Sunil Shamrao Thokal vs The Salvation Army
2013 Latest Caselaw 238 Bom

                                                                           WP/1652/2012
                                              1

                   IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                              BENCH AT AURANGABAD




                                                                              
                              WRIT PETITION NO.1652 OF 2012




                                                      
     Sunil Shamrao Thokal,
     Age 50 years, Occ. Labour,
     r/o Loyeed Colony,
     Near St. Monica D.Ed.College,




                                                     
     Opp. Zopadi Canteen,
     Ahmednagar.                                                        ..Petitioner

     VERSUS




                                         
     The Salvation Army
     Evangeline Booth Hospital,
                        
     Opp. GPO, Bhingar Road,
     Ahmednagar, through it's
     Administrator.                                                     ..Respondent
                       
                                        ...
               Shri Parag V. Barde, Advocate for the petitioners and
      S/Shri V.N.Upadhye and D.V.Chengede, Advocates for the respondents.
                                        ...
      


                                  CORAM : RAVINDRA V. GHUGE, J.

Dated : November 29, 2013

JUDGMENT:-

1. Heard learned Advocate for the respective parties.

2. Rule. By consent, Rule is made returnable forthwith and the

petition is taken up for final hearing.

3. The petitioner-employee was appointed as a Store Keeper with the

respondent-employer in 1989. On 19.12.1992, 12.5.1993 and 18.1.1994,

the respondent issued charge sheets-cum-show cause notices to the

petitioner, alleging negligence, improper maintenance and mis-

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appropriation against him. After conclusion of the domestic enquiry, he

was issued with a second show cause notice dated 13.3.1995. The

petitioner claims to have received the said notice on 25.3.1995. It is an

admitted position that the dismissal order was dated 31.3.1995.

4. The petitioner being aggrieved by the dismissal order, filed

Complaint (ULP) No.20 of 1995 before the Labour Court at Ahmednagar. It

was alleged that the respondent did not wait for seven days' period, while

dismissing the petitioner, which was provided to him to submit his reply to

the second show cause notice. So also the petitioner had made an

application dated 25.3.1995 for seeking an extension of time by fifteen

days to submit his reply. It is contended that the principles of natural

justice were not adhered to by the respondent while issuing the impugned

dismissal order. It is an admitted position that the findings of the Enquiry

Officer have not been challenged by the petitioner, meaning thereby that

the petitioner has not sought a declaration from the Labour Court that the

findings of the Enquiry Officer be held to be perverse and unsustainable.

There is no such pleading or prayer in his complaint. The Labour Court by

it's order dated 8.10.2001 set aside the enquiry for being vitiated.

5. Order of the Labour Court dated 8.10.2001, upholding the

preliminary objection of the petitioner that the enquiry is vitiated was

challenged in Revision (ULP) No.18 of 2002 by the respondent. The

Industrial Court, Ahmednagar dismissed the said Revision, as being not

maintainable, vide it's judgment and order dated 15.6.2004. The said

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order was not challenged by the respondent before this Court or any other

Court.

6. The parties proceeded with the matter before the Labour Court and

in view of the enquiry having been set aside by the Labour Court, the

respondent conducted a de novo enquiry. Evidence was led afresh and

finally, by it's judgment and order dated 20.8.2008, the Labour Court

partly allowed the complaint and directed reinstatement with continuity

and 50% backwages to the petitioner.

7. The petitioner preferred Revision(ULP) No.46 of 2008 for

challenging the said judgment in view of the denial of 50% backwages.

The respondent filed Revision (ULP) No.42 of 2008 for challenging the

Part-I order dated 8.10.2001 as well as the judgment dated 20.8.2008. It

is noted that Part I order dated 8.10.2001 was challenged in this Revision

Petitioner since by earlier order dated 15.6.2004, the Industrial Court had

held that the Revision (ULP) No.18 of 2002 filed by the respondent was

untenable holding that the Part I order can be challenged by the

respondent at the time of challenging the final judgment of the Labour

Court.

