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2018 DIGILAW 789 (GUJ)

Havmor Ice Cream Ltd v. Manoj Atmaram Solanki

2018-06-27

MOHINDER PAL

body2018
JUDGMENT : Mohinder Pal, J. This common order will dispose of four petitions being SCA No. 14383/2008, 15771/2008, 11862/2009 and 12405/2009 since they arising out of the same incident which has taken place in the year 2002. 2. Special Civil Application No. 14383/2008 to be treated the main petition which is filed against the award dated 31.3.2008 passed by the Labour Court, Ahmedabad in Reference (LCA) No. 604/2002 granting reinstatement with 20% backwages to the worker Manoj Atmaram Solanki respondent no. 1 herein. The same award has been challenged by respondent no. 2 herein - Askme Enterprise against reinstatement with 20% backwages by filing Special Civil Application No. 15771/2008. 3. Special Civil Application Nos. 11862/2009 and 12405/2009, have been filed by two other workers challenging the award dated 4.2.2008 passed in Reference (LCA) No. 605/2002 and Reference (LCA) No. 606/2002, vide which, the Labour Court has rejected the references made against the termination of their service pertaining to the same incident which has taken place in the year 2002. 4. Brief facts giving rise to the aforementioned petitions are that the petitioner of SCA No. 14383/2008 is a company incorporated under the Companies Act, 1956. It was engaged in manufacturing and marketing of Ice creams under the brand name of "Havmor". The respondent no. 2 is the contractor engaged by the petitioner-company and respondent no. 1 Manoj Atmaram Solanki along with other workers were employed as "helper" by respondent no. 2 contractor. A show-cause notice-cum-charge sheet came to be issued by the employer (respondent no. 2) dated 8.2.2002 for gross and serious misconduct of committing act subversive of discipline and sexual harassment of Production Manager Smt. Chitra Iyer. The respondent no. 2- contractor conducted inquiry against the workers. Smt. Chitra Iyer, Production Manager, Vinodsinh Jadav and Kailash Gandhiyal were examined as witnesses. However, evidence of Shri Vinodsinh Jadav was struck off as he did not come for cross examination. No defence witnesses were examined by the respondent no. 1- worker, but he gave defence statement before the Inquiry officer. On the basis of the evidence adduced by the parties, the Inquiry Officer submitted his report dated 10.5.2002, in which, he held the charges levelled against the respondent no. 1 and other workers as proved. These workers were issued show-cause notices against the proposed penalty of dismissal and eventually the order of dismissal was passed by respondent no. 2 contractor. 5. 1 and other workers as proved. These workers were issued show-cause notices against the proposed penalty of dismissal and eventually the order of dismissal was passed by respondent no. 2 contractor. 5. After being dismissed from service, the workmen of SCA No. 14383/2008 and 15771/2008, have raised an industrial dispute challenging the dismissal, both, against him as well as against respondent no. 2. At his instance, the Assistant Commissioner of Labour made the Reference on 29.7.2002 against the petitioner and the respondent no. 2 for adjudication of the dispute for reinstatement in service with full back wages. The reference came to be numbered as Reference (LCA) No. 604/2002. 6. Before the Labour Court, respondent no. 1 workman filed statement of claim (Exh.5) alleging that he was working as "helper" in Production Department in the contract of respondent no. 2 with the petitioner company. He further alleged that the said contract of respondent no. 2 was paper arrangement and camouflage. It was further alleged that the workmen employed by the petitioner-company had organized themselves and had formed Union against the alleged exploitation by the petitioner company, and the petitioner, therefore, with a view to break the Union, fabricated charges against the four workmen and made show of conducting inquiry and have dismissed them from service. It was further allegation that the inquiry conducted against him and other workers was in breach of principles of natural justice and findings recorded by the Inquiry Officer were distorted in favour of the company and on the basis of such inquiry, he has been dismissed from service. 7. The present petitioner filed written statement, in which, the allegations were denied. It was submitted that the respondent no. 1 was workman employed by respondent no. 2 -contractor, and that, as per the information of the petitioner, he was dismissed from service for the misconduct proved in the inquiry held in accordance with law and principles of natural justice. There was no employer-employee relationship between the petitioner and respondent no. 1 - worker and the reference made against the petitioner-company was untenable. It has been submitted that the petitioner-company has been wrongly joined as party to the reference, and therefore, the reference qua it, deserves to be dismissed. 8. The respondent no. 2-contractor also filed separate written statement, wherein, it has been stated that the respondent no. 1 - worker and the reference made against the petitioner-company was untenable. It has been submitted that the petitioner-company has been wrongly joined as party to the reference, and therefore, the reference qua it, deserves to be dismissed. 8. The respondent no. 2-contractor also filed separate written statement, wherein, it has been stated that the respondent no. 1 -worker was dismissed from service for misconduct proved in the inquiry in accordance with the principles of natural justice. It has been submitted that at the time of inquiry, full opportunity has been given to the worker to rebut the allegations and has stated that the respondent no. 1 -worker in his statement of claim, challenged the legality and propriety of the inquiry held against him by the respondent no. 2, he later on filed purshish at Ex. 38, in which, he admitted the legality and propriety of the inquiry but challenged the finding of the Inquiry Officer as perverse. 