the workman. These relevant facts required to be considered by the Labour court were not considered by the Labour court while considering the case of the petitioner. This issue was examined by the Honble supreme Court in the matter of VED prakash V. M/s. DEMON CABLE india (P) LTD. reported in AIR 1984 SC 914 . The observations made by the apex court in para 13 of the said decision which are relevant for the purpose of present petition are reproduced as under:"13. THE finding of the Labour Court that the enquiry was fair and proper in the light of its own finding that the enquiry officer failed to summon the necessary witnesses and rejected the request of the appellant for challenging the witnesses could not be stated to be correct. On the merits some witnesses were exnamined on the side of the management before the Labour Court and they are S. K. Bagga, MW-2, Hiralal, mw 3, Deep Chand, MW-4 and Laxmi chand, MW-5 an Accountant of M/s. Gurumukh Dana, MW 2 has deposed about the appellant abusing Durg Singh who according to the appellant was the secretary of a Labour Union while the appellant and others were trying to canvass membership for a rival trade union. MW-3 and 4 are stated to have corroborated the evidence of MW-2. MW- 5 is the only independent witness examined on the side of the management. It in seen from the judgment of the Labour Court relating to the merits of the case that MW-5 who has deposed about the challans Exts. M-7 and m-8 having been returned to the person who accompanied him from the department had not supported the management that the appellant abused durg Singh or any other person within the premises of the factory. It is also seen from the judgment of the Labour Court that though the appellant had produced before the Enquiry officer 5 sheets of papers with the signatures of about 100 workmen of the factory in support of the statement that the appellant had not abused anyone in the factory during the course of his service and the management had produced Exts. M-6, a list of 90 parsons before the Enquiry officer, he had not called any of those persons to ascertain the truth regarding the alleged abuse of Durg Singh and S. K. Bagga by the appellant. M-6, a list of 90 parsons before the Enquiry officer, he had not called any of those persons to ascertain the truth regarding the alleged abuse of Durg Singh and S. K. Bagga by the appellant. It in also seen from the judgment of the Labour Court that the appellant has not given a list of the managements is witnesses before the commencement of the domestic enquiry. In these circumstances, we are of the opinion that the conclusion of the Labour court that the Enquiry officer had not acted properly in the proceedings and that he had not given full opportunity to the appellant as required by law does not call for any interference. The charge levelled against the appellant in not a serious one and it is not known-how the charge even if proved would result is any much less total loss of confidence of the management in the appellant as the management would have it in the charge. It was argued in the Labour Court that there was no previous adverse remark against the appellant. There is nothing on record to show that any previous adverse remark against the appellant had been taken into consideration by the management fur awarding the extreme penalty of dismissal front service to the appellant even if he had in fact abused in filthy language Durg Singh and S. K. Bagga. We are therefore of the opinion that the punishment awarded to the appellant is shockingly disproportionate regard being had to the charqes framed against him. We are also of the opinion that no responsible employee would ever impose in like circumstances, the punishment of dismissal to the employee and that victimization or unfair labour practice could well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of a abuse of some worker or officer of the management, by the appellant within the premises of the factory. We therefore hold that the termination of the appellants service is invalid and unsustainable in law, and that he is entitled to reinstatement with full back wages and other benefits including continuity of service. The appeal is allowed accordingly with costs quantified at Rs. 1,000. The writ petition is dismissed without costs. We therefore hold that the termination of the appellants service is invalid and unsustainable in law, and that he is entitled to reinstatement with full back wages and other benefits including continuity of service. The appeal is allowed accordingly with costs quantified at Rs. 1,000. The writ petition is dismissed without costs. " ( 7 ) THE apex court has believed that the charge levelled against the workman therein were proved but the apex court has considered that the punishment awarded to the appellant therein is shockingly disproportionate regard being had to the charge levelled against the appellant and has, therefore, held that no responsible employer would ever impose in like circumstances the punishment of dismissal to the employee and that victimization or unfair labour practice could well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of A abuse of some worker or officer of the management by the appellant within the premises of the factory and has, therefore held that the termination of the appellants service is invalid and unsustainable in law, and that he is entitled to reinstatement with full back wages and other benefits including continuity of service. In the facts of the present case and looking to the charges levelled against the present petitioner and comparing the same with the charge of the another workman Shri Oghubha, I am of the opinion that though the charges were similar to each other, though past record was not adverse as no submission in that regard has been made, the labour court has distinguished the case of the present petitioner from the case of the other workman Oghubha and has, on that ground, refused to apply the ratio of the aforesaid decision in the matter of present petitioner. And in my opinion, in doing so, the labour court has comitted grave error, I am of the clear opinion that this punishment imposed upon the petitioner was highly disproportionate to the charge levelled against the petitioner. The labour court has not considered the past record of the petitioner properly while refusing to exercise the powers under section IIA of the ID Act. The labour court has not considered the past record of the petitioner properly while refusing to exercise the powers under section IIA of the ID Act. The labour court has not considered the compelling circumstances for which the misconduct has been committed by the petitioner, length of service of the petitioner, his past record as well as the surrounding circumstances including the economical and social background of the workman, These relevant facts required to be considered by the labour court were not considered by the labour court while considering the case of the petitioner. ( 8 ) IN view of these facts, since there is no any difference whatsoever between, the charges levelled against the present petitioner and the said workman Shri oghubha, I am of the opinion that the labour court is not Justified in refusing to exercise the powers under section 11a of the Act. Like Oghubha, the petitioner is also likely to reach the age of superannuation and according to my opinion, the petitioner is also entitled to the similar relief as has been granted in favour of the said workman Shri Oghubha but making such difference in respect of back wages, instead of 40 per cent, I am of the opinion that it would be just and proper if 30 per cent awarded towards such back wages in the fact and circumstances of the case. ( 9 ) IN the result, for the aforesaid discussion, this petition is partly allowed. The award made by the labour court in reference No. 1575 of 1990 (old No. 642 or 1939) dated 6. 10. 1992 in respect of the present petitioner Shri. Jayantilal R. Chauhan is hereby quashed and set aside and the said reference of the present petitioner is hereby allowed with a direction to the present respondent be consider the present petitioner in service upto the age of his superannuation and to pay him back wages at the rate of 30 per cent for the intervening period from the date of his termination till the date of his superannuation, within the period of three months from the date of receipt of copy of this order. Rule is made absolute in terms indicated hereinabove with no order as to costs. .