Kelvion India Pvt. Ltd. v. Shivaji Tukaram Gawari

1) These petitions are filed by the Petitioner-employer challenging Part-I Award (order on preliminary issues) passed by the Presiding Officer, Labour Court-4, Pune on 17 October 2024 relating to perversity in the findings of the Enquiry Officer. The Labour Court has held that the departmental enquiries conducted against the Respondent-workmen are legal, fair and proper. However, it has held that the findings recorded by the Enquiry Officer are perverse.

2) The Petitioner is engaged in the business of manufacturing compact fin heat exchangers, plate heat exchangers, single tube heat exchangers, transformer cooling system etc and also provides solutions to various industries, including transportation, energy, oil, gas etc. Respondents were working with the Petitioner in various positions as workmen. Respondents were served with the chargesheets on 3 March 2020 in connection with incident that allegedly occurred on 19 February

2020. It was alleged in the chargesheets that on 19 February 2020 at about 7.00 a.m. office bearers of Shivkranti Kamagar Sanghtana called upon the workmen to gather at the gate of the factory. Instead of starting the work and performing normal duties, the workmen gathered in front of the gate of the factory. That the Managing Director of the Company attempted to pacify the union leaders, as well as the entire mob of the workmen and repeatedly requested them not to resort to any indiscipline and to commence the work. However, the mob of the workmen refused to act on the request of the Managing Director and later became violent. It is alleged that the mob broke glasses, threw stones on the bus and security cabin. The Company was left with no option but to call the police. The crowd went on rampage till arrival of the police at 9.00 a.m. The police disbursed the mob and arrested the union leader and few others. It was alleged that since 20 February 2020, the Respondent-workmen did not report for work. It was alleged in the chargesheet that the acts committed by the Respondent-workmen amounted to illegal strike causing unprecedent damage and loss to the Company. It was alleged in the chargesheet that the Respondent workmen committed serious misconduct under Clauses-24(a), 24(b), 24(k) and 24(l) of the Model Standing Orders.

3) The Respondent-workmen submitted their respective replies to the chargesheets on/or about 16 March 2020. The supplementary chargesheet was issued on 20 January 2021 alleging unauthorised absence from 20 February 2020 and misconduct under Clause-24(f) of the Model standing orders. By the supplementary chargesheet, a practising advocate was also appointed as Enquiry Officer. The Enquiry Officer conducted enquiry and submitted report dated 28 September 2021 holding that misconduct under Clauses-24(a), (k) (l) and (f) was fully proved. The misconduct alleged under Clause- 24(b) was held to be disproved. The Petitioner passed orders dated 29 September 2021 dismissing the Respondent-employees from service based on the findings of the Enquiry Officer.

4) At the instance of the Respondents, References were made by the appropriate Government to Labour Court-4, Pune relating to termination of services of the Respondent-workmen under Section 10 of the Industrial Disputes Act, 1947. The Respondent-workmen filed their Statements of Claim, which were resisted by filing Written Statements by the Petitioner-employer. The Labour Court proceeded to frame preliminary issues relating to fairness in the enquiry and perversity in the findings recorded by the Enquiry Officer. By the impugned orders dated 17 October 2024, the Labour Court has held that departmental enquiry conducted against the Respondent-workmen is legal, fair and proper. However, issue no.2 is answered by the Labour Court against the Petitioner-employer by holding that the findings recorded by the Enquiry Officer to the extent of charges under Clauses-(a), (k), (l) and (f) of MSO, 2024 are perverse. Petitioner is aggrieved by orders dated 17 October 2024 passed by the Labour Court on preliminary issue relating to perversity in the findings of the Enquiry Officer and has accordingly filed the present petition.

5) I have heard Mr. Bapat, the learned senior advocate appearing for the Petitioner. He would submit that the Labour Court has erred in holding that the findings of the Enquiry Officer are perverse. That there is sufficient evidence on record to prove all the four allegations under Clauses-(a), (k), (l) and (f) of the MSO, 2024. He would submit that the enquiry has been held to be legal, fair and proper and therefore the entire evidence recorded during the course of enquiry will have to be considered and consideration of which would clearly indicate existence of sufficient material to bring home the charges levelled against the Respondents. He would submit that the Labour Court has completely misdirected itself in recording the finding that the Respondentworkmen were not involved in the act of pelting of stones and indulging in violence. He would submit that the Respondent-workmen were never charged with the misconduct of pelting stones or being violent. That the charges were restricted to gathering in front of the gate of the factory by leaving work, insubordination, indiscipline and disorderly behaviour. That these elements of charges are clearly proved in the present case as Respondent-employees themselves admitted that they had gathered at the gate and had left the work. So far as the allegation of disorderly behaviour, insubordination and indiscipline is concerned, the same is clearly proved in the light of deposition of witness, Balu Zodge, who has personally witnessed the incident. However, the Labour Court erroneously assumed that the allegation of pelting stones and being violent was also levelled against the Respondent-workmen and held the findings of the Enquiry Officer to be proved on such erroneous presumption.

