- (1.) THIS Writ Petition under Article 226 of the Constitution of India is directed against the Judgment and Award passed by the Presiding Officer 11th Labour Court, Mumbai dated 30th November 2004 in Reference (IDA) No.238/1999. The terms of reference is articulated in the Schedule which reads thus: "Shri Daman Chetandas Meghani should be reinstated with full back wages and continuity of service w.e.f. 21/5/1994."
(2.) THE background in which reference under Section 39 r/w Section 10(1) and 12(5) of the Industrial Disputes Act, 1947 came to be made by the appropriate Government of Maharashtra in respect of the industrial dispute, is that, the Petitioner, who was working as turner in the factory establishment of Respondent Company at Kurla, was dismissed on the ground of proved misconduct. The said action was taken in the context of the report submitted by one of the Director of the Respondent Company Mr.Nikhil Pasricha dated 18th December 1993. By the said communication addressed to the Managing Director of the Respondent Company, the said Director placed on record his experience about the humiliating behaviour of the Petitioner on 17th December 1993 in the following words: "Dear Sir, Sub : Complaint of mis-behaviour with me against Mr.Dhaman Meghani. With reference to above I wish to inform you that on 1'7.12.1993 at about 5.00 P.M. when I was in the workshop, I noticed that Mr.Dhaman Meghani, Lathe Operator was standing idle and doing no work. His Machine was also stopped. I enquired from Mr.Dhaman Meghani as to why he was not working on the Machine, in reply he told me in a very rude and indisciplined manner that I have no tool to operate my Machine. I told him that the tool was provided to him on 11.12.1993 and there after you remained absent for 2 days eg; 13th and 14th December, 1993 and what happened to that tool to which he replied that the tool was broken and he had informed the Supervisor, where as in fact the Supervisor himself is not reporting for work since 12.12.1993. When he was talking to me in a rude and indisciplined manner I told him to talk to me properly and behave in a disciplined manner. I cautioned him for mis behaviour and language used towards me as he was all along addressing me as "TU" and further said "what can you do to me". When I told him to keep quiet and mind his work he picked up an Iron Rod and threatened to assault me and started hurling filthy abuses at me. The above incident was witnessed by other workmen in the workshop. I being Director in the Company take serious note of such humiliating behaviour of Shri.Dhaman Meghani towards me and request you to take suitable action in this matter. Thanking You, Yours faithfully, Sd/- (NIKHIL PASRICHA) DIRECTOR" On the basis of said report, charge-sheet was prepared and served on the Petitioner dated 21st December 1993 which reads as follows: "This is to inform you that a complaint has been received by me from Shri.Nikhil Pasricha, a Director of the Company that on 17.12.1993 you behaved in a rude and insubordinate manner towards by threatening to assault and also hurling filthy abuses at him. A copy of the complaint is attached for your information. Even earlier you have behaved in similar manner towards even the Managing Director, that is myself. However since you tendered your apology, no serious action was taken against you. It seems, inspite the apology earlier given, you have not improved your conduct and behaviour towards your Superiors. We also find that you are very irregular in your attendance and remain absent without prior permission. The details of your Absentism during the period from 1.1.1993 to 20.12.1993 is enclosed herewith. Your production record also is much below the normal production given by other Machine Operators. You are therefore charged with the following misconducts:- 1. Wilful insubordination and indisciplined behaviour towards Shri.Nikhil Pasricha, the Director of the Company on 17.12.93 at about 5. P.M. on the floor of the workshop. 2. For riotous behaviour when you pick up an iron rod threatening to assault, the Director Shri.Nikhil Pasricha during the incidence on 17.12.1993 at about 5. P.M. in the workshop. 3. For remaining absent of work withoutpermission of 10, 13 and 14 of December, 1993. 4. For wilfully giving less production compared to other Machine men on your own Machine. The Management takes a serious view of your above acts of misconduct and you are called upon to explain as to why disciplinary action should not be taken against you. Your explanation should be submitted within 48 hrs. on receipt of this chargesheet. Further action in this matter will be considered on receipt of your explanation. In view of the seriousness of the misconducts levelled against you, you are suspended from work, pending Managements final decision in this matter." It is the Respondent's case that when the said charge-sheet was attempted to be served on the Petitioner on 22nd December 1993, he refused to accept the same and created scene which became independent cause for proceeding against the Petitioner on the ground of misconduct. Accordingly, second charge-sheet was prepared on 27th December 1993, which was later on served on the Petitioner. The same reads as follows: "IInd Charge Sheet It is further reported to the undersigned that on 22.12.93 at about 3.15 p.m. when you were served with the chargesheet dtd. 21.12.1993 by the Supervisor Shri.Ramesh Chuttani, you refused to accept the same and threw it on the Table. You also started shouting filthy abuses against the Directors threatening with physical assault etc. On hearing the commotion created by you, the undersigned came to the office and asked to keep quiet and accept the charge sheet and submit your explanation, but instead of listening to the undersigned you also started threatening the undersigned saying that you will set us both (i.e.: undersigned and another Director Mr.Nikhil Pasricha) for issuing the charge sheet. The charge sheet however was subsequently accepted by you but you refused to acknowledge the receipt of the same which also you subsequently signed by you on 22.12.1993 but delivered in the office on 24.12.1993. Again on 22nd Dec.1993 at about 3.25 p.m. when you came to collect the advance in the office on the 1st Floor (above the Factory Floor) you, on seeing Shri.Nikhil Pasricha who was sitting in his cabin unprovokedly started shouting filthy abuses at Shri.Nikhil Pasricha, the Director of the Company and the same was witnessed by all the staff in the office. On hearing commotion created by you in the office, the undersigned came up and asked you to keep quiet and take your advance and go. Even thereafter while leaving the office till the last you were abusing and threatening Mr.Nikhil Pasricha and also the undersigned. You are therefore charged with the following misconduct:- 1. For insubordinate and indisciplined behaviour when on 22.12.1993 at about 3.25 p.m. you started shouting abuses in most filthy language towards Shri.Nikhil Pasricha 'Director' who was sitting in his cabin across the office hall. The abuses used by you were 1. Kutte (2) Behanchod (3) Maa-chod etc. etc. When the undersigned asked to keep quiet and leave the office premises, you also started abusing the undersigned and threatened saying that: "Hum Tum Dono ko sida kar dega aur dekhlega." Your above misbehaviour constitutes to serious act of misconduct being an act subversive of discipline and good behaviour on the premises of the establishment. You are already under charge sheet for similar misconduct and you have again indulged in to the same. The Management therefore takes a very serious view of this matter. 2. For refusing to accept the charge sheet dtd. 21.12.1993, when served you at about 3.15 p.m. You are directed to submit your explanation in respect of the above charge sheet within 48 hrs. on receipt of this charges sheet. Further action in this matter will be considered on receipt of your explanation."
