M.S.E.B. Through Its Chief ... vs Narayan Wadguji Nagpure And Ors.
2004 Latest Caselaw 1250 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. By this petition, under Articles 226 and 227 of Constitution of India, the employer/M.S.E.B. is challenging the order dated 31-7-1991 passed by First Labour Court, Nagpur in Complaint (ULPN) No. 784/1989, granting relief of reinstatement with continuity and full back wages to respondent No. 1 employee and the subsequent order dated 10th July, 1992 passed by the Industrial Court, Nagpur in Revision, upholding that relief. The petition has been admitted for final bearing by this Court on 15-9-1992 and his reinstatement was not stayed. The stay granted is only to the payment of back wages, hence the respondent No. 1 is presently in employment. Advocate N.S. Bhoyar appearing for respondent No. 1 was not present yesterday and is not present today. Learned A.G.P. for respondent Nos. 2 and 3.

2. The facts in brief are : that the respondent No. 1 was engaged as causal labourer on nominal muster roll establishment from 1-6-1980 and he was asked to produce a document in support of his date of birth while screening him for regularisation. This screening was undertaken on 6-8-1982 and respondent No. 1 produced a School Leaving Certificate dated 15-10-1980 before that Committee. The petitioner /employer doubted genuineness of that document and, therefore, made an enquiry from the school authorities. On 28-1-1983, the school authorities replied to petitioner, stating that respondent No. 1 has not taken any education in their school and there is no record about his education with them. The petitioners, therefore, made further inquiries and on 11-9-1983 received a further letter therein mentioning that the school itself is established w.e.f. 21-8-1972. In view of this material, the petitioners issued a charge-sheet dated 21st November, 1983 to the respondent No. 1 and departmental enquiry was thereafter held against him for supplying false and forged document. A show cause notice was then served upon him and ultimately in view of the gravity of misconduct proved on 31-8-1989 he was dismissed from services of M.S.E.B. w.e.f. 1-9-1989 afternoon.

3. This dismissal was challenged by the respondent No. 1 by filing Complaint (ULPA) No. 784/1989 before the first Labour Court, Nagpur under the provisions of Section 28 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, M.R.T.U. and P.U.L.P. Act). In his complaint, he contended that he was in employment since 1-6-1979 and though he was asked to produce a document in respect of his date of birth, he could not produce any document. Thereafter he was given a charge-sheet and he gave a reply to it, stating that he did not submit any such certificate. An enquiry was conducted against him and he was dismissed from service on 31-8-1989. The respondent No. 1 contended in his complaint that charges levelled against him are false and the employer has indulged in unfair labour practice. The petitioner appeared and filed their written statement and disclosed the facts, as already discussed above.

4. The Labour Court thereafter framed a preliminary issue about validity and fairness of departmental enquiry and the respondent No. 1 filed a purshis before the Labour Court accepting that the departmental enquiry was fair and valid. The Labour Court thereafter proceeded to consider the matter on merits and in order to find out whether the findings reached by the Enquiry Officer are proper or not, it has applied its mind. After such application of mind it does find that there is nothing on record to show that respondent No. 1 at any time submitted the alleged false documents. It further found that there is no material on record to hold that the document is false document. It, therefore, held that the charges are not proved and, therefore, the findings reached by the Enquiry Officer are perverse. It, therefore, granted respondent No. 1 relief of reinstatement with full back wages from the date of dismissal, i.e. 1-9-1989.

5. The petitioners challenged this order of Labour Court by filing revision under Section 44 of M.R.T.U. & P.U.L.P. Act, vide Revision (ULPN) No. 237/ 1991 before the Industrial Court at Nagpur. The petitioners had also written to the Sarpanch of village Ambada, where the said school of respondent No. 1 is stated to be located in order to obtain certain clarification which became necessary in view of the findings recorded by the Labour Court. The Labour Court recorded a finding that certificate allegedly produced by respondent No. 1 before screening committee was of a private school while replies given to petitioners were by Government Primary School, and hence the replies, as given by Government Primary School, were totally irrelevant and could not be relied upon by the petitioners. The letter of petitioners to Sarpanch/ Administrator of Gram Panchayat, Ambada, has been replied to by that officer by mentioning that there is only one school, viz. Government Primary School and there is no other school at village Mainithana. Similarly, the petitioner also got another letter dated 24-9-1991 from Pradhan Pathak of Government. Primary School, Mainithana, in which he has clarified that there was no school at Mainithana prior to 1972 and the Government Primary School at Mainithana has been established in 1972. The petitioner filed an application before the Industrial Court for permission to file these documents. The said application and the revision has been considered together by the learned Member of the Industrial Court, while delivering the final order on 10th July, 1992. The learned Member of the Industrial Court has found that the documents sought to be produced before it, are not relevant in as much as the evidence on these lines was required to be led before the Enquiry Officer and has further held that application of mind by Labour Court is just and proper. It has therefore dismissed the revision. It is in this background that the petitioners have approached this Court in present writ petition.

