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IN THE HIGH COURT OF BOMBAY
D.R. Dhanuka, J.
E. MERCK (India) Limited ... Petitioner.
Versus
V.N. Parulekar and others.... Respondents.
Writ Petition No. 2973 of 1987 with Writ Petition No. 972 of 1988, decided on 23/30-11-1990.
Advocates appeared :
R.S.Kulkarni, with Abhay Kulkarni, for the petitioners. in W.P. 972 for respondent in W.P. 2973.
K.K.Singhvi, with Mrs. Meena Doshi, for the respondent Company in W.P. 972 for petitioner in W.P. 2973.
Whether it would be in the interest of justice to remand the matter to the Industrial Tribunal when the disputes between the parties are pending since 1977-78 and there is enough material on record on the basis of which it is possible for the High Court to exercise its discretion and mould the relief so as to promote substantial justice and put an end to this long drawn controversy. Supreme Court moulded the relief and passed the final orders granting reinstatement to some of the employees and granted some other reliefs to some other employees.
As far as the incident of gherao is concerned, facts of the case pleadings of the parties, summary of the evidence led before the enquiry officer leave no doubt in my mind that the respondent No. 2 had led the gherao which resulted in wrongful confinement of three of the officers of the company. It is true that the respondent No.2 Mr. Pradhan and 8 others were acquitted by the Criminal Court and the Industrial Tribunal has not correctly summarised all the grounds on which the Criminal Court acquitted the accused. Taking a broad view of the matter and having regard to the judgment of the Supreme Court in the recent case of Workmen of Bharat Friz Werner (P) Ltd. v. Bharat Fritz Werner (P.) Ltd and another, reported in AIR 1990 SC 1054.
Since the management has completly lost faith and grave misconduct was obviously committed by respondent No.2 by indulging in objectionable activity of gherao, interest of justice would be better served if substantial amount of compensation is awarded to respondent No.2 in lieu of rain statement as was done by the Supreme Court in the above referred case.
The Supreme Court directed the management to pay a sum of Rs. 1,50,000/-to the workman concerned towards compensation in lieu of reinstatement and for loss of future employment, etc. The incident of gherao in which Mr. Pradban indulged along with other workman is virtually of the same gravity as was the incident in the case before the Supreme Court.
The interest of justice would be better served by directing the payment of compensation in lieu of reinstatement for loss of future employment, etc., all inclusive. Under the terms of the settlement dated 13th November, 1979, the workmen were paid 80 per cent of their last drawn salary as interim payment.
Section 11-A-Whether Industrial Tribunal competent to after punishment awarded to employees after domestic enquiry-field-section 11-A confers discretion on industrial Tribunal to alter punishment awarded to workman High Court not bound to set aside order merely because it is not in conformity with provisions of law if impugned order or award is otherwise just and reasonable.
2. E.Merck (India) Limited, the petitioner in Writ Petition No. 2973 of 1987 is a well known pharmaceutical company having its factory at Taloja and its officers at Bombay. Respondents 1, 2 and 3 were the office bearers of the recognised trade union concerning the employees of the petitioner at the relevant time. The respondent Nos. 1, 2 and 3 were employees of the petitioner at all material time.
3. These petitions arise out of unfortunate litigation between the employer and the employees concerning incidents which took place about 13 years ago. This unfortunate litigation has a chequered history. Law's delays have also contributed to the human sufferings. It is reasonably hoped that the parties will at least now put an end to this acrimonious litigation at the earliest so that the industrial peace can be restored.
4. By these petitions, both the employer as well as the employees have impugned part of the Award dated 9th July, 1987 made by the Industrial Tribunal in Reference (IT) No. 230 of 1979. On 8th December, 1978 the management passed orders of dismissal against each of the three workmen i.e. respondent Nos. 1, 2 and 3 in Writ Petition No. 2973 of 1987 accepting the findings recorded by the enquiry officer appointed by the management to enquire into various charges of misconduct imputed to each of the three respondents. By an order of reference dated 15th October, 1979 passed by the appropriate authority, four demands were referred to the Industrial Tribunal for adjudication under the provisions of Industrial Disputes Act, 1947. The said demands were:-
1) Bonus for the year 1975;
2) Bonus for the year 1977;
3) Dismissal of respondent Nos. 1, 2 and 3 herein i.e. Shri V. N. Parulekar, Shri V. V. Pradhan and Shri J.C. Felicio; and
4) Discharge of one Mr. Bhoir.
On 13th November, 1979, the union and the management entered into a settlement, a copy whereof is annexed as Exhibit. "W" to Writ Petition No. 2973 of 1987. The said settlement was arrived at between the parties under section 2(p) read with section 18(1) of the Industrial Disputes Act, 1947. Prior to arriving at the said settlement, the workmen had resorted to strike on and from 14th May, 1979. By the terms of the said settlement, the union agreed to call off the strike and the company agreed to make various payments to the workmen and settle other claims. As far the orders of dismissal passed against the three workmen i.e. respondent Nos. 1, 2 and 3 in Writ Petition No. 2973 of 1987 are concerned, it was provided by clause 6 of the said settlement that the adjudication proceedings will continue but in the meanwhile the management shall make payment of an amount equivalent to 80 per cent of the last drawn monthly wages of the workmen till the ultimate decision in the dispute. It was specified in clause 6 of the said settlement that respondent No. 1 will be paid Rs. 700/- per month, respondent No. 2 will be paid Rs. 900/- per month and respondent No. 3 will be paid Rs. 700/- per month. Various other provisions were made in the said settlement which need not be set out in this judgment. In view of the said settlement, a purshis was filed before the Industrial Tribunal by the parties recording the factum of the said settlement and requesting the Tribunal to make an award in terms of the said settlement in respect of the matters covered under the said settlement. On 10th January, 1980, the Industrial Tribunal made its Award Part I in terms of the said settlement. As regards the claim of respondent Nos. 1, 2 and 3 workmen seeking reinstatement and full back wages and continuity of service is concerned, the reference was proceeded with on merits. The Industrial Tribunal framed three issues during the course of the said adjudication proceedings. The said three issues are as under:-
(1) Whether the enquiries ag
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