Saherabanu Abdul Salim vs Maharashtra State Road Transport ...
2005 Latest Caselaw 1082 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. Heard Shri Khan, learned Counsel for the petitioner and Shri Wankhede learned Counsel for the respondent.

2. By this writ petition filed under Articles 226 and 227 of Constitution of India, the ex-employee of respondent Maharashtra State Road Transport Corporation, challenge the concurrent orders dated 1-12-1992 delivered by the Industrial Court in Revision and dated 29-10-1990 delivered by the Labour Court, Nagpur, upholding the order of dismissal from service dated 20-3-1989. The said order has been passed after conducting Departmental Enquiry. It appears that during the pendency of this writ petition, the said employee has expired and on 30-9-1993, his widow has been brought on record.

3. On 13-8-1987, a charge-sheet was served upon the deceased employee that on 4-7-1987, he was working as Driver and brought bus coming from Kanhan to Sitaburdi near Salpekar Petrol Pump, Sitaburdi, Nagpur, at about 20.20 hours. One of the passengers in the bus enquired from the conductor whether bus would go up to Mor Bhavan stand and the conductor abused said passenger. The passenger, therefore, expressed that there was no reason to abuse and appropriate answer could be given. At that time, the deceased employee reached there and abused passenger and told him to get down. When he told driver not to abuse, the said driver i.e. deceased employee asked him to come in and thereafter closed the door of bus on conductor's side and severely beat the passenger. The passenger, therefore, got swelling on his face and there was bleeding from his lips. He also got injury on his right feet and his aspects were broken. The ex-employee Driver also threatened the passenger with killing under the bus. In view of these allegations, Items Nos. 10, 11, 26 and 29 of Discipline and Appeal Rules were invoked against the driver. Statement of conductor and driver were recorded on the spot and then a departmental enquiry was conducted. The Enquiry Officer recorded a finding that misconduct is proved and after issuing a show cause notice dated 30-1-1989, the driver was dismissed from service by order dated 20-3-1989 with effect from 30-3-1989. The said dismissal was challenged by the Driver by filing U.L.P. Complaint before the Labour Court vide complaint (U.L.P.A.) No. Ill of 1989 and same came to be dismissed on 29-10-1990. The Labour Court found departmental enquiry to be fair and valid and also found that there was no perversity in the findings recorded by the Enquiry Officer. The punishment was found to be just and proper. The deceased employee then challenged this judgment of Labour Court by filing Revision before the Industrial Court under Section 44 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as M.R.T.U. & P.U.L.P. Act), before the Industrial Court at Nagpur. Said Revision came to be registered as Revision (U.L.P.) No. 301 of 1990 and the Industrial Court dismissed it on 1-12-1992.

4. Shri Khan, learned Counsel while arguing for the petitioner has basically raised following points :

1. The findings of the Enquiry Officer are perverse inasmuch as there was no direct evidence connecting the petitioner employee with the alleged misconduct and the evidence of conductor which was in favour of the petitioner has not been considered by the Enquiry Officer.

2. The alleged passenger, who was beaten was not made available for cross-examination by the employer.

3. The past service record ought to have been considered while awarding the punishment as per requirements of Clause 6-B of Discipline and Appeal Rules. He contends that past service record was only looked into while proposing the punishment.

In support of these contentions he has stated that in the departmental enquiry the passenger Shri Vijay Singh Thakur who is allegedly beaten by the deceased driver was never produced and he was even not made available for cross-examination though the deceased driver made a demand in this respect. He states that in the bus at the time of alleged incident, there was only conductor and the deceased driver. The conductor was examined in departmental enquiry and the said conductor has deposed in favour of the deceased driver but that evidence of conductor is totally overlooked by the Enquiry Officer. He further states that to arrive at a finding that the passenger was beaten by the driver, the Enquiry Officer has relied upon the statements of Shri Dharmik and Sharma. He states that it is a story of employer that said passenger after alleged beating went to M.S.R.T.C. Bus Stand and demanded complaint book from Dharmik and recorded his complaint in that complaint book. He contends that this recording of complaint is witnessed by Shri Dharmik and Sharma. He contends that both these persons are, therefore, not witness to the actual incident of beating and their evidence about beating is therefore hearsay.

5. He also invites attention of this Court to the show cause notice dated 30-1-1989 to contend that the punishment of dismissal was proposed after considering the grievous-ness of the misconduct under investigation and past service record of driver, He contends that said past service record is not considered at the time of imposing the punishment of dismissal on 20-3-1989. He relies upon provisions of Clause 6-B of Discipline and Appeal Rules to contend that the said record assumes importance not when punishment is proposed but at the time when the punishment is awarded. He, therefore, contends that this is also non-application of mind which shows breach of principles of natural justice.