6. Advocate Moharir for the petitioners has appointed out that the learned Labour Court has mechanically held that the findings recorded by Enquiry Officer are perverse. He states that in order to record such a finding it was obligatory for the Labour Court to first discuss the evidence which was available before the Enquiry Officer and then to consider the conclusions drawn by the Enquiry Officer in his report on the basis of that evidence. He contends that the learned Labour Court has not tried to co-relate any findings of Enquiry Officer with the evidence adduced before it. He contends that the Labour Court has acted as an independent authority and has applied its own mind and has invented a total new story which was never pleaded or raised by the respondent No. 1 before the Enquiry Officer. He contends that thus, the Labour Court has acted without jurisdiction in applying its own logic to the facts and circumstances of the case. He further states that the learned Member of the Industrial Court has also ignored this aspect of the matter. He contends that two vital documents were procured by the petitioners to show as to how application of mind by learned Labour Court is totally erroneous. He states that both these documents together clearly reveal that there was no other school at village Mainithana and, therefore, the reasoning given by Labour Court to ignore the replies received by the petitioners in reply to its queries before issuance of charge-sheet was clearly unsustainable and arbitrary. According to him, the learned Member of the Industrial Court ought to have permitted production of these two documents and further ought to have permitted the petitioners to examine necessary witnesses to prove these two documents.

7. As already stated above, the learned Counsel for the respondent No. 1 is not present.

8. Perusal of enquiry report submitted after departmental enquiry of respondent No. 1 reveals that the Enquiry Officer has extracted relevant answer in his enquiry report. It is noted in enquiry report that in reply to question No. 7, witness for petitioner Shri C.A. Pande, who worked as UDC in General Administration Department, has stated that Shri Narayan Nagpure gave certificate of primary school, Mainithana, in which it is shown that he has passed 4th Standard. The Enquiry Officer has further found that in reply to question No. 14 Shri Pande has stated that the duration of his education has been mentioned as from 1963 to 1967 in that certificate. The enquiry Officer has further recorded the reply to question No. 13 in his enquiry report and Enquiry Officer has found that in his letter Headmaster of Mainithana primary school has mentioned that the school has been open in 1972. The Enquiry Officer has also reproduced reply given by Shri Pande to question to No. 12 and has found that the respondent No. 1 has not taken education in Government Primary School, Mainithana and there was no student by that name in the school. The Enquiry Officer has thereafter stated that this witness was cross-examined and the respondent No. 1 could not bring about any material so as to discredit him. The Enquiry Officer has further found that respondent No. 1 did not adduce any evidence in defence. Thereafter the Enquiry Officer has concluded that respondent No. 1 produced the transfer certificate dated 15-10-1980 issued by Headmaster of Primary School, Mainithana in which it is mentioned that respondent No. 1 passed 4th examination from that school and he was admitted in that school between 1963 to 1967. He has further found that school was itself established in 1972 and as such it was not in existence between 1963 to 1967 when respondent No. 1 claims to have taken education in that school. He has thereafter found that no student by name Narayan Nagpure (present respondent No. 1) has taken education in that school. Thus, the Enquiry Officer concluded that respondent No. 1 has made a false statement by producing fake certificate at the time of his screening before screening committee on 6-8-1982. The perusal of order Labour Court reveals that these findings of Enquiry Officer or the questions and answers which are considered by the Enquiry Officer are nowhere considered by the Labour Court at all. The Labour Court has substituted its findings in place of Enquiry Officer and has drawn its own conclusions by ignoring the evidence given by Shri Pande. The Labour Court was considering whether the findings recorded by Enquiry Officer are perverse or not. For that purpose, it was necessary for Labour Court to take each finding recorded by Enquiry Officer and then to find out whether that findings is supported by some material on record. Perusal of the order of Labour Court reveals that the Labour Court has not tried to find out whether finding reached by the Enquiry Officer is supported by any reply given by Shri Pande or not. On the contrary, the Labour Court has given importance to the say of respondent No. 1 that he did not file any such certificate before the screening committee. It has accepted the fact that there was screening committee had by petitioners and about 107 employees were called before that committee. In spite of this the Labour Court has held that there is no proof before the Enquiry Officer that complainant was asked to somebody to file school Leaving Certificate and it has further held that there is no proof that complainant before it filed such certificate before the screening committee. It has further held that the question as to who else would have filed such certificate if it is not filed by the respondent No. 1 and answer to this is a matter of conjuncture. It has further held that anybody of 107 employees, who were to appear before the screening committee would have done so in order to cause some prejudice to the respondent No. 1. Thus, it is apparent that the learned Labour Court has invented its new theory in this respect. The Labour Court ought to have seen that there was no allegations that some officer of employee of petitioners was against the respondent No. 1 and he mala fidely introduced any such document. In the absence of any such allegation, the Labour Court ought to have seen that in normal course of events, like other employees, it was respondent No. 1 who appeared before the screening committee and produced said document, the Labour Court further should have seen that nobody else would be interested in producing such document on behalf of respondent No. 1. It is further to be noted that respondent No. 1 has not come up with specific case before the Labour Court that he had taken education in nay other school and he has not specified any other date as his date of birth. Thus, the respondent No. 1 has tried to remain silent and has tried to take advantage of the situation without producing any document to discharge the burden which was otherwise cast upon him. It is thus clear that the entire approach of the Labour Court in this respect is perverse.

