Dismissal From Service Is Disproportionate For Misconduct Of Overwriting Reasons Of Absence On Gatepass: Bombay High Court

Background Facts

Johnson Gomes (Workman) was working in the factory of Danfoss Systems Ltd (Employer). There was an allegation of forging the Gatepass and missing the work against the Workman. The Employer issued a chargesheet to the Workman in 2013 based on which a domestic enquiry was conducted and the services of the Workman were terminated. The Workman raised an industrial dispute which was referred to the Labour Court. The Labour Court in the Part-I Award held that held the enquiry held by Employer was legal, fair and proper and in accordance with principles of natural justice. However, the Labour Court delivered the Part-II Award wherein it held that the punishment of dismissal was shockingly disproportionate and directed the Employer to reinstate the Workman will full back wages and liberty to the Employer to impose a lesser punishment. Thus, the Employer filed the writ petition

It was contended by the Employer that the Workman had indulged in grave misconduct by forging the Gatepass. The past record of the Workman was also riddled with various misconducts. Further the Labour Court wrongfully held the punishment of dismissal to be shockingly disproportionate only on the ground of non-filing of FIR for the act of forgery.

On the other hand, it was contended by the Workman that the Employer did not prove that the Workman committed the act of forgery. The Workman merely carried out corrections in the Gatepass with no malafde intention. Further, the Workman was entitled to be paid wages under Section 17-B of the Industrial Disputes Act, 1947 from the date of the award in the light of pendency of the writ petition.

It was further contended by the Workman that Part-I Award merges into Part-II award and therefore the Workman was entitled to challenge the findings recorded in Part-I Award as well.

Findings of the Court

The court observed that Part I of the Award is passed against the Workman by holding that the enquiry conducted was fair and proper. Although the Workman contended that he was entitled to challenge both Part I and Part II of the Awards based on the merger of both Awards, the court was not inclined to agree with said proposition. The court observed that the Workman had neither chosen to challenge Part I nor Part II of the Award by filing his own petition. If the Workman had filed his own petition challenging Part II of the Award, he could've been permitted to question the findings of Part-I of the Award. However, in a writ petition by the Employer challenging the Part-II Award, the Workman cannot be permitted to show that the findings recorded by the Labour Court in Part-I Award are illegal.

The court further observed that the charges against the Workman were related to making alteration to the Gatepass. Although the Workman did not dispute that he made overwriting on the Gatepass, he denied any malafide intention in doing so.

The court observed that the misconduct committed by the Workman was not so grave so as to impose penalty of dismissal from service. Even if any malafide intention is imputed on the Workman, the only objective which could be achieved by overwriting the Gatepass was to save one day's leave. Thus, the Workman did not commit forgery with the objective of gaining any pecuniary advantage from the Employer.

The court further observed that the act of the workman in overwriting on the Gatepass by changing the reason for absence was definitely a misconduct and needs to be visited with a penalty but a harsh penalty of dismissal from service was not warranted.

Since the Workman had already superannuated, and based on the above observations, the court awarded a lumpsum compensation of 25 Lakh to the Workman and partly allowed the writ petition.

Case No.- WRIT PETITION NO. 1807 OF 2021

Case Name- Danfoss Systems Ltd vs Johnson Gomes

Counsel for the Petitioner- Mr. Sudhir Talsania, Senior Advocate with Mr. Mihir Beradia i/by. V.M. Legal, for the Petitioners.

Counsel for Respondents- Mr. B.S. Nayak, with Ms. Smita S. Solwat, for the Respondent.

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