Bombay High Court

The Managing Director,Parner ... vs Popat Mahipati Borkar on 5 December, 2015

Bench: R.V. Ghuge

                                                      *1*                         902.wp.2007.95


kps
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                    
                           BENCH AT AURANGABAD

                                   WRIT PETITION NO. 2007 OF 1995




                                                            
      The Managing Director,
      Parner Taluka Sahakari Sakhar
      Karkhana Limited,




                                                           
      Devi Bhoire, Tal.Parner,
      District Ahmednagar.
                                                        ...PETITIONER
                -VERSUS-




                                                 
      Popat Mahipati Borkar,           
      Age : 48 years, Occ : Nil,
      R/o Wadzire, Tal.Parner,
      District Ahmednagar.
                                      
                                                        ...RESPONDENT

                                            ...
      Shri   R.N.Dhorde,   Senior   Advocate   along   with   Shri   Mobin   H.   Shaikh, 
      Advocate for Petitioner.
         
      



      Shri   P.V.Barde   holding   for   Shri   T.K.Prabhakaran,   Advocate   for   the 
      Respondent. 
                                               ...





                                             CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 05th December, 2015

Oral Judgment:

1 This petition was admitted by this Court on 19.07.1995 and

Rule on interim relief was issued. By order dated 20.12.2004, this Court

refused interim relief to the Petitioner.

                                                        *2*                           902.wp.2007.95


    2              The Petitioner has challenged the judgment and order dated

28.02.1995 by which the Industrial Court, Ahmednagar has allowed

Revision (ULP) No.75/1992 preferred by the Respondent/ Employee.

3 The contentions of Shri R.N.Dhorde, learned Senior Advocate

appearing for the Petitioner/ Employer, can be summarized, in brief, as

follows:-

(a) The Respondent/ Employee was appointed as a Supervisor in

the Petitioner Sugar Factory in 1986.

(b) On 27.01.1987 he applied for appointment as an Assistant

Security Officer since the said post was vacant.

(c) One Mr.S.B.Supekar was appointed as an Assistant Security

Officer.

(d) The Respondent was aggrieved by the said appointment and

therefore, he confronted the Managing Director of the

Petitioner Sugar Factory and abused him in foul and filthy

language.

(e) The Respondent was suspended by the order dated

31.01.1987 w.e.f. 01.02.1987.

(f) Specific charges were levelled upon him and after conducting

the domestic enquiry, he was dismissed from service by way

of punishment by the order dated 03.08.1987, but made

*3* 902.wp.2007.95

effective from 31.01.1987.

(g) The Respondent filed Complaint (ULP) No.53/1987 before

the Labour Court for challenging his dismissal.

(h) Though the prayers indicate that the Respondent sought

quashing and setting aside of the order of the dismissal, it was

not specifically pleaded that the dismissal order be set aside

on the ground that it was made effective with retrospective

effect.

(i) The Labour Court framed an issue on 30.12.1988 with regard

to the legality and validity of the domestic enquiry held

against the Respondent.

(j) The order of the Labour Court dated 23.11.1990, which was

pronounced in open court, indicates that both the sides gave

up their respective contentions about the enquiry and jointly

submitted that they have no objection if the enquiry is set

aside and the parties are permitted to lead fresh evidence.

(k) By the judgment and order dated 15.10.1992, the Labour

Court dismissed the complaint.

(l) The Respondent preferred Revision (ULP) No.75/1992

challenging the judgment of the Labour Court.

(m) By the impugned judgment dated 28.02.1995, the revision

was allowed and the judgment and order of the Labour Court

*4* 902.wp.2007.95

was set aside, thereby granting the relief of reinstatement

with continuity of service and 50% back-wages to the

Respondent.

(n) The Industrial Court has relied upon the Medical Certificate

produced by the Respondent which was exhibited before the

Labour Court indicating that he was admitted for medical

treatment on 30.01.1987 and 31.01.1987.

(o) The Industrial Court erroneously relied upon the said

certificate merely because it was exhibited.

(p) A document being exhibited does not mean that the contents

of the same have been proved in the light of the ratio laid

down by the Apex Court in the case of Sait Tarajee Khimchand

and others vs. Yelamarti Satyam and others, AIR 1971 SC

1865.

