Dismissed

Shri. Dhananjay S. Kamodkar v. M/S. Motor Industries Co. Ltd.

Bombay HC3 Oct 2023WP/11376/2019

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a writ petition challenging the Labour Court's award dismissing a trade unionist for termination due to chronic unauthorized absenteeism. The court upheld the dismissal, rejecting the claim of illness as the petitioner failed to produce medical evidence during the original inquiry.

What did the court decide?

Writ petition dismissed; Labour Court Awards upheld.

Shri. Dhananjay S. Kamodkar Vs M/S. Motor Industries… — Service and Employment | Bombay HC (2023)

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Ajay

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 11376 OF 2019

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Dhananjay S. Kamodkar

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Age: 45 years; Adult Indian Inhabitant,
Occu: Unemployed,
R/at: Manmad, Taluka: Nandgaon,
District: Nashik....Petitioner

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 Versus

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M/s. Motor Industries Company Ltd.

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Plot No.75, M.I.D.C., Satpur,
Nashik – 422 007....Respondent

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Mr. R. V. Sankpal a/w. Ms. Pinki Chavan i/by R. V. Sankpal and Associates for the Petitioner.

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Mr. Kiran Bapat, Senior Advocate a/w. Mr. T. R. Yadav i/by M/s. Desai and Desai Associates for Respondent.

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CORAM:MILIND N. JADHAV, J.
DATE:OCTOBER 3, 2023

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JUDGMENT:-

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1. Heard Mr. Sankpal and Ms. Chavan, learned Advocates for

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Petitioner and Mr. Bapat, learned Senior Advocate for Respondent.

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2. This Writ Petition is filed under the provisions of Articles

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226 and 227 of the Constitution of India challenging the order dated
01.09.2015 passed under Exhibits “U-30” and “U-31” and Awards
dated 23.11.2017 and 28.11.2018 passed in Reference (IDA) No. 44 of
2002 by the Labour Court, Nashik thereby upholding the termination
of the Petitioner by the Respondent.

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3. By consent of the learned Advocates appearing for the respective parties, Writ Petition is heard finally at the stage of admission.

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4. Briefly stated the facts necessary for adjudication of the present case are outlined hereinunder:-

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4.1. In the year 1990, Petitioner joined Respondent – Company as an Operator.

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4.2. On 09.07.1998, Petitioner was issued first charge-sheet for unauthorised absenteeism of 16 days in the year 1997 – 1998. On 31.05.1999, Petitioner was issued second charge-sheet for unauthorized absenteeism of 40 days in the year 1998. On 02.09.1999, Petitioner was issued third charge-sheet for unauthorised absenteeism of 66 days in the year 1999. On 09.05.2000, Petitioner was issued fourth charge-sheet for unauthorised absenteeism of 119

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days in the year 1999-2000.

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4.3. In the interregnum during the year 1996-2001, Petitioner was warned by Respondent – Company on various occasions for habitual late attendance and loitering in the Respondent - Company.

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4.4. On 17.05.2000, enquiry was conducted by Enquiry Officer on the basis of above 4 charge-sheets submitted to him and an equal and fair opportunity was accorded to Petitioner to defend his case. However, Petitioner chose not to file written statement or reply in the enquiry proceedings and rather categorically admitted his guilt of committing misconduct as stated in the charge-sheets. It is pertinent to note here that the Enquiry Officer in clear words asked the Petitioner if he admitted the charges levelled against him owing to any pressure or inducement, to which Petitioner categorically answered in the negative and replied that he accepted all charges of misconduct levelled against him out of his own free will. Therefore, Enquiry Officer filed his report dated 03.02.2001 thereby returning findings that evidence on record and the charges of misconduct levelled against Petitioner were accepted by him and therefore stood proved and forwarded the same to Respondent – Company for further action.

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4.5. On the basis of findings returned by the Enquiry Officer, on 03.10.2001, Respondent – Company issued show – cause notice to Petitioner and enclosed the Enquriy Report alongwith it and gave one

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more opportunity to Petitioner to offer his reasonable explanation.
However, Petitioner once again failed to reply to said show-cause
notice. Eventually on 10.10.2001, Respondent – Company issued
termination letter to Petitioner and terminated his services on account
of the above incidents of misconduct totalling to absenteeism of 357
days.

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4.6. On 19.12.2001, Petitioner raised a demand seeking withdrawal of his termination and reinstatement with full back wages and continuity of service and sought intervention of the Labour Commissioner on the ground that he was induced to admit the charges levelled against him during the Enquiry proceedings. Since the dispute was not settled, same was referred to the learned Labour Court by Reference (IDA) No.44 of 2002.

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4.7. Petitioner filed his Statement of claim at Exhibit “U-12” before the learned Labour Court praying for various reliefs i.e. reinstatement with continuity of service and full back wages. Petitioner’s subsequent defence was that he did not get his leave sanctioned from the Respondent – Company owing to his ill-health and subsequently he sent letters attaching Doctor’s medical certificate to justify his absenteeism from work at all times. Petitioner submitted on record various medical certificates issued by different Doctors to justify his absenteeism from work, however the same were not

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exhibited. Labour Court framed preliminary issues below Exhibit “O-
7”. Petitioner filed Application below Exhibit “U-30” supported by his
affidavit below Exhibit “U-31” for permission to rely upon various
documents in support of his case.

