1. By this writ petition the petitioner Balkrishna B Tandel (hereinafter referred to as 'the workman'), challenges an award passed by the learned Presiding Officer, 9th Labour Court, Bombay, in Reference (IDA) No. 478 of 1978, on 2nd March, 1984.
2. The short facts leading to the filing of this writ petition are that the petitioner was employed by M/s. Indabrator Limited (hereinafter referred to as 'the employer') as a Fitter. He was working there for the about 9 years. He was an active member of a Trade Union known as Engineering and Metal Workers' Union and was also Joint Secretary of the Factory Committee of the said Union. According to him, the employer did not like their employees joining the said Union and, therefore, they encouraged another Union called Bharatiya Kamgar Sena to come up and started harassing the members of the Union to which the workman belonged. He further alleged that the Factory Committee consisted of five workmen out of which three employees, including the petitioner, were removed from services on false and baseless charges. Thus, the present workman himself was chargesheeted on 10th December, 1976 on the allegations that on the said day when Works Manager Pathak was taking rounds with one Gaonkar he noticed the present workman standing idle near mould cleaning machine for Vikrant Tyres and when questioned he answered that he was waiting there for a plate that he had given for gas cutting. When further inquired as to why he did not do some other work in the meanwhile, the workmen shouted that he (Pathak) should not speak to him and that whatever was to be said to him the same should be said by Gaonkar. He also threatened Pathak that if he wanted to speak to him he should do it outside the Company. The Petitioner-workman filed a reply to this chargesheet on 13th December, 1976 pointing out that allegations made against him were false and that on the relevant day and time he was waiting for the plate given by him for gas cutting and that is how he was standing as alleged. According to him when questioned by Pathak he explained the situation to him upon which Pathak got angry when he said to him that if anything is to be clarified it could be done from Gaonkar who was his immediate superior and knew the things well. Thus he stated that talks between him and Pathak were distorted in the charge-sheet. The workman also contended that he was charge-sheeted on a totally fabricated story with a view to victimise him because he was an active functionary in the Union. The employer thereafter held a domestic enquiry against the workman. The enquiry officer C. E. Mahindrakar found the workman guilty of both the charges levelled against him, viz., (i) wilful insubordination or disobedience whether alone or in combination with others to any lawful and reasonable order of a superior and (ii) commission of act subversive of discipline on the premises of the establishment. The employer accepted the findings of the enquiry officer and dismissed the workman vide their letter dated 8th October, 1977 from service. After the dismissal of the workman, the Engineering Metal Worker's Union served a demand on the employer-Company by a letter dated 14th December, 1977 for reinstatement of the workman which demand was admitted in conciliation and since the dispute could not be settled, the Conciliation Officer submitted a failure report on 13th October, 1978 upon which the Deputy Commissioner of Labour, Bombay, made a reference to the Labour Court. On behalf of the workman a statement of claim was filed in the Labour Court justifying the demand which was resisted by the employer by filing a written statement. Parties also filed documents relied upon by them. Neither the workman nor the employer adduced any oral evidence before the Labour Court and instead filed their written arguments. Records and proceedings of the domestic inquiry were admitted in evidence which were considered by respondent No. 2, the Labour Judge of the 9th Court, Bombay, who by his impugned award dated 2nd March, 1984 set aside the dismissal order but rejected the workman's demand for reinstatement, and instead passed an order directing termination of the services of the workman from 10th December, 1976. He further directed the employer to pay retrenchment compensation and gratuity amount together with leave and earned wages, if any, to the workman. Being aggrieved by the said award, the workman filed the present writ petition.
3. Mr. Kotchar, appearing on behalf of the workman, first of all submitted that the allegations made against the workman do not amount to misconduct and that the workman should not have been charge-sheeted and no enquiry should have been held against him. In any case, according to him, this was certainly not a case in which the employer should have passed an order of dismissal against the workman even if it was held that he had committed misconduct, further submitted Mr. Kotchar. He also urged that the punishment awarded to the workman by the employer was so disproportionate to the alleged misconduct that it amounts to victimisation apart from the fact that the workman was victimised purely on account of the fact that he was an active participant in the Trade Union activities. Therefore, Mr. Kotchar submitted that this is a fit case where the workman should be reinstated with continuity of service and full back-wages. Controverting the submissions made by Mr. Kotchar, Mr. Puri who argued the matter on behalf of the employer urged that the dismissal order in this case was fully justified as the workman had not only disobeyed the order of his superior but had also used threatening language against him that if he wanted to talk to him he should do so outside the Company. In the submission of Mr. Puri, the indiscipline on the part of the workman was serious in as much as he was rude and was in a threatening mood and talked to his superior in an insulting manner. Mr. Puri's contention thus is that the punishment was not disproportionate to the misconduct alleged and proved against the workman.
