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Judgment
A.P. Shah, J.—Rule. Mr. Singh for the 1st respondent waives service. Leave to delete the names of respondent Nos. 2 and 3 granted. By consent, petition is taken up for final hearing.
This petition under Article 226 of the Constitution challenges the order dated February 28, 1995 passed by by the 5th Labour Court, Mumbai in Complaint (ULP) No. 72 of 1985 and order dated April 1, 1999 passed by the Industrial Court, Mumbai in Revision Application (ULP) No. 43 of 1995.
The petitioner is a Cancer Research Institute as well as runs a hospital namely, the Tata Memorial hospital. The hospital as well as the Cancer Research Institute are controlled and run by the Government of India. The respondent is the Union registered under the Trade Unions Act and representing some of the employees working in the hospital and the Institute. In the present case, the Union has espoused the cause of one of its members T.K. Salkade, who was working as a store-keeper in the Tata Memorial Centre. Shri Salkade had made a claim for reimbursement of travelling expenses by his application dated November 21, 1983 and also furnished a certificate issued by Manohar Travels dated October 31, 1983. The workman had claimed LTC on the ground that he, his wife, his mother and his unmarried sister had travelled to Kanyakumari and back between the period October 10, 1983 to October 28, 1983. It seems that (he petitioner received a complaint from the workman''s sister stating that his sister and mother were not residing with the workman and that they had not undertaken the journey to Kanyakumari and back as declared by the workman and that even the workman and his wife had not travelled to Kanyakumari at all but had attended the proceedings before the Metropolitan Magistrate''s Court at Kurla on October 26, 1983.
Based on the said complaint, the workman was charge-sheeted and after holding a domestic inquiry, a penalty of termination from service was imposed upon him and by order dated January 31, 1985 his services were terminated. The respondent Union filed a: complaint alleging unfair labour practices under Items 1(a), (b), (d), (f) and (g) and Item 9 of Sch. IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("the Act" for short). The Union alleged that the inquiry was not fair, legal and proper and that the termination was shockingly disproportionate to the charges levelled against the employee. The Union, therefore, prayed for a declaration of unfair labour practice under the items pleaded in the complaint and for a direction to the petitioner to reinstate the workman with full back wages.
The Labour Court after hearing the parties passed order dated February 28, 1995 rejecting the case of the Union on all issues except under Item 1(g) of Schedule IV of the Act and directed the petitioner to reinstate the employee in the original post without back wages. The Labour Court held that the inquiry was fair and proper and the misconduct was duly proved against the employee. The Labour Court, however, held that the punishment was grossly disproportionate and directed reinstatement without back wages.
The petitioner challenged the order of the Labour Court by fifing Revision Application (ULP) No. 43 of 1995 u/s 44 of the Act before the Industrial Court. The Union did not file cross objections nor did the Union challenge the order of the Labour Court depriving the workman the back wages for the entire period i.e., from the date of his termination till the date of reinstatement. The workman, however, filed affidavit dated August 4, 1998 in the revision application filed by the management opposing the prayers made in the revision application. The Industrial Court by its order dated April 1, 1999 rejected the revision application filed by the management. The Industrial Court, however, allowed the so-called counter claim of the workman raised in the affidavit dated August 4, 1998 and directed to reinstate the workman in service with continuity dated August 4, 1998 and directed to reinstate the workman in service with continuity of service and also to pay 75% of the back wages for the period January 31, 1985 till the date of reinstatement.
Ms. Doshi, learned counsel appearing for the petitioner strenuously contended that the Industrial Court committed serious error in granting back wages without there being any specific prayer on the part of the Union or the employee. She urged that the Industrial Court had no jurisdiction to grant the relief of back wages as the Union had not challenged that part of the order and was thus estopped from seeking any modification of the order of the Labour Court by which back wages was denied to the employee. Ms. Doshi also urged that the Labour Court ought not to have granted relief of reinstatement. She submitted that giving a 1 false declaration for the purpose of claiming LTC, as done by the employee, cannot be said to be misconduct of a minor or technical nature. Therefore, the punishment of dismissal cannot be said to be shockingly disproportionate to the ; proved misconduct of the employee.
