Management of M/s. Usha Breco Ltd. vs Presiding Officer, Labour Court, Jamshedpur and Others

M.Y. Eqbal, J.—The petitioner. M/s. Usha Breco Ltd., Gamharia (hereinafter referred to as the Management) has challenged the award dated 17.2.84 pronounced in Reference Case No. 9/87 by the Presiding Officer, Labour Court Jamshedpur, whereby and whereunder has answered the reference in favour the concerned workmen. It appears that the Government Bihar, vide Notification dated 29.5.84 referred the following disputes for as judication in the Labour Court, Jamshedpur:

Whether the termination of service of Sri K.K. Yadav, Machine Operator and Sri R.P. Singh, Machine Operator workmen of M/s. Usha Breco Gamharia, Jamshedpur is proper and justified ? If not, whether they ate entitled for reinstatement or/and any other relief ?

The brief fact of the case is the on 17.2.84 there was a complaint above the misconduct against the above name two concerned workmen in the facto premises. For the said incident the contractor lodged FIR against the two workmen and the workmen also lodge FIR. The workmen were placed under suspension by the order of the Deputy General Manager of the petitioner- Company and on 18.2.84 chargesheets well issued to the workmen, who filed the reply to the charges on 20.2.84. Since the reply was not found satisfactory departmental proceeding was conducted for the charges levelled against the concerned workmen. The workmen participated in the departmental proceeding and ultimately the enquiry officer found the workmen guilty of the charge levelled against them. On the basis of the finding recorded by the enquiry officer the workmen were dismissed from service with effect from 9.4.84. A dispute about the dismissal was raised and on that basis the reference was made to the Labour Court for adjudication.

The case of the management, inter alia, is that on 17.2.84 a complaint was received from Sri G. Natrajan at about 3 PM when he was having discussion with Shekhar Rao, the representative of the contractor of M/s. Techno Fab. The concerned workmen came and asked Sri Rao that whether there is arrangement of first aid or not. Mr Rao replied that the first aid provision have to be made by the Company and not by the contractor. The concerned workmen did not listen and continued to press their point resulted in hot discussion. Sri Natrajan told them that such matter should be discussed with the Personnel Manager of the Company. By that time Sri Dara Singh of M/s. S.D. Construction also reached there. The two concerned workmen asked Mr. Dara Singh also about the provision of first aid to their workers. Sri Dara Singh too replied that making the provision of first aid is the duty of the company and not of the contractor. On hearing this, the concerned workmen started misbehaving with Sri Dara Singh using indecent, unparliamentary language and abusing him in angry tone. Sri Dara Singh objected to their behaviour. Upon this, the concerned workmen started abusing him in filthy languages and also threatened him with dire consequences. The concerned workman Sri K.K. Yadav took upon an iron rod to hit Sri Dara Singh. Sri Dara Singh, in his defence also took upon an iron rod, then another workman R.P. Singh joined Sri Yadav by taking another iron rod in his hand. With the intervention of the officers and some workers both were separated. The management''s further case is that the concerned workmen went further in the factory premises and instigated the workers to get the work stop. For this misconduct i.e. for disorderly behaviour inside the factory, in-subordination, instigation to the workmen and stopping the work resulted in huge loss to the company. Consequently, they were subjected to domestic enquiry and the order of dismissal was passed.

On the other hand, the case of the workmen is that they were Secretary and Vice-President of the workers of the company and used to ventilate the grievances of the workmen of the company, so the management alleged the baseless charges against them by way of victimisation and unfair labour practices and suspended them. They have denied the charges levelled against them and stated that the enquiry officer was not appointed by proper authority and the charge levelled against them was not so serious which warrants their dismissal from the services.

On the basis of pleadings of the parties, the Labour Court framed the following issues for determination:

(i) Whether the management have been able to prove the charges levelled against the workmen on the basis of the evidences on record ?

(ii) Whether the punishment or termination of services of the workmen commensurate to the charges or proved charges; if any ?

(iii) Whether the workmen are entitled to reinstatement of services and back wages ?

(iv) Whether the termination of services of the workmen Shri K.K. Yadav and Shri R.P.Singh is proper and justified ? If not, whether they are entitled to reinstatement or/and any other relief?

While deciding issue no. (1) the Labour Court came to the conclusion that the management failed to establish any of the charges against any of the workmen successfully. The Labour court further held that the punishment of dismissal of the workmen from services does not commensurate to the charges levelled against them. Consequently the Labour Court, by the impugned award, set aside the dismissal of the workmen from services and directed the management to reinstate them with full back wages from the date of their dismissal.