6. Shri Khan, learned Counsel for the petitioner has relied upon the judgment of this Court in the case of (Balwani v. S.D.O. Mehad) reported at , to contend that the employer cannot act upon any adverse material behind the back of an employee while awarding punishment. He contends that as past service record has been used by the employer behind his back, there is violation of principles of natural justice. For demonstrating that hearsay evidence cannot be looked into even in departmental enquiry and it cannot treated as substantive piece of evidence, he has relied upon the Division Bench judgment of this Court in the case of (C.M. Deshmukh v. Board of Trustees, Port of Bombay) reported at 1995 Lab.I.C. 1496, and the judgment of Allahabad High Court in the case of (R.C. Bansal v. Regional Manager, U.P. State Road Transport Corporation and Anr.) reported at 1995(III) L.I.J. (Supp..) 328. Shri Khan contends that as all these aspects are not considered either by the Labour Court or Industrial Court, said orders are not in accordance with law and are liable to be set aside.

7. As against this, Shri Wankhede, learned Counsel, who appears for the respondent-employee contends that though efforts were made to procure the presence of said passenger Shri Vijay Singh Thakur, as witness in the departmental enquiry, to offer him for cross-examination, the witness did not turn up and the respondent cannot control the conduct of witness. He contends that no prejudice is caused to the deceased driver on this count. He has further stated that at the relevant time, the passenger, the driver and the conductor were the only three persons in the bus and as Driver and conductor always work together, they cover each other and hence the conductor is bound to favour driver. He further states that in this case that is apparent from the spot statement of driver and conductor both. He therefore, contends that the Enquiry Officer has correctly not relied upon the evidence of conductor given in departmental enquiry. In relation to hearsay evidence. Shri Wankhede has contended that this is not the case of hearsay evidence and though Shri Dharmik and Sharma did not witness the beating of said passenger, they saw him injured and the passenger has lodged complaint in their presence. He contends that thus in this case there is other evidence available on record which shows that the passenger who was admittedly travelling in the bus of deceased driver and with whom the driver and conductor both admittedly had altercation, had such injuries. He contends that there is absolutely no reason and justification for stranger to come to the office of M.S.R.T.C. and to lodge a report against the driver only. He has relied upon the judgment of the Hon'ble Apex Court in the case of (State of Haryana v. Rattan Singh) reported at , in this respect. He further states that the argument about past service record as advanced is also misconceived. He contends that the past service record of the deceased employee has been looked into while awarding the punishment. He contends that even if the presumption in this respect is drawn against the present respondent and in favour of the deceased employee and it is assumed that, his past service record is clean, still the misconduct is of such a serious nature that punishment of dismissal is commensurate with it. He has also read out to Court what the father of the Nation Mahatma Gandhi said about the customer.

8. After hearing both the sides, I find that both the courts below have concurrently found that the findings recorded by the Enquiry Officer are not perverse. The learned Counsel for the petitioner has made an effort to demonstrate that the said concurrent findings reached by the Labour Court and Industrial Court are perverse. However, there is evidence available on record in the shape of testimony of Shri Dharmik and Sharma. The passenger Shri Vijay Singh Thakur was admittedly travelling in the bus and as is apparent from spot statement of the driver and conductor, there was some altercation between the Conductor and said passenger and the driver interfered thereafter. The abuses uttered allegedly by the said passenger are also reproduced in those spot statements. Thus, the fact that said passenger travelled in the bus has come on record. It is not the case that the deceased driver has any previous enmity with that passenger. The said passenger has thereafter gone to the office of the M.S.R.T.C. at Mor Bhavan which is nearby the spot where the bus had stopped and he had demanded complaint book and lodged a complaint against the deceased driver in it. This fact is also not in dispute. The Traffic Inspector, Shri Dharmik, and the other officer Shri Sharma, who have witnessed said passenger while he was recording his complaint, found that he was injured. They have also given the details of those injuries which are on record. There is no dispute about this also. The deceased driver could not bring on record anything before the Enquiry Officer that Shri Dharmik or Shri Sharma were deposing false. Here, it is also not on record that Shri Dharmik or Shri Sharma had any particular reason to depose against the driver. The entire incident needs to be viewed in this background. As it is already pointed out earlier, there is no third person, who has witnessed this incident. In such circumstances, when this evidence which cannot be said to be hearsay is looked into, the only missing factor is how the passenger got injured. It cannot be said that a person would injure himself and come to the office of the M.S.R.T.C. and report that he was beaten by the driver. The inference therefore naturally follows and findings reached by the Enquiry Officer in this respect cannot be held to be perverse.