9. The Labour Court while taking into account the evidence adduced by the parties, decided the reference in favour of respondent no. 1 worker and allowed the claim to reinstate the worker with continuity of service and 20% back wages along with Rs. 2000/- as costs. 10. Learned counsel for the petitioner has pointed out that in pursuance to the same incident, two other employees, namely; Pravinbhai Kacharabhai Parmar moved a Reference (LCA) No. 605/2002 and Navinbhai Laxmanbhai Solanki moved Reference (LCA) No. 606/2002 before the Labour Court. To the surprise of learned counsel, the reference made by both these employees were dismissed, while reference made by main accused namely respondent no. 1- Manoj Atmaram Solanki has been allowed by holding him entitled to reinstatement with continuity of service and with 20% of back-wages. 11. It is submitted that the Labour Court has exceeded its jurisdiction in re-appreciating the evidence on record of inquiry and reaching its own conclusion contrary to the conclusion of Inquiry Officer, as if, it was sitting in appeal over the decision of the Inquiry Officer. Once the workman has admitted the legality and propriety of inquiry, the Labour Court could not have interfered with the findings of the Inquiry Officer unless these findings were perverse or there was no evidence whatsoever to support the findings reached by the Inquiry Officer. The Labour Court has overlooked the basic principles governing standard of proof required in inquiry. Once the workman has admitted the legality and propriety of inquiry, the Labour Court could not have interfered with the findings of the Inquiry Officer unless these findings were perverse or there was no evidence whatsoever to support the findings reached by the Inquiry Officer. The Labour Court has overlooked the basic principles governing standard of proof required in inquiry. The Labour Court has believed the evidence of complainant Smt. Chitra Iyer qua other two workers namely Pravinbhai Kacharabhai Parmar and Navinbhai Laxmanbhai Solanki, while disbelieved the same qua the worker namely Manoj Atmaram Solanki, who was main accused and has passed the award in his favour. 12. Similar arguments have been raised by the learned counsel representing the respondent no. 2 herein-contractor and petitioner in SCA No. 15771/2008. It has been submitted that the act of respondent no. 1 worker in misbehaving with the lady officer was a serious misconduct which has been ignored by the Labour Court. Once the Inquiry Officer has come to the conclusion for establishment of the charge, there was no reason for the Labour Court to have passed an order regarding reinstatement of respondent no. 1 worker. The Labour Court has failed to appreciate the finding given by the Inquiry Officer that the second defence of the workman that, the workman as well as other staff members have, on several occasions seen Smt. Chitra Iyer with Executive Officer in vulgar position in the company's premises, so the character of Smt. Chitra Iyer was not good. The defence of the worker was not believable because in cross-examination of the worker during the inquiry proceedings, it was admitted that Smt. Chitra Iyer never came in department where the worker was working. There was no direct relationship of Smt. Chitra Iyer with the worker, and there was no question regarding talk or discussion with the workmen. He has further argued that on one hand the Inquiry Officer has believed the cross-examination of the worker and has also believed that there was no relation between worker and Smt. Chitra Iyer, while on the other hand, the Inquiry Officer has come to the conclusion that though the departments are different, and there was no question to meet each other, then how can the charge against the workmen are to be proved and for that part, there was no cogent reasons given by the Inquiry Officer in his finding. 13. 13. This Court has considered the submissions made by both the sides. 14. The facts of this case are required to be re-appreciated. It is the allegation against the workmen that on 2.2.2002 at abut 10.30am, when Smt. Chitra Iyer went to Production Department and was standing near the computer table, the workman Shri Navin L. Solanki planted blank paper piece on the left hand side pocket of her laboratory apron worn by her. Due to this act, her attention was diverted, and at that time, other worker namely Shri Manoj A. Solanki put daily newspaper cutting containing nude photograph in the right hand side pocket of laboratory apron worn by the complainant. The complainant, after seeing the contents of such paper cutting, made a complaint and the process was started against the aforementioned workers. 15. In the inquiry proceedings, the complainant appeared against these four workers. The examination-in-chief of second witness was recorded, however, evidence of this witness is not believed as he has not turned up for cross-examination. The evidence of some more witnesses have been recorded in favour of the complainant. All these witnesses have unanimously corroborated the version of the complainant and have stated that one of the worker put blank paper in one pocket of the complainant, while Shri Manoj Atmaram Solanki put newspaper cutting of a nude lady in the pocket of apron worn by the complainant. The Labour Court while deciding in favour of workman Manoj Atmaram Solanki has mainly relied upon the three things; (i) there was no motive for the workman to have misbehaved with the lady officer; (ii) lady officer could not tell by which hand the workman has put the piece of paper in the pocket of apron worn by her; and (iii) the complainant has not shouted immediately after she has noticed that something has been put in the pocket of her apron. 