6) So far as the allegation of remaining unauthorisedly absent since 19.2.2020, Mr. Bapat would contend that absence from duties from 19.2.2020 is not seriously disputed. That the Management examined the witness, Shri. Swapnil Mahamuni, Ex.HR who led evidence about Respondent-workmen not reporting for duties after 20.2.2020. That they were absent for long period from 20.2.2020 till 20.1.2021. That the said witness was competent to give evidence relating to absence of the Respondent-workmen by producing the records maintained by the company. That therefore witness joining employment with the Petitioner in March 2020 would not render him incapable of leading evidence about absence of Respondent-workmen from service. He would submit that witness-Swapnil Mahamuni was examined essentially to prove unauthorised absence of the respondent-workmen. The incident which occurred on 19.2.2020 was witnessed by Balu Zodge and he has led evidence about the same. Mr. Bapat would accordingly submit that there is sufficient evidence on record to prove the charges.

7) Mr. Bapat would further submit that since the Respondentworkmen had engaged themselves in disorderly behaviour and serious incident had occurred on 19 February 2020, the Management was in its right to ask for undertaking/bond of good behaviour. He would submit that several similarly placed employees gave such undertakings/bonds and were immediately permitted to resume duties. That Respondent-workmen are responsible for their absence from duties as they refused to submit undertaking/bond as they were never interested to work with the Petitioner. In support of his contention that the Petitioner-employer was entitled to insist on bond of good behaviour, Mr. Bapat would rely upon judgment of this Court in Maharashtra Labour Union Versus. Pride Hotel Pvt. Ltd. & Anr.[1] Mr. Bapat would further submit that it was incumbent on the Respondentworkmen to raise a specific prayer in the Statement of claim for a declaration that the findings of the Enquiry Officer are perverse and that in absence of such a declaration, it was beyond the jurisdiction of the Labour Court to issue the same. In support he would rely upon judgment of this Court in Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & Anr. Versus. Vasant Ambadas Deshpande[2]. Mr. Bapat would accordingly pray for setting aside the impugned orders dated 17 October 2024 to the extent of findings of perversity.

8) The petitions are opposed by Mr. Kulkarni, the learned counsel appearing for the Respondent-workmen. He would submit that the Labour Court has rightly held the findings of the Enquiry Officer to be perverse. He would submit that none of the Respondent-workmen have committed any misconduct who were unnecessarily embroiled in disciplinary proceedings and later thrown out from service. That there is no allegation in the chargesheet that any of the Respondent-workmen indulged in any violent act. The Respondent-workmen had merely gathered at the gate and did not associate themselves with any of the violent activities. However, the Petitioner-Management forced all the workmen to sign undertakings by admitting acts which were not committed by them. That the Respondent-workmen rightly refused to sign such undertakings which would have amounted to admission of something which was never done by them. He would take me through the undertakings submitted by the other workers in support of his contention that the undertakings were prepared by the Management and contained admissions of acts not performed by the workmen. He would submit that about 120 workmen were restrained from joining duties. Nine out of them submitted undertakings and 57 workmen later settled with the Management and were allowed to resume work. The dispute was raised in respect of 36 workmen. In respect of four workmen, the entire enquiry is held to be vitiated and the said findings are not questioned by the Petitioners. In respect of one workmen, the Labour Court held that the enquiry was fair and proper and the findings were not perverse. It is only in case of 31 present respondents that the findings of the Enquiry officer are held to be perverse though enquiry against them is held to be fair and proper.

9) He would submit that the Labour Court has rightly appreciated the entire evidence on record. That witness-Mahamuni was not even in employment was examined to lead evidence about the incident of 19.2.2020. That the other witness-Balu Zodge was one of the similarly placed workmen and his evidence does not bear out any act of misconduct on the part of the Respondent-Workmen. That the chargesheet did suggest involvement/role of the respondent-workmen in the violent act of stone pelting but no evidence could be led by the Petitioner in support of the said evidence. So far as the submission of undertakings as a precondition for resumption of duties is concerned, Mr. Kulkarni would rely upon judgment of this Court in Stardent Laboratory (Private) Ltd. Versus. Shramik Sahakar Sangh and Ors.[3] He would submit that findings of facts recorded by the Labour Court on appreciation of evidence do not warrant any interference by this Court under Article 227 of the Constitution of India. He would pray for dismissal of the petitions.

10) Rival contentions of the parties now fall for my consideration.

