Godrej Appliances Ltd v. Rashtriya Kamgar Sanghatana And ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9126 OF 2023

1. Narottam Shivaji Sorathia

2. Rashtriya Kamgar Sanghtana } ....Petitioners : Versus :

1. Godrej Appliances Ltd.

Now Known as Godrej & Boyce Mfg.

Co. Ltd.)

2. S.M. Bulsara, Vice President, Manufacturing, M/s. Godrej Appliances Ltd.

3. Uday Desai, Sr. Manager-HRD & IR M/s. Godrej Appliances Ltd.

4. E.J. Kalwachia, Director, M/s. Godrej Appliances Limited }....Respondents WITH WRIT PETITION NO. 408 OF 2024 1 of

Godrej Appliances Ltd.

} ....Petitioner : Versus :

1. Rashtriya Kamgar Sanghatana & Anr.

2. Mr. Narottam Shivaji Sorathia } ...Respondents ____________________________________________________________ Mr. Rahul Patil, for the Petitioner in WP-9126-2023 and for Respondent in WP-408-2024.

Mr. Bharat Goel with Mr. Varun Rajiv Joshi and Mr. Chetan Arvind Alai, for the Petitioner in WP-408-2024 and for Respondent in WP9126-2023. _____________________________________________________________ CORAM : SANDEEP V. MARNE, J.

Judgment Reserved on : 5 July 2024.

Judgment Pronounced on : 11 July 2024.

J U D G M E N T :

1) These are cross-petitions filed by the employee and employer challenging the judgment and order dated 8 February 2023 passed by the Industrial Court, Thane in Revision (ULP) No. 16/2022. The Industrial Court has partly allowed the Revision Application and has modified the judgment and order dated 31 March 2022 passed by the Labour Court, 2 of

Thane in Complaint (ULP) No.54 of 2003 by reducing the backwages to 50%. The rest of the order of the Labour Court remains undisturbed which directs continuity of service from 24 June 2002 till retirement i.e. 27 March 2020. The employee has filed Writ Petition No. 9126 of 2023 challenging reduction of backwages to 50% by the Industrial Court, whereas the employer has filed Writ Petition No.408 of 2024 challenging the orders of the Labour as well as Industrial Court holding the termination to be illegal and directing 50% backwages with continuity of service.

2) Briefly stated, facts of the case are that the employee-Mr. Narottam Shivaji Sorathia was initially appointed in Godrej & Boyce Manufacturing Company Ltd. on 8 April 1980. He was confirmed in the service of as permanent employee as a Checker (Visual) by letter dated 2 February 1981. He was promoted as Vaccum Forming Opt./P.U. Foaming/Lohar in Grade-C on 5 April 1985, which promotion was confirmed on 5 October 1985. By letter dated 25 February 1993, services of the employee were transferred to M/s. Godrej GE Appliances Ltd., Vikhroli, Mumbai in the same plant and premises. He was promoted as Fitter, Grade-III by letter dated 16 June 1999 and was confirmed in that Grade by letter dated 4 January 2000. The name of 'M/s. Godrej GE Appliances' was changed to 'M/s. Godrej Appliances Ltd.'

(Godrej) which is a company engaged in manufacture and sale of multi products/appliances across the country and abroad. 3) A chargesheet dated 13 May 2002 came to be issued to the employee alleging habitual unauthorised absence during the years 1997 till April 2002.

conducted and Enquiry Officer submitted his report dated 20 June 2002 holding that the charges levelled were proved. Report of the Enquiry Officer was supplied to the employee by letter dated 20 June 2002. It appears that the employee did not submit his explanation. By order dated 24 June 2002, the employer-Godrej dismissed the employee from service.

4) The employee alongwith the Union, Rashtritya Kamgar Sangathana, filed Complaint (ULP) No. 54/2003 before the Fourth Labour Court, Thane challenging the dismissal order and seeking reinstatement w.e.f. 24 June 2002 with full backwages and continuity of service. The Labour Court delivered Part-I Award dated 23 April 2010 holding that the enquiry conducted against the employee was legal and proper and that the findings of the Enquiry Officer were not perverse. The Labour Court thereafter delivered final judgment and order dated 9 December 2015 dismissing the Complaint filed by the employee. 5) The employee filed Revision Application (ULP) No.8 of 2017 before the Industrial Court, Thane challenging the decisions of the Labour Court on preliminary as well as on final issues.