8. The Industrial Court considered both the above mentioned revision

petitions and came to a conclusion that the Part I order of the Labour

Court dated 8.10.2001 was unsustainable. The Industrial Court quashed

and set aside the Part I order dated 8.10.2001 and concluded that the

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enquiry conducted by the respondent was fair and proper and the

conclusion of the Labour Court holding the said enquiry as vitiated was a

perverse finding.

9. Since the Industrial Court set aside the Part I order, it concluded

that the verdict of the Labour Court based on the de novo enquiry also

needed to be set aside. Accordingly, Revision (ULP) No.42 of 2008 filed by

the respondent was allowed and the Revision (ULP) No.46 of 2008 filed by

the petitioner for seeking 100% backwages was dismissed. The Industrial

Court concluded that the effect of the de novo enquiry and the

conclusions of the Labour Court based thereon are rendered a nullity since

the enquiry conducted by the employer was held to be fair and proper.

The proceedings were remitted back to the Labour Court for consideration

of the remaining issues. It is this judgment dated 21.11.2011, delivered by

the Industrial Court that has been impugned in this petition by the

petitioner.

10. The petitioner before this Court while assailing the impugned

judgment has canvassed the following grounds:-

(a) The Industrial Court has seriously failed to appreciate the facts and evidence in it's proper perspective.

(b) The Industrial Court has failed to consider the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, Model Standing Orders and Indian Evidence Act.

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(c) The Industrial Court should not have restored the domestic enquiry conducted by the employer after the respondent had

conducted a de novo enquiry.

(d) Reasonable opportunity was not given to the petitioner to

answer the enquiry report and he was terminated within the prescribed period of seven days accorded to him by the second show cause notice, which was lost sight by the Industrial Court.

(e) The departmental enquiry originally conducted by the

respondent was vitiated and the findings were perverse.

(f) The Industrial Court has caused indulgence in it's revisional jurisdiction on technical footing.

(g) The impugned judgment of the Industrial Court has given a set back to the petitioner since he was terminated in 1995.

11. Before I advert to the impugned judgment, two aspects need to be

dealt with at the outset. The petitioner has raised a ground that the

findings of the Enquiry Officer are perverse. When confronted to point out

from the complaint, as to whether this challenge was posed before the

Labour Court, the petitioner's Advocate went through the entire complaint

filed before the Labour Court and conceded that there was no such

pleading and as such there was no question of giving any finding that the

enquiry report was perverse.

12. The other issue is that the petitioner has boldly canvassed before

the Labour Court, Industrial Court and even before this Court that the

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second show cause notice dated 13.3.1995 was served upon the petitioner

on 25.3.1995 and therefore, the impugned dismissal of the petitioner

dated 31.3.1995 is within the period of seven days granted by the

respondent to him to submit a reply. The wordings used in the second

show cause notice are, "if you wish to submit your remarks on these

reports, you can send the same to the management within seven days

from the receipt of this letter."

13.

The respondent, in the presence of the petitioner, has shown to the

Court a copy of the acknowledgment receipt received by the respondent

management and stated that it was placed before the Labour Court. This

acknowledgment receipt was attached to the RPAD envelope posted to the

petitioner containing the second show cause notice. The signature on the

acknowledgment receipt is that of the petitioner and he himself has put

the date below his signature as 18.3.1995. The said document was taken

on record in the proceeding before this Court and marked Exhibit "X" for

identification.

14. The respondent has also pointed out from the cross-examination of

the petitioner, in paragraph No.6, which contains the statement of the

petitioner as, "Now I am shown postal acknowledgment. It bears my

signature. The date below my signature is 18.3.1995 and was correctly

mentioned."

15. In this view of the matter, the conclusion of the Labour Court, in

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it's order dated 18.10.2001, that the petitioner was not accorded seven

days' time to submit his reply since he had received the report and second

show cause notice on 25.3.1995, is wholly erroneous. The Labour Court

could not have drawn this conclusion when evidence in the form of the

acknowledgment receipt as well as an un-equivocal admission given by the

petitioner in paragraph No.6 of the cross-examination was on record.