In reply, Mr. Singh submitted that the Industrial Court has passed order for back wages on the basis of an affidavit filed by the workman, which was treated as a counter-claim land this Court exercising discretionary jurisdiction under Article 226 should not interfere with the order for back wages. As far as reinstatement is concerned, Mr. Singh submitted that both the Courts have come to the conclusion that punishment of dismissal was wholly disproportionate and according to the learned counsel this finding cannot be assailed in writ jurisdiction under Article 226 of the Constitution. Mr. Singh contended that the workman, as a result of the Labour Court order, is deprived of nearly ten years'' wages. He submitted that there is no need to interfere with the discretion exercised by the Labour Court by granting the order of reinstatement.
At the outset, it must be mentioned that the order of the Industrial Court granting backwages is wholly unsustainable. The Labour Court had passed the order of reinstatement without back wages. The order was challenged by the management by filing a revision application. The union or the workman did not file any cross objections or counter claim against the order of the Labour Court. It seems that the Industrial Court has treated the affidavit filed by the workman as a counter claim. On perusal of this affidavit, it is seen that even in the affidavit the workman has not challenged the order of the Labour Court denying back wages. Under the circumstances, the order of the Industrial Court granting 75% of back wages from the date of dismissal is liable to be set aside.
Turning then to the Labour Court''s order granting reinstatement, it is no doubt true that the Labour Court has held that the charge of misconduct is established against the workman. It seems to be almost an admitted position that the mother and sister of the workman had not travelled with the employee to Kanyakumari. It is also doubtful whether the workman himself had travelled although the lower Courts have accepted his claim that he had undertaken the travel by road to Kanyakumari.
The Labour Court has observed:
"Taking into consideration and further also considering the fact that the workman was ready to refund the amount at the earliest it must be held that the punishment of dismissal is shockingly disproportionate. The past record of the workman is not bad or blemished. During his long length of service, only once he was warned. On the contrary he was promoted for his merited performance during his service."
The Labour Court concluded thus:
"The workman is entitled to LTC from respondents. He had given incorrect information but subsequently admitted the charges. The misconduct of workman shall not go unpunished. If I allow the full back wages to the workman, it would amount to a permission for his committing misconduct. The other employees may encourage such tendency to furnish false/incorrect information. So some deterrence is necessary. In my considered view if I deprive the workman of his back wages it would be a proper punishment as against the misconduct. His bread and butter can be again provided to him to start a new life by ordering reinstatement but he must be denied the back wages in order to do complete justice between the parties. In my opinion, justice, equity and fair play commend to order reinstatement without back wages."
In my opinion, the above findings of the Labour Court cannot be called perverse or erroneous. The employee had rendered more than 15 years service when his services were terminated. The service record of the employee is unblemished except on one or two occasions he was warned for late arrival. He had received promotions for his meritorious performance. Although the conduct of the workman amounts to misconduct, the penalty imposed on him is excessive and disproportionate. As a result of the order of the Labour Court, he has been deprived 10 years'' wages. To my mind, this deprivation of back wages is sufficient penalty in the facts and circumstances of the case. Ms. Doshi contended that the workman was working as a stroke-keeper and the post being rather sensitive, reinstatement should not be granted. I find no merit in this contention. Under the service conditions the management has got a right to allocate to the workman work in any other department. It is always open for the management to post him in a department other than the store department.
In the result, petition is partly allowed. The order dated April 1, 1999 passed by the Industrial Court is quashed and set aside. The order of the Labour Court dated February 28, 1995 is confirmed. The petitioner is directed to pay the back wages for the period from the date of the Labour Court''s order within four weeks.
On the oral application made by Ms. Doshi, the operation of this order is stayed by a period of two weeks.