The Revision Application came to be partly allowed by the Industrial Court, Thane by judgment and order dated 26 April 2019. The Industrial Court set aside Part-I judgment dated 23 April 2010 as well as final judgment (Part-II) dated 9 December 2015 and held that the enquiry held against the employee was illegal and improper. The complaint was remanded to the Labour Court for decision afresh.

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6) It appears that during the pendency of the remanded complaint before the Labour Court, the employee attained the age of superannuation on 27 March 2020. After remand, employer-Godrej led evidence in proof of charges by examining Mr. Jahangir. The employee examined himself. The Labour Court proceeded to decide only Issue Nos.3 and 4 relating to engagement in unfair labour practices and granted relief in favour of the employee. The Labour Court held that the employee was dismissed by the employer by way of victimisation and that the employer failed to prove the charges levelled against the employee. After recording the finding of engagement in unfair labour practices, the Labour Court directed the employer-Godrej to pay the employee full backwages with consequential service benefits by treating continuity of service from 24 June 2002 upto his retirement on 27 March 2020.

7) The employer-Godrej filed Revision Application (ULP) No. 16 of 2022 before the Industrial Court, Thane challenging the judgment and order dated 31 March 2022 passed by the Labour Court. The Industrial Court has partly allowed the Revision filed by the employerGodrej and has modified the order of the Labour Court by reducing the backwages to 50%. The relief of continuity of service is not disturbed. 8) As observed above, the employee is aggrieved by the decision of the Industrial Court dated 8 February 2023 in reducing the backwages to 50% and has accordingly filed Writ Petition No. 9126 of 2023. The employer-Godrej is also aggrieved by the decision of the Industrial Court in granting 50% backwages and has accordingly filed 5 of

Writ Petition No. 408 of 2024. Both the petitions are being decided by this common judgment.

9) Mr. Goel, the learned counsel appearing for the employerGodrej would submit that the Labour and Industrial Court have erred in holding that the employer has failed to prove the charges against the employee. That the factum of employee not attending duties on the days reflected in the chargesheet is not disputed. That the Industrial Court itself has held that it was not the case of the employee that he did not remain absent from his job and that the chargesheet issued to him is on totally false grounds. He would submit that once the absence from duty is not disputed or is proved, the Labour Court has erred in drawing adverse inference against the employer on account of failure to prove the attendance muster or swipe card record.

That to prove the charge of absence, employer-Godrej did produce computer generated attendance sheet and the Labour Court erred in treating the same as unreliable. Mr. Goel would particularly highlight the finding recorded by the Labour Court in para-24 of the judgment that the employee admitted in the cross-examination that he was not paid wages on various dates of his absence. That the Labour Court has recorded a perverse finding that mere deduction in wages for absence of the employee could not be treated as unauthorised absence in the light of evidence on record that the complainant used to intimate his superiors about his absence. Mr. Goel would highlight continuous absenteeism on the part of the employee from the year 1997 till the issuance of chargesheet in the year 2002.

He would submit that the employer is well within the right to take disciplinary action against the employee who is found to be habitually indulging in unauthorised absence for a considerable period of time.

would submit that paying even 50% backwages to the employee would be like rewarding for his misconduct. He would therefore pray that the orders of the Labour and the Industrial Court be set aside and the complaint filed by the employee be dismissed. 10) Mr. Goel would also oppose Writ Petition No. 9126 of 2023 submitting that the prayer of the employee for payment of 100% backwages is totally misplaced in the light of non-existence of dispute about non-attending of duties by him on the relevant dates. He would pray for dismissal of Writ Petition No. 9126 of 2023. 11) Mr. Patil, the learned counsel appearing on behalf of the employee would support Writ Petition No.9126 of 2023 and oppose Writ Petition No.408 of 2024.

