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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. S. KHANDEPARKAR & DR. D.Y. CHANDRACHUD, JJ.
M/s. Sylvester & Co. Sylvester Building — Appellant.
Versus
Their Workman through — Respondents.
APPEAL NO.NO.1094 OF 1997
IN WRIT PETITION NO.3131 OF 1991
Decided on : June 13, 2007.
Industrial Disputes Act, 1947 - Sections 10(1) and 25-F-Termination from service-Due to laps in duties-Termination without inquiry-No compliance of Section 25-F of I.D. Act- Application for reinstatement-Tribunal ordered reinstatement with backwages- Confirmed in writ petition-Challenged-Held-Appeal allowed in post.-The order of termination dated 27th June, 1986 postulates that the management had lost confidence in the workman and that this services were being discharged simpliciter with effect from 1st July, 1986. The termination of services is premised on major lapses/omissions and dereliction in duties of which details are contained in two parts of the order. The first part deals with acts of commission and omission between 1978 and 1983, while the second, deals with allegations between the period 1984 and 1986. The allegations which are contained in the letter of termination ex facie involve serious acts of misconduct. As the letter itself sets out these charges include habitual and frequent absentism, misappropriation of the moneys belonging to the employer, misrepresentation of facts and false claims to overtime. The allegations in the letter of termination cover a whole gamut of misconduct including acts of cheating and defrauding, misbehaviour with other work- men and negligence in the discharge of duties. The employer has failed to establish any reason or justification before the Industrial Tribunal and before the single Judge for dispensing with a disciplinary enquiry. Even before this Court, in appeal, it has not been the submission of the employer that there were valid or justifiable reasons for dispensing with the disciplinary enquiry or that the circumstances were such that it was impossible to hold an enquiry in which the charges of misconduct could be sustained on the basis of evidence adduced on the record.
The letter of termination ex facie demonstrates that the termination of service was founded on allegations of misconduct against the workman. Indeed, the written statement by the employer before the Industrial Tribunal showed that the submission of the employer was that the workman was being terminated from service on grounds of misconduct.
Court confirm the finding of the single Judge that the reference before the Tribunal was validly made by the Central Government since the Central Government is the appropriate Government within the meaning of Section 2(a)(i) of the Industrial Disputes Act, 1947. Court also hold that the termination of service in the present case was not an act of discharge simpliciter but was a punitive termination for misconduct. No disciplinary enquiry was held. The employer having made a request to that effect in the written statement, he would be entitled to an opportunity to lead evidence before the Industrial Tribunal to substantiate the charge of misconduct. To the aforesaid extent, we quash and set aside the judgment and order of the single Judge and the Part-II award of the Industrial Tribunal in so far as it awards reinstatement with backwages and continuity of service. Court remand the proceedings back to the Industrial Tribunal which shall permit the employer to lead evidence to substantiate the alleged misconduct. The workman would, it is needless to add, be at liberty to adduce evidence in rebuttal.
On a reference to adjudication under Section 10 of the Industrial Disputes Act, 1947 made by the Central Government on 15th October 1987, the Industrial Tribunal held: (i) By an award, Part-I, dated 1st September 1989, that the Central Government was the appropriate Government within the meaning of Section 2(a) and the Tribunal had jurisdiction; (ii) By an award, Part-II, dated 1st February 1991, that the termination of the services of the workman without holding a disciplinary enquiry was invalid and the workman was entitled to reinstatement with full back wages and continuity of service from 1st July 1986. The management challenged the awards in proceedings under Article 226 of the Constitution. The Learned Single Judge of this Court, by an order dated 3rd March 1997, affirmed the award. The judgment of the Learned Single Judge has been impugned in the present proceedings in appeal.
2. The Appellant carries on business of a Clearing and Forwarding agent. The workman was engaged as a Docks Clerk on 1st October 1978. On 27th June 1986, the management terminated the services of the workman on the ground of a loss of confidence. The subject of the letter was as follows:
“Loss of confidence due to persistent and deliberate lapses in duties inefficiency, habitual and frequent absenteeism, misappropriation of Company's money, misrepresentation of facts & false claim of overtime etc.”
The letter of termination records that since his appointment, the workman had committed “major lapses/omissions and dereliction in duties” which were then indicated as follows:
“1) Withholding 9 Way Bills pertaining to Voltas Limited for over a week, instead of handing these over to the office on the very day, thereby making the company liable for demurrage – Company's warning dated 27.12.78.
2) Frequent absentism without prior intimation/permission and availing excess leave when not due. Memoranda dated 13.6.79, 30th October 1981, 24th April 1982 & 8th May 1982.
3) Cheating company in collaboration with Mukadam (showing engagement of extra labour) warning dated 30-11-78.
4) Delay in payment of wharfage and effecting delivery - Memo dated 18.3.80.
5) Dereliction in duties & disobeying office instructions – Memoranda dated 7th April 1980, 3rd May 1980 & 7th May 1980.
6) Inefficiency – Memo dated 2nd Sept. 1980.
7) Defrauding Company by claiming excess delivery charges – Memo dated 26th November 1980.
8) Gross dereliction in duties & flouting instructions and replying show cause notice for over 2 months – Memo dated 29th April 1981.
9) Not submitting the accounts of incidental expenses incurred in time as required – Memo dated 22nd April 1982.
10) Misbehaviour with Foreman of Stevedores and giving misleading information to office – Memo dt. 11.8.82.
11) Incurring unnecessary expenditure without permission sanction -Memo dated 20th December 1982.
12) Telling lies and violating office instructions – Memo dated 5th February 1983.
13) Reporting for duty habitually late in spite of warnings – Memo dated 5th February 1983.”
The letter records that in spite of repeated advice and warnings, the workman had continued to indulge in several “lapses, omissions and commissions” which where spelt out thus:
“i) Failing to register the containers at Manganese Ore Depot, in spite of specific instructions given to you and thereby incurring demurrage – Memo dated 19th September 1984.
ii) Despatching wrongly the sample fibres to various transporters without keeping office copies of the challans. Memo dated 17th July 1985.
iii) Fraudulent claim of overtime - Memo dated 13th August 1985.
iv) Negligence in tracing container No.TRIU 2800696-your explanation dated 3.4.86 for failing to trace the container is grossly unsatisfactory. Because of your deliberate negligence in tracing the container, the company is liable to steamer agents charges of Rs.4500/- together with container detention charges. This should have been recovered from you bu
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