The Bombay High Court has observed that imposition of extreme penalty of dismissal from service over stray act of sleeping on duty is disproportionate.

The Court was considering a Writ Petition challenging Industrial Court dismissing their Revision Application and confirming the judgment and order passed by the Labour Court whereby while allowing the Complaint filed by Respondent-employee, it had directed reinstatement with continuity of service with 50% backwages w.e.f. 31 August 2007.

The single-bench of Justice Sandeep V. Marne observed, "In the present case, there is nothing on record to indicate that his past record was blameworthy or that he was punished or any action was taken against him in the past. Therefore, his stray act of sleeping on duty would not constitute grave misconduct worthy of imposition of extreme penalty of dismissal from service. In my view therefore, though the charge is established on the basis of evidence led before the Labour Court, punishment of dismissal imposed on the Respondent is shockingly disproportionate to the proved misconduct."

The Petitioner was represented by Advocate Avinash Jalisatgi while the Respondent was represented by Advocate Dr. Uday Warunjikar.

It was alleged that one day when vigilance check was conducted by Manager (O & M) as well as Manager (P & A), it was found that Respondent was missing from his place of work without any prior permission and was found in the changing room sitting on the Bench and sleeping by putting his head and arm on the table. Respondent was placed under suspension pending the enquiry and was served with chargesheet alleging misconduct under Clauses 24(i) and 24(v) of the standing orders.

Domestic enquiry was held into the charges levelled against the Respondent by nominating an independent Enquiry Officer who found Respondent guilty of the charges. Respondent filed Complaint in Labour Court, Thane, challenging the dismissal order which eventually directed his reinstatement with 50% backwages.

Counsel for the Petitioner submitted that Respondent committed serious misconduct of sleeping on duty while being assigned with vital task of observing and maintaining the operations of Clarifloculator and that non-maintenance of vigilance during operations of Clarifloculator results in stoppage of operation of the entire Plant leading to heavy losses for the Petitioner-Company. He averred that the charge was duly proved by the Enquiry Officer by examining witness in the enquiry and that despite there being sufficient evidence on record about Respondent being found sleeping on duty, the Labour Court erred in passing Part-I Award.

The Court at the outset pointed out that in domestic enquiry, the test of proof of charge is preponderance of probability and it is not necessary for the Petitioner Management to prove charges beyond reasonable doubt.

"So long as there is some evidence in support of charge, Labour Court or Industrial Court cannot interfere in the punishment by going into the aspect of sufficiency of evidence. It is well settled law that courts and tribunals cannot go into the aspect of adequacy of evidence and only in cases where there is complete absence of evidence that Courts or Tribunals can interfere in the findings recorded in the domestic enquiry," the Court observed.

The Court concluded that there is sufficient evidence on record for proving the charge of sleeping on duty against Respondent and the findings recorded by the Labour and the Industrial Courts on this issue are clearly perverse and unsustainable.

"....in the present case, Respondent was not monitoring security or safety functions. Misconduct committed by a security guard or a person posted to guard an establishment can be viewed very seriously. In fact, I have taken a view in Prahlad Baburao Thale Vs. Union of India Writ Petition No. 3156 of 2017 decided by the Bench at Aurangabad on 20 August 2022 that a constable employed in Central Industrial Security Force carrying weapon if found sleeping on duty is a serious misconduct. However, in the present case, Respondent was apparently not entrusted with any security or safety related duties. Therefore, a single stray act of Respondent of sleeping on duty would not, in facts and circumstances of the case, construed a grave misconduct, worthy of throwing him out of service," the Court observed.

"In Bharat Forge Co. Ltd. (supra) though the employee was found sleeping on duty, his past conduct as well as his conduct during domestic enquiry proceedings was taken note of by the Apex Court. In the present case, there is nothing on record to indicate that his past record was blameworthy or that he was punished or any action was taken against him in the past. Therefore, his stray act of sleeping on duty would not constitute grave misconduct worthy of imposition of extreme penalty of dismissal from service. In my view therefore, though the charge is established on the basis of evidence led before the Labour Court, punishment of dismissal imposed on the Respondent is shockingly disproportionate to the proved misconduct," the Court further observed.

The Petition was accordingly disposed off with appropriate order.

Cause Title: M/s. Asahi India Glass Ltd. vs. Shri. Nadeem A. A. Dolare (2024:BHC-AS:48931)

Appearances:

Petitioner- Advocate Avinash Jalisatgi with Advocate Vaibhav Jagdale

Respondent- Advocate Uday Warunjikar, Advocate Sumit Kate

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Bombay High CourtJustice Sandeep V Marne

Sheetal Joon