Mr. K.B. Sinha, learned counsel appearing for the petitioner-Management, firstly submitted that the impugned award passed by the Labour Court is contrary to law, facts and evidence on record and is liable to be set aside. The learned counsel submitted that the award is perverse in law inasmuch as not a single evidence adduced on behalf of the management particularly the oral evidence of the witnesses have been discussed by the Labour Court. Learned counsel then submitted that when the Labour Court held the domestic enquiry fair and proper then there was no occasion for the Labour Court to state the reason while disagreeing with the finding of the enquiry officer. Learned counsel further submitted that the Labour Court was not justified in granting back wages for a long period of 8 years for no work done and further that the Labour Court has not given any reason to justify the payment of back wages. Learned counsel lastly submitted that the charges levelled against the workmen were so serious that the dismissal of the workmen from services is the just and proper punishment. Learned counsel relied upon series of decisions on the question of disorderly, indecent behaviour within the factory premises and also on the question whether the workmen are entitled to back wages in the facts and circumstances of the case

On the other hand, Mr. S.L. Agrawal and Mr. A.K. Sahani, learned counsels appearing for the concerned workmen, supported the award on the basis of evidences adduced by the parties. Learned counsel submitted that admittedly the concerned workmen at office bearers of the Union and the demand for providing first aid in the factory premises cannot be said to be unjustified. Learned counsel submitted that except some overt act no casualty too place and, therefore, the Labour Court rightly held that punishment of dismissed from the services is disproportionate the charges levelled against the concerted workmen.

In course of argument Mr. K.B. Sinha, learned counsel appearing behalf of the petitioner, has not dispute the finding that the workmen are officer bearers of the petitioner-company an they have demanded first aid for the workmen from the officers of the management. The Labour Court, after discussion the evidences both oral and documental adduced on behalf of the management and the workmen, came to a finding, the there was scuffle between the contract, and the workmen and shouted each other but nothing untoward happened nor and injury was caused to any body. After discussing the evidences of the officers the management the Labour Court came to a further finding that the workmen the not misbehave with the officers rather there was merely heated discussion between the workmen and the contractor The Labour Court on the question the stoppage of work due to the incident has recorded the following finding:

The management has adduced in. record or register or Time Register the Factory to show and prove the stoppage of work from 3.30 p.m. to 7.30 p.m. on the day of alleged occurrence. The Enquiry Officer has admitted that there was power cut for 46 minutes from 3.25 p.m. so naturally the work would have stopped in Factory from before 3.30 p.m. So question of instigating by the workmen for stopping the work in the Factory from 3.30 p.m. does not arise and so this charge also falls flat.

I do not find any strong reason to differ with the finding of fact arrived at by the Labour Court particularly when the Labour Court has discussed the evidences adduced by the parties.

On issue no. 2 the Labour Court has come to the following finding:

Under this issue this is to be determined whether the punishment of termination of services of the workmen commensurate to the charges levelled against or proved charge, if any ? In course of dealing with issue no. (1) it has come to light that the management has failed to prove any of the charges against any of the workmen. From the perusal of the nature of the charges against the workmen it is evident that these are petty charges on the basis of which the workmen were termniated from their services. Such act of the management proves that as the workmen were active office bearers of the Union, vide exhibits noted above, so the management victimised them inflicting severe punishment of dismissal against them. This amounts to act of victimisation on the part of the management against the workmen. Hence, I find that the punishment of termination of services of the workmen does not commensurate to the charges levelled against them. Hence this issue is answered accordingly.

Mr. K.B. Sinha learned counsel for the petitioner, strongly argued that when the Labour Court found the domestic enquiry fair and proper, there was no reason for the Labour Court to differ with the finding arrived at in the domestic enquiry. I find no force in the submission of the learned counsel.

From perusal of the award it appears that the management as also the workmen have adduced oral as well as documentary evidences and the management tried to prove that the punishment awarded to the workmen is just and proper. In such circumstances the Labour Court is not debarred from scrutinising the evidences adduced by the parties in order to find out whether the termination or dismissal order was proper. It is well settled that Section 11A of the Industrial Disputes Act empowers the Labour Court or the Tribunal to call upon the management to justify the action taken against the workmen and to show by fresh evidence that the termination or the dismissal order was proper.

Recently, in the case of Neeta Kaplish Vs. Presiding Officer, Labour Court and Another, , the Supreme Court has held that the provision of Section 11A of Industrial Disputes Act as amended in the recommendation of the International Labour Organisation, confers power upon the. Tribunal not only to set aside the order of dismissal and direct reinstatement of the workmen, it had also the power to award lesser punishment. The Tribunal can also call upon the management to adduce evidence to justify that the order of termination or dismissal is proper.

In the instant case the Labour Court by scrutinising and analysing the entire evidences has come to the conclusion that the charges levelled against the workmen have not been proved and, therefore, the order of dismissal was bad in law. There is no material before me to differ with the finding arrived at by the Labour Court.

So far the award with regard to full back wages is concerned, it is evident that some incident took place inside the factory premises and although there was no casualty but admittedly the workmen instead of solving the problem peacefully, started hot discussion with the contractor. The Labour Court has come to a finding that there was heated discussion between the workmen and the contractor but nothing untoward serious happened due to intervention of the officers of the management on the spot. This could have been avoided by the workmen but they took the matter incidentally. This has resulted in initiation of a proceeding against the workmen. In such circumstances I am of the opinion that the. Labour Court was not justified in awarding full back wages to the workmen from the date of their dismissal. In my considered opinion, the payment of 50% of the back wages to the workmen from the date of their dismissal to their reinstatement would meet the ends of justice. For the reason aforesaid, this writ application is allowed in part and the award is modified to the extent that the workmen shall be entitled to reinstatement with 50% back wages from the date of their dismissal to their reinstatement. The award with regard to setting aside the dismissal and reinstatement with continuity of service and other benefits are hereby confirmed.