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4.8. By order dated 01.09.2015, learned Labour Court dismissed his Application below Exhibit “U-30” holding that the additional documents i.e. material which was sought to be relied upon by Petitioner before the Labour Court was not produced by him before the Enquiry Officer and hence it could not be considered in deciding Part-I Award relating to the fairness, legality and propriety of the enquiry conducted by Enquiry Officer.

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4.9. Petitioner led evidence of two witnesses in support of his case before the Labour Court namely himself and one Mr. Babulal Mahadu Jadhav, Member of the Trade Union in the Respondent – Company. Respondent – Company led evidence of one witness by filing Affidavit-in-lieu of evidence below Exhibit “C-21”. After hearing both parties, Labour Court passed Part-I Award on 23.11.2017 holding that the departmental enquiry conducted by the Enquiry Officer was fair, legal and proper and findings returned by him were not perverse.

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4.10. After conclusion of trial and due consideration of the evidence led and material placed on record, on 28.11.2018, Labour Court passed Part-II Award thereby holding that punishment of

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dismissal / termination awarded to Petitioner by Respondent -
Company was not illegal or disproportionate and Petitioner was not
entitled to any relief whatsoever.

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4.11. Being aggrieved, Petitioner filed the present Writ Petition.

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5. Mr. Sankpal alongwith Ms. Chavan, learned Advocates appearing for Petitioner would submit that during the enquiry proceedings conducted by Enquiry Officer, Respondent – Company’s then Personnel Manager – Mr. S. B. Deshpande had assured the Petitioner that conduct of enquiry was a mere formality and no action would be taken against him if he admitted the charges. Hence Petitioner admitted and accepted the charges in the charge-sheets levelled against him. It is submitted that Petitioner never committed any misconduct of unauthorized absenteeism as alleged in the various charge-sheets, but he remained absent due to his illness and he filed timely Applications informing the Respondent - Company alongwith medical certificates issued by the treating Doctors. It is submitted that enquiry conducted was not fair and proper and in complete violation of the principles of natural justice.

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6. It is further submitted that Petitioner was not accorded a fair opportunity to defend his case as his Application for production of

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additional documents was dismissed by the Labour Court on the
ground that he was relying upon documents which were not produced
during the enquiry proceedings. Hence, according to Petitioner both
Award Part-I dated 23.11.2017 and Award Part-II dated 28.11.2018
passed by the Labour Court deserved to be quashed and set aside and
he be reinstated in service with continuity of service and full back
wages from the date of his termination.

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7. PER CONTRA, Mr. Bapat, learned Senior Advocate appearing for the Respondent - Company would submit that in the present case, no fault can be found with the Awards passed under Part–I and Part-II by the Labour Court, in view of the fact that Petitioner has been remaining absent repeatedly over the years and was issued 4 charge-sheets in conjunction over a period of 4 years for unauthorised absenteeism for work without intimation to the Company. He would submit that considering the nature of employment of Petitioner as a Machine Operator in the Respondent – Company such repeated and chronic absenteeism led to disruption of the production processes and it was detrimental to the Company’s interest. He would submit that at all times Petitioner gave one and the same reasons i.e. about his illness. What is pertinent to be noted according to Mr. Bapat is the fact that at all times Petitioner remained

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absent without intimation or even seeking permission on account of
his alleged illness. He would submit that Petitioner was therefore
warned on several occasions which is admitted fact. Next he would
submit that during the enquiry proceedings Petitioner accepted and
admitted his guilt and the charges levelled against him in the 4 charge-
sheets. Hence he would submit that considering the fact that Petitioner
had admitted his habitual and repeated unauthorised absenteeism
from work. No fault can be found with the above Awards passed
under Part-I and Part-II by the Labour Court. He would submit that
there is absolutely no denial of the principles of natural justice in the
Petitioner’s case in all 3 forums namely before the Enquiry Officer and
thereafter before the Labour Court during the proceedings under Part-I
and Part-II Award having been passed. Hence he would submit that
the impugned Awards deserves to be sustained and the Petition
deserves to be dismissed with costs.

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8. I have also perused the charge-sheets issued by the Respondent – Company to Petitioner. For the purpose of reference and convenience, only the last charge-sheet dated 09.05.2000 is scanned and reproduced below:-

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9. As can be seen from the charge-sheet, Petitioner has remained repeatedly, continuously and unauthorisedly absent on several dates and it was Respondent - Company’s case that such absenteeism has caused inconvenience in the working of the

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department. Hence Petitioner was charge-sheeted under certified
standing orders No.25 read with standing order No.24 for the
misconduct i.e. “Habitual absence without permission or without
sufficient ground or proper or satisfactory explanation” and “Absence
without permission for more than ten consecutive days or without
sufficient grounds or proper or satisfactory explanation”.