He would submit that the Industrial Court has erroneously reduced the backwages to 50% ignoring the fact that unemployment of the employee was proved. That the burden of proving gainful employment on the part of the employee rested on the shoulders of the employer and that there is nothing in evidence to show that the employee had any gainful employment after his unlawful dismissal. He would therefore submit that the Industrial Court's order dated 8 February 2023 reducing the backwages to 50% is totally erroneous and that the Labour Court's order granting 100% backwages deserves to be restored. So far as Writ Petition No. 408 of 2024 filed by the employerGodrej is concerned, Mr. Patil would submit that the employee is deliberately victimised since he refused to accept voluntary retirement scheme introduced by the Company in June 2002.

That the chargesheet was issued to the employee to pressurize him to opt for voluntary retirement.

the year 1997 for issuance of chargesheet after five long years. He would further submit that the charge of unauthorised absence is clearly afterthought in view of promotion of the employee in June 1999 and he was confirmed on the promotional post of Fitter, Grade-III in Grade-D w.e.f. 1 December 1999. That if indeed the service/leave record of the Respondent was not good, he would not have been rewarded by promotion. That the alleged absence upto 4 January 2000 is therefore deemed to have been condoned on account of grant of promotion. Mr. Patil would pray for dismissal of Writ Petition No. 408 of 2024. 12) I have considered the submissions canvassed by the learned counsel appearing for the parties and have gone through the judgments of the Labour and the Industrial Court, as well as the relevant records of the case produced by the parties.

13) The employee has been in service with various group companies of Godrej since 8 April 1990 and by the time he was dismissed from service, he had completed 22 years of service. There is no dispute to the position that he has been promoted from time to time as indicated above and was working on the post of Fitter, Grade-III in Grade-D w.e.f. 1 December 1999. The chargesheet dated 13 May 2002 issued to the employee levelled the allegations of habitual unauthorised absence during the years 1997 to 2002. It was alleged that the Respondent was unauthorisedly absent for following days: 8 of

Year No. of Days 27 days 37 days 39 days 55 days 35 days Upto April 2002 14 days 14) In the chargesheet, it was alleged that the employee was advised and counseled on various occasions in the past but he did not show any improvement. The Industrial Court, by judgment and order dated 26 April 2019, has already held that the enquiry conducted against the employee is illegal and improper. The said decision of the Industrial Court dated 26 April 2019 has attained finality. It is therefore not necessary to go into the issue of fairness of enquiry which is already held to be unfair and the said finding is accepted by the employerGodrej. 15) After remand of the complaint by the Industrial Court by the judgment and order dated 26 April 2019, it appears that the employer-Godrej led evidence of Mr. Jahangir.

It was admitted by the said witness before the Labour Court that the employer-Godrej had not issue any memo or notice to the employee during July 1997 to April 2002 before issuance of the chargesheet.

day. Mr. Jahangir admitted that as per the Standing Order, leave could be availed by giving oral intimation. The Labour Court therefore proceeded to hold that Respondent used to give telephonic intimations with regard to leave availed by him on particular days.

16) It is the case of the employee that issuance of chargesheet as well as dismissal order is directly attributable to introduction of Voluntary Retirement Scheme in June 2002 which was not availed by the employee. The Labour Court has drawn an inference that the employee is dismissed from service on account of his refusal to give resignation under the Voluntary Retirement Scheme. 17) Admissions are given by the employee that he did not receive wages for various days of absence. This, in my view, would sufficiently prove the fact that the employee did not actually work on the dates indicated in the chargesheet. If there was no dispute to the position that the Respondent did not actually work on the concerned dates. In my view therefore, conduct of enquiry by the Labour Court into production of attendance record was clearly unnecessary.

Therefore, the findings recorded by the Labour Court in paras-18 and 19 of the judgment about non-production of attendance record and drawing of adverse inference appears to be clearly unsustainable. Even the Industrial Court has recorded a finding in para-21 of its judgment that "but the documents filed by the respondent company before the Trial Court shows that he remained absent for considerable long time. It is not the fact that the complainant did not remain absent at all from his job and charge-sheet was given to him on totally false ground."

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18) After considering the evidence recorded by the Labour and the Industrial Court, it appears that the factum of employee not attending duties on the days indicated in the chargesheet is proved. The only issue is whether such absence from duty was authorised or unauthorised. The employee has taken a defence that he used to give telephonic instructions with regard to his absence from duties. The employer-Godrej has not produced the details of leave available and availed by the employee during 1997 to 2002. There is therefore nothing on record to indicate as to whether the absence alleged in the chargesheet was over and above the permissible leave in a particular year or not.