9. The reliance upon the judgment of this Court reported at 1995 Lab.I.C. 1496, shows that there was no direct or other evidence of theft which has allegedly taken place and the quantity allegedly stolen was 367 cartons and those cartons were stolen by loading in to the trucks by 30-40 labourers. In this background, the Court has found that such an incident could not have gone unnoticed by residents of surrounding locality. Thus, in these circumstances, the Court held that hearsay evidence cannot be accepted. Here, as already described above, there is evidence of eye witnesses who have seen the passenger in injured condition and lodging complaint against the driver. This case, therefore, has no application.

10. The next ruling which is relied on is of Allahabad High Court (supra) and in it, it appears that the defence of employee right from the beginning was that four persons/ without ticket passengers who gave their statements to the Traffic Superintendent and on the basis of which the departmental enquiry was initiated by framing charges, gave those statements under coercion and not voluntarily. The Court has found that this defence was taken right from the beginning and as such to find out whether witness gave those statements voluntarily or under coercion, their examination was necessary. Thus, the view taken is in the facts and circumstances of that case. It also appears that the judgment of the Hon'ble Apex Court reported at (supra), has not been cited before the Allahabad High Court. In view of this, I find that the arguments advanced by Shri Khan, learned Counsel for the petitioner in this respect cannot be sustained and no interference is called for insofar as findings recorded either by the Enquiry Officer, Labour Court or Industrial Court in this respect are concerned.

11. Shri Khan, learned Counsel has further contended that adverse material in the shape of past service record could not have been used against the petitioner. His other argument is that past service record ought to have been looked into while awarding punishment and not while proposing punishment. It is to be noticed that the show cause notice has been issued on 30-1-1989 after receipt of report of Enquiry Officer and with that show cause notice, report of Enquiry Officer was also forwarded to the deceased driver. In the said show cause notice it is mentioned that as per enquiry report, all charges levelled against the deceased driver were proved and after considering the gravity of misconduct and old service record it was proposed to dismiss the driver from service. Thus, this is the stage from which the process of awarding punishment itself started and therefore, it cannot be said that the past service record was not looked into while awarding the punishment. The argument that past service record was looked into while proposing the punishment and not while awarding the punishment and reliance upon the judgment of the Division Bench of this Court reported at 2003(2) Bom.C.R. 375 : 2003(3) Mh.L.J. 165 in this respect is misconceived. A perusal of para 12 on which the reliance has been placed reveals that the Division Bench has said that principles of natural justice warrant that employer shall not use any material to the detriment of employee without giving its knowledge to the employee. However, in the facts of the present case, again this case will not be applicable because past services record has been expressly communicated in show cause notice and reply to said show cause notice was given by the deceased driver. A perusal of dismissal order dated 20-3-1989 shows that the driver in fact did reply to show cause notice and no grievance has been raised in it in this respect. In such circumstances, the arguments are misconceived and. are liable to be rejected.

12. Shri Khan, learned Counsel for the petitioner has argued that the Conductor has deposed in favour of the driver in the departmental enquiry and his evidence has not been looked into. It is to be noticed that the spot statement of conductor and driver has been recorded and in that spot statement, both of them have tried to implicate the passenger. The said spot statements reveal that both of them have tried to cover each other. It is a matter of record that driver and conductor work together. Both of them were in bus along with the passenger and the passenger according to them, got down from the bus in agitated mood and he closed the door of the bus with bang. The said passenger then emerged in M.S.R.T.C. office and lodged the report. In view of this material on record and in view of the facts, I find that there is nothing wrong on the part of Enquiry Officer, Labour Court or Industrial Court in not giving credence to the statement of conductor given in departmental enquiry. The findings in the departmental enquiry cannot be held to be vitiated on this count,

13. The last argument advanced by Shri Khan, learned Counsel is that the passenger Vijay Singh Thakur was not made available for cross-examination. It is to be noticed that the fact that the passenger had injuries when he lodged complaint against the driver is not in dispute. The fact that he lodged such complaint against the driver is also not in dispute and the fact that there was some altercation between driver and conductor on one side and passenger on other side, in the bus, is also not in dispute. The fact that respondent M.S.R.T.C. made efforts to procure the attendance of the passenger for cross-examination by the driver is also not in dispute. In such circumstances, merely-because such passenger did not appear for cross examination or for giving evidence before the Enquiry Officer, it will not make any difference insofar findings recorded by the Enquiry Officer are concerned.

14. As against this, Shri Wankhede, learned Counsel for the respondent has read out that it has been said by the father of the Nation that "Customer is King". There is absolutely no reason to presume that any passenger or any stranger would come to the office of M.S.R.T.C. after inflicting some injuries upon himself and lodge a report against a driver or conductor. The arguments of Advocate Khan are therefore, without any merit and petitioner had not suffered any prejudice on account of non-examination of said passenger.

15. Thus, I find that no case is made out for interference in writ jurisdiction in concurrent orders. Writ petition is, therefore, dismissed. There shall be no order as to costs.