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10. It is also seen that Petitioner has been given an adequate opportunity of presenting his case. It is seen that the charge-sheet dated 09.07.1998 has been issued for unauthorised absenteeism for 16 days in the year 1997 and 16 days in the year 1998. The charge-sheet dated 02.09.1999 has been issued for remaining absent on 66 days during the year 1999 thereafter charge-sheet dated 09.05.2000 has been issued for remaining absent on 41 days during the year. It is further seen that in so far as the attendance report of Petitioner for the year 2000 and 2001, he has remained unauthorised absent for 176 days in the year 2000 and 181 days in the year 2001.

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11. It is seen that before the learned Labour Court Petitioner has submitted a chart in his Statement of Claim, stating the period, date and name of disease suffered by him and also name of Doctor under whom he was undergoing treatment. According to Petitioner, between 11.01.1996 to 27.09.2001 i.e. a period of five (5) years, he has remained absent on 23 occasions for various lengths of time. The

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names of disease suffered by Petitioner are entric fever, loose motion,
severe pain in abdomen, allergic bronchitis, viral fever, abdominal
colic, dysentry, fever, knee medication, influenza, infective hepatitis,
malerial hepatitis, penumonititis and the list is endless. What is
intriguing is the fact that Petitioner has been treated by atleast 13
Doctors whose names have appeared (sometimes repeatedly) in the
Statement of Claim. What is more intriguing is the fact that nothing
prevented the Petitioner from placing on record the above medical
documents before the Enquiry Officer during Enquiry proceedings. In
that view of the matter, rejection of Petitioner’s Application to
subsequently rely upon multiple Doctor’s certificates for treatment of
various illnesses is rightly rejected by the Labour Court by order dated
01.09.2015 passed below Exhibit U-30 and U-31.

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12. I have perused the Statement of Claim filed by Petitioner before learned Labour Court and it is seen that the entire burden and blame has been placed by Petitioner on the Management of Respondent – Company and the Union on ground that Petitioner thought that the Personnel Manager of the Respondent – Company would act as per the alleged assurances given by him to the office bearers of the Union of which Petitioner was a member. Such a stand of Petitioner deserves to be rejected at the outset as it is not only unbelievable but a mere camouflage to circumvent his unauthorised

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absenteeism repeatedly as has been noted and alluded by this Court
hereinabove.

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13. In that view of the matter, the termination of Petitioner cannot be said to be illegal at all. The Respondent – Company has followed principles of natural justice at the time of Enquiry proceedings. The issues have been appropriately framed and correctly answered with cogent reasons by the Labour Court as enumerated in paragraph Nos. 7 to 16 of the Award dated 28.11.2018 which cannot be disregarded in the facts and circumstances of the present case. It is pertinent to note that whenever Petitioner remained absent, Petitioner never informed or sought sanction of his leave even after resuming at work. Petitioner derelicted and did not follow the rules as per the Standing Orders issued by the Respondent – Company for getting his leave sanctioned. The Leave cards were never denied by Petitioner and they form an important piece of evidence for consideration on record.

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14. To sum up the above observations and findings, it is necessary to quote paragraph No.16 of the impugned Award dated 28.11.2018 which is self explanatory relating to chronic absenteeism of the Petitioner. Paragraph No.16 of the Award dated 28.11.2018 reads thus:-

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16. The misconduct about absenteeism is proved by the first party
in the enquiry by producing necessary documents which reveals
that the second party remained absent for total 225 days in the
year 1998, 1999 and in 2000 uptil April. The first party while
issuing the dismissal order dtd. 10.10.2001 to the second party
have mentioned about the past record, it appears that on 5
occasions he was warned for habitual late attendance and further
including the present 3 charge-sheets, another charge-sheet in
the year 1998 was also issued for 40 days absenteeism from
August to October and further that the second party again
remained absent during the pendency of domestic enquiry in the
year 200 for 176 days and in the year 2001 for 181 days.
Therefore, I do not find any reason to interfere in the
punishment imposed upon the second party by the first party in
view of such long absenteeism without prior sanction,
punishment of dismissal cannot be said be illegal or
disproportionate, the second party is not entitled for any reliefs.
The Authorities relied by the second party with due respect to the
same, the facts in cites case are different than in present case.
Therefore, in my view, the ratio cited case cannot be applied to
the present case. Thus, issue No.3 and 4 stands replied in the
negative.

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15. The reasons given in both Awards dated 23.11.2017 and 28.11.2018 are not only cogent but also believable and stand proven in the facts and circumstances of the present case and also substantiated on the basis of the evidence on record. Hence no fault can be found with both, Award dated 23.11.2017 as well as Award dated 28.11.2018. The Awards are thus upheld.

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16. In that view of the matter, the present Writ Petition deserves to be dismissed.

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17. Writ Petition is dismissed.

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Ajay

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Digitally signed AJAYTRAMBAK by AJAYTRAMBAKUGALMUGALE UGALMUGALE Date: 2023.10.26 15:13:07 +0530

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Shri. Dhananjay S. Kamodkar v. M/S. Motor Industries Co. Ltd.

Case brief

What is this about?

What did the court decide?

Shri. Dhananjay S. Kamodkar v. M/S. Motor Industries Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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