4. Now, it is true that the misconduct alleged against the workman can be said to have been proved. The employer adduced the evidence of as many as five witnesses, including Pathak and Gaonkar, on their behalf at the domestic inquiry. The workman examined himself and two more witnesses on his behalf. We have been taken through this entire evidence by Mr. Kotchar and Mr. Puri which reveal that Mr. Pathak who was a Superior Officer of the workman, was polite in his talks whereas the workman was shouting and used insulting and threatening language. It is, in our opinion, too much for a workman to say to his superior that he should not talk to him and if he wanted to talk to him he should do it outside. If he was waiting for certain material to come for his usual work to start he should have cared to obey the order of his superior to do some other work in the meanwhile instead of whiling away the time. Therefore, we are unable to persuade ourselves to agree with Mr. Kotchar that this is not a case in which the workman should have not been charge-sheeted and no domestic enquiry should have been held against him.
5. However, for this misconduct the order of dismissal of the workman is not a proper punishment. The learned Labour Judge also held that the incident in this case was of a trivial nature. We also feel that the incident was not of that serious nature which warranted dismissal of the workman. Extreme punishment of dismissal can only be inflicted in cases involving grave and serious misconduct. A very emphatically contention was raised by Mr. Kotchar that once having held that punishment was disproportionate to the misconduct alleged against the workman it should be inferred that the workman was victimised. Mr. Puri with equal emphasis at his command urged that this is not a case of victimisation. We find quite some substance in the submission of Mr. Kotchar but regard being had to the facts and circumstances of this case, we are not inclined to probe further in the question of victimisation especially when we are inclined to upset the impugned award partially on other aspect of the matter which we shall presently point out.
6. The learned labour Judge, regard being had to the fact that the punishment inflicted on the workman was disproportionate to the misconduct proved against him, rightly set aside the order of dismissal. He substituted the punishment of dismissal by one of termination. But in our opinion, this punishment is also too harsh. In practical life, there is hardly any difference in dismissal and termination as both involve loss of job which is extreme punishment. It is true that so long as termination is concerned, the workman stand to get some monetary benefits. But what is the use of such benefits when one loses employment. In the instant case, we cannot think of punishment to the workman as and by way of losing job for the misconduct proved against him. We are, therefore, inclined to set aside the order of termination passed by learned Labour Judge. The workman was suspended on 10th December, 1976 and was dismissed on 8th October, 1977. During this period he was not paid full wages. We are ordering his reinstatement with 50% back-wages right from his day of suspension. It means that during the period of suspension he will get only half the wages which, in our opinion, is adequate punishment with which the workman can be visited for the misconduct proved against him.
7. In this view of the matter, we order that the workman be reinstated with continuity of services right from the date he was suspended on 10th December, 1976. The question that remains then is as to what amount of back-wages should be ordered to be paid to the workman. In this connection, Mr. Kotchar has very rightly urged that once it is held that the order of termination of the workman was bad in law, he is entitled to full back-wages. But in this case the employer had made an application, of course at the fag end of the trial, that they be allowed to adduce evidence to the effect that the workman was gainfully employed when not in Company's service and therefore he was not entitled to full back-wages. Unfortunately, no orders came to be passed on this application (Exh. 19) made by the employer which, of course, was very vehemently opposed on behalf of the workman on the ground that the application was a dubious attempt on the part of the employer and no particulars were given in the application to show that the workman was employed elsewhere. Anyway, the fact remains that the employer was not given reasonable opportunity to adduce evidence to show that during the period of unemployment the workmen was gainfully employed elsewhere. If the Company was allowed to adduce this evidence it could be proved that he was not entitled to full back-wages. In such a situation ordinarily we would have remanded the matter back to the Labour Court with a view to find out whether the workman, as contended by the employer, was gainfully employed when he was out of job. However, since the matter was pending final disposal for long we are not inclined to remand it. Instead of doing that with a view to see that the matter finally ends here, we would better decide here and now as to what should be the back-wages, taking into consideration the facts and circumstances of this particular case. Fortunately in this matter both the counsel appearing on behalf of the respective parties have left the matter as to the back-wages to us. And for the reason that the employer was not given opportunity to lead evidence to prove that while the workman was out of employment he was gainfully employed elsewhere, we feel that the ends of justice will be served if we order that the workman be paid 50% back-wages right from the day he was suspended till one week from today i.e., 10th September, 1984, from which day the workman shall be deemed to have been reinstated and he shall be thereafter entitled to full back-wages. We would like to make it clear here that his reinstatement will be with continuity of services for the purpose of all the consequential benefits. During the suspension period if the workman was paid any wages, those amounts shall be adjusted.
8. In the result, rule is partly made absolute with costs which we quantify at Rs. 500/-.