9. After holding that respondent No. 1 did not produce the said school leaving certificate before the screening committee of petitioners, the Labour Court has in paragraph 10 proceeded further to examine whether there is any evidence on record to show that it is false certificate. However, the Labour Court held that certificate is not produced by respondent No. 1, it is apparent that it was not the certificate in relation to said respondent No. 1 and still the document, i.e. school leaving certificate bore the name of respondent No. 1 and mentions that he studied in the school from 6-7-1963 to 30th April, 1967. It is thus apparent that certificate was false. However, the Labour Court has held that there is no evidence to show that such certificate is false because, according to it, the certificate shows that it is issued by a private school, i.e. primary school at Mainithana, and all replies which are received by petitioners while making enquiry about that certificate are sent by Government Primary School, Mainithana. Thus, the Labour Court has held that replies sent to Government Primary School Mainithana are not in relation to the Primary School, Mainithana and has further held that there were two schools at Mainithana. It is to be noted that there was no such defence raised by the respondent No. 1 at any time before the Enquiry Officer.

10. Advocate Moharir for petitioners points out that the certificate which is produced by respondent No. 1 before the Enquiry Officer is dated 15-10-1980 and it is in relation to a school in Saunsar Tehsil in Chindwara District. He states that Saunsar was the part of Madhya Pradesh State after the State Reorganization in 1961 and official language there was Hindi. He, therefore, states that certificate ought to have been in hindi and in any case that certificate could not have been in Marathis. He further states that in view of the reason given by Labour Court about existence of two schools at village Mainithana, the petitioner has made further inquiries and had procured documents to show that there was only one school at village Mainithana and it was Government Primary School and further it was established in 1972. He, therefore, states that this document clearly shows that there was no such school at village Mainithana prior to 1972 and, therefore, respondent No. 1 could not have taken education at village Mainithana in any such school between 6th July, 1963 to 30th April, 1967. He, therefore, contends that the learned Member of the Industrial Court ought to have permitted him to produced this document on record and to examine witnesses to prove this document as they falsify the reasoning given by Labour Court to ignore the replies sent by Government Primary School, Mainithana to the queries and enquirers made by the petitioners. It is apparent that the learned Member of the Industrial Court ought to have considered this request favourably. However, the learned Member of the Industrial Court has also not perused the enquiry report or the defence of employee during enquiry and has upheld the order of Labour Court mechanically.

11. Thus, I find that the order passed by the Labour Court as also the order passed by the Industrial Court are unsustainable and both the courts below have refused to exercise jurisdiction available to them in accordance with law. The petitioners are permitted to file the documents, i.e. the letter dated 23-9-1991, written by its Chief Engineer to Sarpanch/Administrator/ Headmaster, Gram Panchayat Ambada in relation to Mainithana Primary School; the certificate dated 23-9-1991 issued by Administrator, Gram Panchayat, Ambada; and the letter dated 24-9-1991 issued by Pradhan Pathak of Government Primary School, Mainithana to its Chief Engineer, before the Labour Court. For that purpose, this matter is remanded back to the Labour Court and the Labour Court shall, after taking these documents on record, permit the parties to lead additional evidence, if they so wish to lead and thereafter shall decide the complaint expeditiously as early as possible and in any case within a period of six months from the date of receipt of this order by it.

12. The respondent No. 1 is presently in service and he shall be continued in service during pendency of the matter before the Labour Court. The appropriate decision in relation to his service shall be taken by the petitioners after the decision of the Labour Court and as per the decision of the Labour Court.

13. Thus the order dated 31st July, 1991 passed by the First Labour Court, Nagpur in Complaint (ULP) No. 784/1989; and the order dated 10th July, 1992 delivered by learned Member of the Industrial Court, Nagpur in Revision (ULPN) NO. 237/1991, are hereby quashed and set aside. The matter is remanded back to the Labour Court with the as above to enable the parties to lead additional evidence.

14. Rule made absolute in above terms. No order as to costs.