16. This Court has considered the aforementioned reasonings given by the Labour Court. It is well settled that motive is sine-qua-non for success of case. Still further there was sufficient motive for these workers to have misbehaved with the lady officer especially under the circumstances when all four of them have joined together and lady officer was alone in that compound. The reasonings given by the Labour Court is totally perverse and without application of mind. Still further there was sufficient motive for these workers to have misbehaved with the lady officer especially under the circumstances when all four of them have joined together and lady officer was alone in that compound. The reasonings given by the Labour Court is totally perverse and without application of mind. It has been reasoned that the complainant could not tell as to which hand was used by worker to put the newspaper cutting in the pocket of apron worn by the complainant. Requirement was to narrate the manner in which something has been put into pocket of the lady officer and not as to which hand has been used by the accused to put such paper cutting in her pocket. The Labour Court has further highlighted the fact that the complainant has not shouted at the relevant time when something has been put into her pocket. Even this reasoning is not convincing as it was not required to shout without seeing the paper cutting. Once she has noticed that there was nude paper cutting, she has shouted and has made complaint to the concerned officer. In her cross-examination, she has further stated that a complaint was made to the Managing Director of the company immediately after coming to know the contents of the paper cutting. These facts are further corroborated by other witnesses examined by the management. 17. It is the defence of the workmen that they have been wrongly implicated in this case as they were members of the Union and have been victimised. This defence of the workmen is not tenable in absence of any reason to victimise them. It will be relevant to note that number of workers have appeared as witnesses in favour of the complainant. However, none of the co-workers have supported the stand of the accused workers. They have not examined any witness of defence or no one from that establishment was ready to support their defence. 18. It will be relevant to note that number of workers have appeared as witnesses in favour of the complainant. However, none of the co-workers have supported the stand of the accused workers. They have not examined any witness of defence or no one from that establishment was ready to support their defence. 18. It is interesting to note that for the same incident, two other workers who are alleged to have put blank paper in the pocket of complainant, have been held guilty and their termination has been upheld by the Labour Court, however, main accused-worker Manoj Atmaram Solanki, who has put nude paper cutting in the pocket of lady officer and who was held guilty by the Inquiry Officer, is ordered to be reinstated with 20% back-wages and with continuity of service by the Labour Court. Though the judgment qua those two employees and Shri Manoj Atmaram Solanki has been given by two different officers but the fact remains that for main accused the decision has been came in his favour while in case of two other accused whose act is less serious, their services have been terminated. 19. The Hon'ble Apex Court time and again has stressed that the Courts are required to have proper approach in the case of sexual harassment of female employee. The Courts are required to examine the broader probabilities of the case and not get swayed by insignificant discrepancies or narrow technicalities. The Courts are required to examine the entire material to determine the genuineness of the complaint. The statements of the victim must be appreciated in the background of the entire case. Such cases are to be dealt with great sensitivity and sympathy or mercy towards the offender would be misplaced. 20. Coming to the present case, there was no reason for the lady officer to have falsely implicated these workmen knowing well that her reputation will be at stake. During the course of arguments, this Court is informed that the lady officer has to leave the job after this incident as she was terrified and could not bear the insult which she met out at the hands of her subordinate who were working in the same establishment. 21. During the course of arguments, this Court is informed that the lady officer has to leave the job after this incident as she was terrified and could not bear the insult which she met out at the hands of her subordinate who were working in the same establishment. 21. This Court is in agreement with the arguments of learned counsel for the petitioner that the Labour Court was not required to sit as a Court of Appeal and to re-appreciate the evidence concluded by the Inquiry Officer. Some of the observations made by the Labour Court requires to be deprecated. The Labour Court has mentioned that the allegations of loose character also creates difficulties and problems for male, that if photograph in the news paper cutting is pornography, then the sculptures in the Ajanta Ellora caves etc are also pornography, are all irrelevant and besides the point. 22. The Labour Court seems to have diluted from the main question. The question before the Labour Court was whether there was sexual harassment to the female employee from the workmen or not. The intention of planting newspaper cutting containing photograph of a nude woman in the pocket of the lady employee can only be construed as sexual harassment. It being a grave and serious misconduct, the Labour Court cannot dilute the gravity by its own notions of morality on the basis of sculptures in Ajnanta Ellora caves. 23. In view of the foregoing discussions, Special Civil Applications Nos. 14383/2008 and 15771/2008 are allowed. The impugned award dated 31.3.2008 passed by the Labour Court, Ahmedabad in Reference (LCA) No. 604/2002 is quashed and set aside. Rule made absolute. 24. Special Civil Applications No. 11862/2009 and 12405/2009 preferred by other workers namely Pravinbhai Kacharabhai Parmar and Navinbhai Laxmanbhai Solanki are dismissed. Rule is discharged.