11) The Labour Court has held the enquiry to be fair and proper and the said findings are not questioned by the Respondentworkmen. It is only Issue no.2 relating to perversity, which has been answered against the Petitioner and in favour of the Respondentworkmen. Therefore, the limited issue involved in the present petitions is whether the findings recorded by the Labour Court on preliminary Issue No.2 relating to perversity are sustainable or not? 3 2004 (2) L.L.N. 955 12) Petitioner issued two chargesheets to the Respondentworkmen. The first chargesheet dated 3.3.2020 issued to one of the Respondent-Shivaji Tukaram Gawari is as under: CHARGE SHEET You are working in the company as Press Operator. On 19/2/2020 at about 7:00 a.m. the office bearers of Shiv Kranti Kamgar Sanghatana asked you to come to the gate of the factory. Instead of starting work and performing your normal duties you gathered in front of the gate of the factory. Mr.Virendra Jhamb, Managing Director of the company tried to talk to the leaders and the entire mob of the workmen. He repeatedly requested them not to resort indiscipline and start the work. "The entire mob was unwilling to listen. The mob became violent. They broke the glasses, threw stones on the bus and security cabin i.e. resorted to violence. In view of the same the company was left with no other option but to call the police who came to the gate of the factory at around 9:00 am.. Till that time the crowd was on rampage and we heard Sandeep, the declared leader was talking to one Mr. Vijay Palekar who was issuing instructions. Our MD requested the phone from Sandeep and talked to Mr. Vijay Palekar and asked him to stop instigating and request all workers to come inside and talk all peacefully the reason of this stoppage, we fail to understand the reason. As the time and again untenable pressure tactics are spoiling the discipline and work ethics in the workers and we are loosing the productivity and bringing liability, this will not help us to help the worker's interests. The police then disposed the mob and arrested Union Leader and others. Since that day i.e. 19/2/2020 you have not reported for work The aforementioned act on your part amount to an illegal strike. It is causing unprecedented damage and loss to the company. All these/acts on your part amounts to serious misconducts under Clause 24 (a), 24 (b) 24 (k) & 24 (l) of the Model Standing Orders applicable to your category which are as under: 24(a):Willful insubordination or disobedience, whether or not in combination with another, or any lawful and reasonable order of a superior, 24 (b): Going on an illegal strike or abetting, inciting, instigating or acting in furtherance thereof, 24(k): Drunkenness, riotous, disorderly or indecent behavior on the premises of the establishment. 24 (l): Commission of any act subversive of discipline or good behavior on the premises of the establishment. You are hereby charged of the aforementioned misconducts and are directed to submit your written explanation to the aforementioned charges and show cause as to why disciplinary action should not be taken against you. In the event you do not reply within one week from the receipt of this charge sheet, it shall be presumed that you have no explanation to offer and the management shall then be free to take such action as deemed fit. For Kelvion India Pvt. Ltd.

13) The second chargesheet was issued on 20 January 2021 which was a composite document of alleging additional charge, as well as appointing enquiry officer. The relevant part of the chargesheet dated 20.1.2021 reads thus: दि नांक १९/०२/२०२० रोजी घडलेल्या घटनेचे गांभीय दि चारात घेता व्य स्थापानाने क ं पनीच्या एक ू ण सुरक्षि(तेतच्या दृष्टीने तसेच क ं पनीच्या मालमत्तेचे नुकसान हो ू नये म्हणून तुम्हास स र घटनेत सहभागी असलेल्या इतर कामगारांना रास्त योग्य असे चांगल्या ागणुकीचे हमी पत्र े ून कामा र रूजू होण्यास सुचीत क े ले होते. त्या नूसार तुमचे काही सहकामगार हमी पत्र े ून कामा र रुजू झाले. तथादिप, तुम्ही दि नांक २०/०२/२०२० पासून आजतागायत कोणतीही रजा मंजूर करून न घेता अनक्षि:क ृ तरिरत्या कामा र गैरहजर राहीला आहात. कोव्हीड १९ च्या कारणे क ं पनीचे कामकाज हे लॉक डा ून काला:ीत सुध् ा दिनयदिमत सूरू होते स र काला:ीत तुमची कामा रील हजेरी ही अत्यंत आ श्यक होती परंतु स र काळातही र नमु क े ल्या प्रमाणे तुम्ही अदिनक्षि:क ृ तरिरत्या गैरहजर राहीलात.

14) This is how Respondents were accused of committing misconducts under Clauses -24(a), 24(b), 24(k), 24(l) and 24(f) of the MSO. The Enquiry Officer held that the misconduct under MSO-24(b) (proceeding on illegal strike) was not proved in the enquiry. Thus, the allegation of proceeding on strike under MSO-24(b) is held to be disproved in the enquiry itself. Therefore, the Labour Court was required to examine the correctness of the findings recorded by the Enquiry Officer only in respect of Clauses-24(a), 24(k), 24(l) and 24(f) of the MSO.

15) Mr. Bapat has fairly submitted that the Petitioner never accused the Respondent-workmen of pelting stones or engaging in acts of violence. He would submit that so far as the incident of 19 February 2020 is concerned, the same is restricted to the acts of gathering at the gate by leaving the work and acts of insubordination, indiscipline and disorderly behaviour. On account of fair submission made by Mr. Bapat, the task is now easier as this Court needs to consider whether there is sufficient evidence on record in support of the allegations of (i)gathering at the gate by leaving work and (ii)insubordination, indiscipline and disorderly behaviour. Both these elements of charges are pertaining to the incident that occurred on 19 February 2020.