Sangamner Nagar Parishad vs Tanaji Madhav Abhang
2013 Latest Caselaw 229 Bom

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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                               
                  WRIT PETITION NO.4797 OF 2013 




                                       
     Sangamner Nagar Parishad,
     Sangamner, Dist. Ahmednagar
     Through its Chief Officer.           ...PETITIONER 




                                      
            VERSUS             

     Tanaji Madhav Abhang,
     Age: 60 years, Occ: Nil,




                              
     R/o. Behind Runanuband Karyalaya,
     Nashik Pune Road, Sangamner,
                    
     Dist. Ahmednagar.                    ...RESPONDENT

                          ...
     Mr. Vinayak S. Bedre, Advocate for petitioner.
                   
     Mr. V.J. Dixit, Senior Counsel i/b Mr. K.N. 
     Shermale, Advocate for respondent sole.   
                          ...
      

         
                              CORAM: S.S. SHINDE, J.
   



                              DATE : 28TH NOVMBER,2013
                                       





     JUDGMENT :

. Rule. Rule made returnable forthwith.

With the consent of the parties, the petition is

taken up for final disposal.

2. Brief facts leading to file present writ

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petition, as disclosed in this petition, are as

under :

. The respondent herein, was working as

Head Clerk with the Municipal Council, Sangamner.

The respondent filed Complaint (ULP) No. 19 of

2006 before the Labour Court, Ahmednagar and

contended that, he is illegally dismissed from the

services on 04/04/2006 by the petitioner and

inquiry held against him is not legal, fair and

proper and order of dismissal is illegal.

3. The petitioner Municipal Council filed

written statement before the Labour Court stating

therein that, the respondent has committed serious

misconduct thereby indulging himself in 150

proposals of Gunthewari and fabricated signatures

of the Chief Officer on the said proposals and

also committed serious illegalities/

irregularities.

4. The Labour Court by the judgment and

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order dated 22/06/2012 dismissed the complaint.

Being aggrieved, the respondent herein, filed

Revision before the Industrial Court, Ahmednagar.

The Industrial Court partly allowed the revision

and modified the judgment and order passed by the

Labour Court. It is held that, the applicant is

entitled for the relief of continuity of service

till attaining the age of retirement i.e. till

01/06/2006 and retirement benefits as applicable

to other employees but shall not be entitled for

wages for the intervening period from the date of

dismissal till the date of attaining the age of

retirement by way of punishment.

5. Learned Counsel appearing for the

petitioner submits that, the Industrial Court

while modifying the order of the Labour Court has

not given any specific reasons and proceeded to

modify the order passed by the Labour Court. It is

submitted that, the Labour Court and also

Industrial Court have concurrently held that,

inquiry conducted by the Enquiry Officer is

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proper. It is further submitted that, the Labour

Court has recorded the findings that the

respondent has committed serious misconduct and

therefore, the action taken by the petitioner is

against the respondent is justified in law. It is

submitted that, while exercising revisional

jurisdiction, the Industrial Court cannot

re-appreciate the evidence since it has limited

jurisdiction under Section 44 of the Industrial

Disputes Act, 1947. It is submitted that, the

Industrial Court had no jurisdiction or power to

interfere with the punishment imposed upon the

respondent once the inquiry is found to be proper.

It is further submitted that, the Industrial Court

has passed impugned judgment and order contrary to

law laid down by the Supreme Court in the case of

Bharat Heavy Electricals Ltd. vs. M. Chandrasekhar

Reddy and others reported in (2005) 2 SCC 481 in

which the Supreme Court in the facts of that case

has taken a view that, interference with the award

of punishment in a domestic enquiry is

impermissible. Learned Counsel appearing for the

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petitioner also invited my attention to the

judgment of this Court in the case of Bhangar

Bros. and Co. Pvt. Ltd. Bombay vs. Engineering

Workers Union, Thane and another reported in

2009(123) FLR 1016 and submits that, once findings

are recorded that the charges are proved, the

Labour Court has no power to re-appreciate the

findings of the Enquiry Officer and reach to the

different conclusion. Therefore, relying upon the

grounds taken in the petition, annexures thereto

and reasons recorded by the Labour Court and the

Industrial Court, learned Counsel appearing for

the petitioner submits that, the writ petition

deserves to be allowed.

6. On the other hand, learned Senior Counsel

appearing for the respondent invited my attention

to the reasons recorded by the Industrial Court

and submits that, the Industrial Court has rightly

held that, the Labour Court has not recorded any

specific findings about misconduct committed by

the respondent. Learned Senior Counsel invited my

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attention to paragraph-31 from the judgment of the

Labour Court and submits that, the Labour Court

has recorded findings only in the said paragraph,

however, not specified specific misconduct of the

respondent. It is submitted that, the evidence of

the witnesses of the petitioner itself would make

it clear that, there was no cogent and convincing

evidence against the respondent and therefore, the

complaint filed by the respondent ought to have

been allowed by the Labour Court. It is submitted

that, no prejudice would be caused to the

petitioner by the impugned judgment and order of

the Industrial Court in as much as, the Industrial

Court has not awarded any back wages and only

ordered continuity in the service from the date of

dismissal till date of attaining age of

retirement. It is further submitted that,already

the respondent has attained the age of

superannuation and accordingly, he is retired from

the services of the petitioner. He further submits

that, in case this Court is inclined to interfere

with the impugned judgment and order of the

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Industrial Court, in that case without prejudice

to the rights and contentions of the respondent,

the matter may be remanded back to the Industrial

Court so as to decide the revision afresh.