16. The petitioner contends that the documents were not supplied to

him in the enquiry and he was not given the opportunity to cross-examine

the witnesses of the management. Based on such contentions as well, the

Part I order dated 8.10.2001 was delivered by the Labour Court.

17. It is seen from the cross-examination of the petitioner, at

paragraph Nos.5 and 6, recorded on 3.1.1997, that he admits that Shri

Ravindra Deshpande was his defence representative. The petitioner was

permitted to cross- examine the witnesses examined on behalf of the

management. He had not given any application in writing to the Enquiry

Officer that documents may be given to him for the purpose of inspection.

18. The petitioner has also contended that because a de novo enquiry

was conducted by the respondent in the Labour Court, the Industrial Court

should not have upheld the fairness of the enquiry conducted by the

respondent. In my view such submissions are unacceptable. Earlier, the

Industrial Court had rejected the Revision Petition of the petitioner

holding that the conclusions of the Labour Court in setting aside the

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domestic enquiry can be challenged by the respondent along with the final

judgment of the Labour Court. In that situation, the respondent

conducted a de novo enquiry. Now, the respondent cannot be precluded

for raising the said challenge. So also, it would not preclude the Industrial

Court from deciding this issue. By now it has become a settled position of

law that a right to conduct a de novo enquiry has to be reserved in the

written statement. So also, conducting a de novo enquiry does not

preclude an employer from challenging the Part I order along with the

final judgment of the Labour Court. This right of an employer cannot be

taken away.

19. In this view of the matter, the Industrial Court, after analysing the

record and proceedings of the Complaint (ULP) No.20 of 1995 has arrived

at a proper and sustainable conclusion that the enquiry conducted by the

employer was fair and proper and the Part I order of the Labour Court

dated 8.10.2001 deserves to be set aside.

20. Shri Barde, learned Advocate for the petitioner has raised one more

issue, that the petitioner has submitted an application dated 25.3.1995 to

the respondent seeking an extension of fifteen days time for submitting

his reply to the enquiry report. This issue can be scrutinised taking into

account the conduct of the petitioner. He had received the show cause

notice on 18.3.1995, with seven days period to reply. He has approached

the respondent for extension of time on the last date i.e. 25.3.1995 when

the period to submit his reply had expired. As such he had cornered the

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respondent by making such an application on the last date of the period

given to him. He could have done this even earlier, had he genuine

reasons to seek an extension. The explanation is that the enquiry reports

were required to be studied. The contention, therefore, is that the

employer, by not giving him the extension, has committed an unfair labour

practice and the enquiry is therefore, vitiated. Yet, even thereafter, the

employer waited for about six days and then issued the impugned order

dated 31.3.1995. The contention is that the conduct of the respondent in

not granting extension or in not replying to the representation of the

petitioner is fatal to the impugned dismissal order.

21. All these issues have to be looked into on the touchstone of

prejudice. The petitioner had been given seven days' time and thereafter,

by default he got six days more. No explanation is forthcoming, as to

why the petitioner could not submit his reply within the said period of

thirteen days. After submitting his representation for extension, he could

have submitted his reply as expeditiously as possible. It appears that the

petitioner laid back and waited for the order of the respondent granting

extension to be served upon him. This conduct of the petitioner dis-

entitles him to any relief.

22. In the light of the aspects considered above and upon going through

the reasons adduced by the Industrial Court in support of it's conclusions in

the impugned judgment dated 21.11.2011, the petitioner has failed in

pointing out any illegality or perversity. I, therefore, have no hesitation

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in concluding that the Writ Petition is devoid of any merits and deserves

to be dismissed.

23. In the result, the Writ Petition is dismissed. Rule stands discharged.

No order as to costs.

(RAVINDRA V. GHUGE, J.)

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