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2019 DIGILAW 1731 (BOM)

Spentex Industries Ltd. Through Its General Manager v. Dilip

2019-07-24

A.S.CHANDURKAR

body2019
JUDGMENT A.S.Chandurkar, J. - Challenge raised in the present writ petition is to the judgment of the Industrial Court dated 26/03/2018 maintaining the judgment of the Labour Court which set aside the order of dismissal dated 12/04/2012 as issued to the respondent and directed his reinstatement with continuity in service and 50% back-wages from the date of dismissal till the date of reinstatement. 2. The respondent was appointed as a Motor Winder with the petitioner Factory. He was in service since 13/11/1998 . On 01/12/1999 when he was working as Assistant Motor Winder he was asked to attend the break down of a machine. While doing so he had given supply of two phase electric current instead of single phase electric current. This resulted in an internal short circuit and the said machine was burnt. The respondent was thereafter issued a notice and after considering his reply, departmental enquiry was held. At the conclusion thereof punishment of dismissal from service came to be imposed. By filing a complaint the respondent challenged the same. While considering the issue with regard to fairness of enquiry and the findings recorded by the Inquiry Officer, it was held that the enquiry was fair and proper. The findings of the Inquiry Officer were held to be legal and proper. The Labour Court thereafter came to the conclusion that though the misconduct was proved the punishment of dismissal from service was shockingly disproportionate. Hence by its judgment dated 25/05/2017 the order of dismissal was set aside and by depriving the complainant of 50% back-wages from the date of dismissal, he was directed to be reinstated with continuity of service. The Industrial Court in exercise of revisional jurisdiction concurred with the findings recorded by the Labour Court and dismissed the revision application. Being aggrieved the employer has filed the present writ petition. 3. Shri S. G. Zinjarde, learned counsel for the petitioner submitted that the Labour Court erred in interfering with the quantum of punishment imposed by the employer. The misconduct of the respondent having been duly proved and it being of a grave nature, there was no reason to interfere with such punishment. Referring to the order of dismissal dated 12/04/2012 it was submitted that after considering the past service of the complainant the aforesaid punishment came to be imposed. The misconduct of the respondent having been duly proved and it being of a grave nature, there was no reason to interfere with such punishment. Referring to the order of dismissal dated 12/04/2012 it was submitted that after considering the past service of the complainant the aforesaid punishment came to be imposed. In support of his submissions the learned counsel placed reliance on the following decisions : a) Janatha Bazar (South Kanara Central Co-op. Wholesale Stores Ltd.) etc. vs. Secretary, Sahakari Noukarara Sangha etc.,2000 2 CurLR 568 . b) Mahindra and Mahindra Ltd. vs. N. B. Narawade, (2005) 1 CurLR 803 . c) Maharashtra State Road Transport Corporation vs. Manikrao Sahabrao Chavan, Malegaon and anr., (2009) 1 CLR 740 . d) Maharashtra State Road Transport Corporation vs. Baburao Raoji Shinde (deceased) Through LRs. Subhadra Baburao Shinde and ors., (2017) 3 MhLJ 364 . It was thus submitted that the impugned orders were liable to be set aside. 4. Shri S. G. Nigot, learned counsel for the respondent supported the impugned order. He referred to the provisions of Clause 25(6) of the Industrial Employment (Standing Orders) Act, 1946 and submitted that since the past service of the respondent was clear it was rightly found that the punishment of dismissal was grossly disproportionate. The respondent was not cross-examined on this aspect of the matter and the employer was content with the findings recorded on the preliminary issues. There was no evidence regarding monetary loss suffered by the employer as a result of the machine being burnt. There was also no evidence of any habitual negligence on the part of the respondent. In these facts therefore the interference by the Labour Court was justified and the same was also accepted by the Industrial Court. 5. I have heard the learned counsel for the parties at length and I have perused the material placed on record. It is not in dispute that the respondent was employed as Assistant Motor Winder and was asked to attend the machine that had broken down. It was found that instead of supplying electric current from a single phase he had given supply of two phase current. This resulted in the machine being burned down. In the order of dismissal there is a reference to an earlier instance and warning given to the respondent by the employer. There is further no evidence brought on record in that respect. This resulted in the machine being burned down. In the order of dismissal there is a reference to an earlier instance and warning given to the respondent by the employer. There is further no evidence brought on record in that respect. Further there is also no evidence of the monetary loss suffered by the employer as a result of the machine being burned down. As per provisions of Item 1(g) of Schedule-IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 if the misconduct is of a "technical character" then the aspect of the punishment being shockingly disproportionate can be examined. As noted above there is no evidence of monetary loss suffered by the employer. Supply of two phase electric current instead of single phase current would therefore fall within the term "technical character". Hence it is found that the Courts were justified in substituting the punishment of dismissal with that of depriving the respondent of 50% back-wages. There is no dispute with regard to ratio of the decisions relied upon by the learned counsel for the petitioner. However, in the facts of the present case those judgments do not assist the case of the petitioner. It is found that the Courts have considered the questions raised in the proper perspective. The impugned orders do not suffer from any jurisdictional error. The Writ Petition is therefore dismissed with no order as to costs. The amount of back-wages deposited by the petitioner with accrued interest as well as the amount of Rs.10,000/- deposited in terms of order dated 08/08/2018 are permitted to be withdrawn by the respondent.