It appears that each day of absence during 1997 to 2002 is included in the chargesheet without specifying as to whether any of those days were adjusted against the leave due to him. The chargesheet does not contain any allegation that the days indicated therein were over and above the admissible leave of the employee. Even in the order of dismissal, there is no finding to this effect. Therefore, though the absence of the employee from service is proved, there is no sufficient material on record to indicate that the entire days of absence was unauthorised. When the employee took a defence that he used to give telephonic intimation to his superior, the concerned superior officer is not examined by the employer before the Labour Court after Part-I Award went against it.

I am therefore of the view that the charge of unauthorised absence on each of the days indicated in the chargesheet could not be proved by the employer-Godrej before the Labour Court. 19) It must however be observed here that the employee was remaining absent consistently every month during 1997 till April 2002.

His attendance record of the year 2000 particularly appears to be quite bad when he remained absent for 55 days. In the month of November, he was absent for 16 days and in October for 10 days. It is difficult to believe that the superior of the employees would allow him to remain absent for 16 days in November 2000 on mere telephonic intimation. Though the chargesheet is sought to be linked with Voluntary Retirement Scheme, the conduct of the employee in April 2002 appears to have triggered the chargesheet. According to the averment in para-3.5 of the complaint, the Voluntary Retirement Scheme was introduced in June 2002 and therefore there is no question of the employee choosing any option in May 2002 when the chargesheet was issued.

It therefore becomes difficult to believe that there was linkage between the chargesheet and Voluntary Retirement Scheme. On the contrary, the employee remained absent for 8 days in April 2002 which appears to be the cause for issuance of the chargesheet. In my view, the employerGodrej ought to have led concrete evidence before the Labour Court about leave account of the employee and ought to have demonstrated as to how many days of absence exceeded permissible leave in a particular year. Therefore, though absence of the employee was proved before the Labour Court, there remained a vacuum in evidence about its nature. For this lacuna on the part of the employer-Godrej, benefit of doubt will have to be given to the employee.

20) The employee had rendered considerable days of service with the employer-Godrej since the year 1980. True it is that his attendance record after the year 1997 is not above bar. At the same time, the employee appears to have been given promotion on the post of Fitter, Grade-III in Grade-D in June 1999 which was confirmed w.e.f. 1 of

December 1999 by issuing order dated 4 January 2000. I am sure that the employer must have taken into consideration the service record of the employee from the year 1997 when confirmation order was issued on 4 January 2000. Though grant of promotion, ipso-facto, cannot be a reason for inferring condonation of misconduct committed in the past, there are few decisions which do hold that promotion of the employee in the interregnum is required to be taken into consideration by the Court while considering validity of the punishment order. Reference in this regard can be made to the judgment in R. L. Rathore Versus. Delhi Power Supply Company Ltd.1 21) After considering the overall conspectus of the case, I am of the view that no inference is warranted in the order of the Industrial Court restricting the backwages to only 50%.

Though the charge is not fully proved, it is not disputed that the employee did not attend duties on the days alleged in the chargesheet. As observed above, his attendance record from the year 1997 onwards, particularly in the year 2000, does not appear to be satisfactory. Even if his attendance record prior to January 2000 is to be ignored, his record after February 2000 appears to be quite bad. In such circumstances, it would be unjust to award 100% backwages to the employee. The Industrial Court has rightly upheld the decision of the Labour Court to the extent of error in the dismissal order while reducing the amount of backwages to 50%. 22) I therefore do not find any valid ground to interfere in the order of the Industrial Court. Both the Writ Petitions accordingly fail. 1 106(2003)DLT566 : 2004 (2) AISLJ 265.

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23) Both the Writ Petitions are accordingly dismissed. There shall be no order as to costs.

24) The employer-Godrej shall pay 50% backwages to the employee by implementing the order of the Industrial Court dated 8 February 2023 within a period of 8 weeks.

[SANDEEP V. MARNE, J.] Digitally signed by NEETA SHAILESH SAWANT Date:

2024.07.12 11:33:14 +0530 NEETA SHAILESH SAWANT of