2003(4) ALL MR 657
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M.S. KHANDEPARKAR, J.
Brihanmumbai Municipal Corporation Vs. General Secretary, Best Workers' Union & Anr.
Writ Petition No.2376 of 2000
25th July, 2003
Petitioner Counsel: Shri. S. K. TALSANIA,M/s. Crawford Bayley & Co.
Respondent Counsel: Ms. SANGITA S. LIDKAR,Ms. Neeta P. Karnik
Industrial Disputes Act (1947), Sch 2, Item 3 - Bus conductor involved in trivial misconduct with fellow employee - Employee had put in ten years of service and there was no incident of assault on any of the fellow employees - Industrial Tribunal finding punishment of dismissal unwarranted and ordered reinstatement restricting payment of wages from date of dismissal to date of joining services - Held there was no need to interfere with the impugned order.
2. The petitioner challenges the judgment and order dated 16-8-2000, passed by the Industrial Court, Mumbai in Appeal (IC) No.169 of 1994 whereby the Industrial Court has set aside the quantum of punishment and has directed reinstatement of the respondent No.2 in the services of the petitioner, however, directing the payment of wages from the date of his joining pursuant to the order of the Industrial Court. It is not in dispute that pursuant to the said order passed by the Industrial Court and consequent to failure on the part of the petitioner to secure stay of the said order, the respondent No.2 has already been reinstated in the services and he continues to be in service of the petitioner.
3. Few facts relevant for the decision are that the respondent No.2 herein was chargesheeted under the Standing Order Nos.20(i) and 20(r) in relation to an incident which had occurred on 27-8-1990 in a moving vehicle of the petitioner being a double decker bus bearing No.4009 on route No.9 at the Tata Hospital stop, involving the respondent No.2 and one another bus conductor namely R. S. Shukla. Consequent to the enquiry conducted by the petitioner, the charges against the respondent No.2 were found established and by the order dated 26-2-1991 he was ordered to be dismissed from the service. The same was challenged before the Labour Court and by the order dated 14-9-1994 the Labour Court held that the enquiry was in a fair and proper manner and the findings arrived at by the enquiry officer were not perverse and also confirmed the punishment of dismissal imposed against the respondent No.2. The matter was carried in appeal before the Industrial Court and by the impugned order the Industrial Court ordered the reinstatement while restricting the payment of wages from the date of joining the service by the employee.
4. Bare perusal of the impugned judgment discloses that the Industrial Court after taking into consideration the past record of the employee as well as the unreported decision of this Court in the Writ Petition No.254 of 1995, delivered on 8-2-1995, in similar such facts, has held that the order of dismissal from the services was shockingly disproportionate to the charges of misconduct established against the employee and therefore has passed the impugned order. The past record of the respondent No.2 noted by the Industrial Court and revealed from the impugned judgment and order and not disputed by the petitioner, undoubtedly, does not disclose any history of assault by the employee on any of the fellow employees. The respondent No.2 had already put in service of ten years prior to the date of the incident. The misconduct noted earlier were of trivial nature and certainly no fault can be found with the finding of the Industrial Court that in the facts and circumstances of the case, the punishment of dismissal from the services was shockingly disproportionate to the misconduct proved against the respondent No.2 in the case in hand. There being already provision under the Standing Order No.21(d) empowering the employer to suspend the employees not exceeding the three months, depending upon the gravity of the offence, and considering that the respondent No.2 had suffered punishment by way of denial of back wages, during the period from the date of dismissal till the date of his joining to the services consequent to the impugned order, I do not find any justification for interference in the impugned order.