(3.) IT is the Respondent's case that after service of the charge-sheet, due enquiry was conducted in which the Petitioner did not participate. As a result, the Enquiry Officer submitted his report and finding, on the basis of which, Director Anita Pasricha issued dismissal order against the Petitioner on 20th May 1994 which reads thus: "Sir, This is in continuation of the Show Cause Notice dtd. 6.5.1994 in respect of the Charge Sheets dated 21.12.93 and 27.12.1993 and the subsequent Enquiry conducted by an independent Enquiry Officer and his report and finding wherein he has found you guilty of the charges as specified in his report and findings and the same have been submitted to me as a Director of the Company for necessary action, as the Managing Director is not capable of taking any decision, since he has been representing the Company in the Enquiry proceedings. I have gone through the Enquiry proceedings and the report and findings of the Enquiry Officer and find that, inspite of giving you sufficient opportunity to attend the Enquiry and to participate you have failed to avail of the opportunities given to you by the Enquiry Officer and as such the Enquiry is in confirmity with the principles of Natural Justice and we are in confirmity with the report and finding of the Enquiry Officer. The proved Acts of misconduct committed by you are of a grave and serious nature and warrant punishment of the dismissal from service. I have also gone through your part records and find no extenuating circumstance to reduce the punishment, as such you are hereby dismissed from service with immediate effect i.e. from 21.5.1994. You are directed to collect all your legal dues if any from our accounts department on any working day, during working hours with prior appointment. Yours truly, For MOULDS and DIES PVT.LTD. (ANITA PASRICHA) DIRECTOR" After the service of dismissal order, the Petitioner filed complaint under the provisions of The Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971. However, the said complaint was disposed of without examining the merits by the Industrial Court on 3rd April 1998 for want of jurisdiction. It is only thereafter the Petitioner submitted application to the Management on 22nd April 1998 raising dispute. However, as no response was received from the Management, the Petitioner submitted representation to the Commissioner of Labour dated Nil which was received in the Office of the Commissioner of Labour on 13th May 1998. Acting upon the said representation, the Conciliation proceedings were resorted to which, however, failed. On receipt of the failure report, the appropriate Authority in exercise of powers of Government under Section 10(1) and Section 12(5) of the Industrial Disputes Act ordered issuance of Notification making reference to the Labour Court, Mumbai and formulated the issue as referred to earlier. Thereafter statement of claim was filed by the workman on 9th September 1999. The Respondent Company filed written statement contesting the reference proceedings. On analysing the material on record and the stand taken by the rival parties, the Labour Court by Part-I Award passed on 8th May 2002 took the view that the departmental enquiry on the basis of which order of dismissal came to be passed by the Respondent was vitiated by principles of natural justice. The view so taken by the Labour Court came to be confirmed by this Court in its order dated 23rd February 2002 passed in Writ Petition No.104 of 2004 filed by the Respondent Company. As a consequence of order dated 8th May 2002, the Labour Court allowed the parties to lead evidence with regard to the charges in respect of which the Respondent proceeded to take action against the Petitioner. In the said enquiry, the Respondent Management relied on the evidence of its witness Mr.Nikhil Pasricha and of Mr.Ramesh Chuttani. The Petitioner, however, only examined himself. The Labour Court identified the four charges emanating from the first charge sheet as follows: "1) Willful insubordination and indisciplined behaviour towards Shri Nikhil Pasricha, the Director of the company on 17.12.1993 at about 5.00 p.m. on the floor of the workshop. 2) For riotous behaviour when you pick-upon Iron rod threatening to assault, the Director Shri Nikhil Pasricha during the incidence on 17.12.1993 at 5.00 p.m. in the workshop. 3) For remaining absent of work without permission on 10, 13 and 14 of December 1993. 4) For willful giving less production compared to other machine men, on your own machine." ;