7. I have given careful consideration to the

submissions of the Counsel appearing for the

petitioner and learned Senior Counsel appearing

for the respondent. I have carefully perused the

grounds taken in the petition, annexures thereto,

judgment and order passed by the Labour Court and

by the Industrial Court.

. Upon careful perusal of the findings

recorded by the Labour Court in paragraph-31, it

is abundantly clear that, the Labour Court did

record findings on the point that, the inquiry

conducted against the complainant was legal, fair

and proper and findings given by the Enquiry

Officer were not perverse. Therefore, the Labour

Court referring to the fact that, already said

Court has held that, inquiry conducted against the

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complainant was legal, fair and proper and

findings giving by the Enquiry Officer were not

perverse, observed that, it is not open for the

Labour Court to revert back and consider the

various contentions of the complainant in respect

of inquiry. The Labour Court further observed

that, the Labour Court has already given findings

regarding legality and correctness of the inquiry,

it is very clear that, charges proved against the

complainant are of serious nature and punishment

of dismissal from the service cannot be termed as

shockingly disproportionate. Therefore, the Labour

Court decline to interfere in the quantum of

punishment.

8. Upon perusal of the judgment of the

Industrial Court, it appears that in paragraph-11,

two points were framed for determination. Firstly,

Does the applicant prove that the judgment and

order passed by the Labour Court is perverse and

illegal. Said point is answered partly in the

affirmative. The Industrial Court in paragraph-16

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of the impugned judgment observed that, though the

inquiry conducted is held to be fair and proper

and findings are held to be not perverse, however,

proceed to observe that, the Labour Court has not

discussed about what is actual misconduct

committed by the complainant and further which

record is tampered by the complainant. The

Industrial Court proceeded further to hold that,

considering nature of misconduct committed by the

applicant and he is having attained age of

retirement long back and at present he being

suffering from paralysis, it would be appropriate

to grant him retirement benefits by depriving the

wages for the intervening period as and by way of

punishment, however, for the sake of retirement

benefit, the service rendered by the applicant

required to be considered as continuous.

. Upon careful perusal of the entire

judgment and order of the Industrial Court, the

Industrial Court has not observed that, which

findings of the Labour Court are perverse and why

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the Industrial Court felt that, nature of

misconduct committed by the applicant does not

deserve punishment of dismissal. There is no any

specific reference to any particular point and

further endeavour to find out how the findings

recorded by the Labour Court are perverse. Learned

Counsel for the petitioner is right in contending

that, having been accepted that, the inquiry

conducted by the Enquiry Officer is fair and

proper, there was no reason for the Industrial

Court to interfere in the judgment and order of

the Labour Court. This Court in Bhangar Bros. and

Co. Pvt. Ltd., Bombay (supra), held that, once the

Labour Court accepts the inquiry as fair and

proper and records satisfaction that, the charges

are proved then, Labour Court has no jurisdiction

to interfere in the punishment proposed by the

Enquiry Officer. The Supreme Court in the case of

Bharat Heavy Electricals Ltd., (supra), in the

facts of that case held that, without a finding

based on records, that fact of loss of confidence

of quantum of punishment is so harsh as to be

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vindictive or shockingly disproportionate,

interference with the award of punishment in a

domestic enquiry is impermissible.

9. In the present case as already observed,

the Labour Court and the Industrial Court have

recorded their satisfaction that, the inquiry

conducted was fair and proper. The Labour Court

while dismissing the complaint has considered

that, whether punishment is disproportionate or

not. The Industrial Court, without referring to

the particular misconduct or without entering into

the exercise of findings on misconduct recorded by

the Labour Court are perverse, proceeded to modify

the order of the Labour Court in revisional

jurisdiction. Therefore, in the light of

discussion herein above, the Industrial Court was

not justified in modifying the order passed by the

Labour Court in absence of specific reasons to do

so in its revisional jurisdiction. However, since

this Court deem it appropriate to remand the

matter back to the Industrial Court, this Court

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refrains itself to enter into greater length on

merits of the matter. Hence, the following

order:-

: O R D E R :

(A) The judgment and order dated 25/04/2013

passed by the Industrial Court, Ahmednagar in

Revision (ULP) No. 100 of 2012 is quashed and set

aside.

(B) Revision (ULP) No. 100 of 2012 is

restored to its original file. The Industrial

Court, Ahmednagar to hear the said revision afresh

in accordance with law and decide the same within

four months from today.

(C) Parties through Counsel agree to appear

before the Industrial Court, Ahmednagar on

16/12/2013.

     (D)       The   Industrial   Court   should   not   get 





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influenced by the observations made herein above

while deciding the Revision afresh on merits and

decide the same in accordance with law, after

affording proper opportunity of hearing to the

parties.

. Rule made absolute on above terms. Writ

Petition stands disposed of.

sd/-

[S.S. SHINDE, J.]

Tupe/28.11.13