(q) The Industrial Court has committed another error of

concluding that the order of dismissal dated 03.08.1987 has

made the dismissal effective from 31.01.1987, which was not

canvassed by the Respondent.

(r) A prayer not specifically made, cannot be granted as has been

done by the Industrial Court which is in opposition to the

ratio laid down by the Apex Court in the case of Press Council

*5* 902.wp.2007.95

of India vs. Union of India, 2012 (12) SCC 329.

(s) In the event this Court is not inclined to allow this petition,

liberty is being sought to pass a fresh order of punishment.

4 Shri Barde, learned Advocate for the Respondent/ Employee,

submits as under:-

(a) The order of dismissal dated 03.08.1987 was issued pursuant

to the completion of the domestic enquiry.

(b) This order of dismissal should not have been made effective

from the date which is prior to the commencement of the

domestic enquiry.

(c) By the part-1 order dated 23.11.1990, the Labour Court

considered the consent given by the parties and set aside the

domestic enquiry while answering the issue as regards the

fairness of the enquiry.

(d) Both the parties had led fresh evidence before the Labour

Court.

(e) The alleged victim i.e. Managing Director of the Petitioner

Sugar Factory, who claimed that the Respondent has abused

him in foul and filthy language, did not step into the witness

box and did not support the charges levelled upon the

Respondent.

                                                   *6*                           902.wp.2007.95


    (f)        The   Respondent   was   admitted   for   medical   assistance   on

30.01.1987 and 31.01.1987 which was evident from the

Medical Certificate exhibited before the Labour. This clearly

indicates that the Respondent was admitted for medical

assistance and therefore, he was not present in the factory

premises either on 30.01.1987 or 31.01.1987.

(g) The Industrial Court is required to trace out the perversity in

the findings of the Labour Court under it's revisional

jurisdiction under Section 44 of the MRTU & PULP Act, 1971.

(h) The Industrial Court under it's revisional jurisdiction has

considered specific submissions of the Respondent that the

order of dismissal is issued with retrospective effect.

(i) The judgment of the Division Bench of this Court in the case

of Assaram Raibhah Dhage vs. Executive Engineer, Sub

Divisional, Mula, 1988 (4) Bom. C.R. 158 : 1987 (2) CLR

231, lays down the ratio that the termination with

retrospective effect is not permissible.

(j) The Respondent had placed reliance upon the judgment of

this Court in the case of Assaram Dhage (supra), which

clearly indicates that a specific issue of termination with

retrospective effect was raised by the Respondent.

    (k)        The Respondent is about 68 years old today and therefore, 





                                                        *7*                           902.wp.2007.95

liberty sought by the Petitioner to pass a fresh order of

punishment, cannot be entertained as the Respondent has

attained the age of superannuation more than 08 years ago.

5 Shri Dhorde has placed on record the compilation of

documents, namely, the letter dated 19.02.2005 issued to the Petitioner

Sugar Factory by RPAD, copy of the RPAD receipt dated 21.02.2005, copy

of the envelope which contains the postal remark that the Petitioner has

locked it's sugar factory and nobody is available to accept the

communication. The said compilation (five pages) is taken on record and

collectively marked as Exhibit X for identification.

6 Shri Dhorde further submits that despite the above, he is

performing his duty of conducting this matter on it's merits.

7 Shri Barde submits that the Petitioner Sugar Factory has not

been closed down and is presently in operation. Recently, few petitions

have been filed by the same Petitioner Sugar Factory.

8 I have considered the submissions of the learned Advocates as

have been recorded herein above and have gone through the record and

proceedings available, with their assistance.

                                                         *8*                           902.wp.2007.95




                                                                                        
    9               The issue as regards whether, the enquiry was conducted in a

fair and proper manner and whether, the said enquiry could be said to

have been vitiated, has been dealt with by the Labour Court. On

30.12.1988 the following issue was cast by the Labour Court:-

"1. Does the Complainant prove that the enquiry held against him is illegal, improper and against the principles of natural justice?"

The part-1 order of the Labour Court dated 23.11.1990

placed on record indicates that the learned Advocates for the respective

sides consented for setting aside the enquiry. The Respondent had no

objection to the setting aside of the enquiry and further he gave his

consent for permitting the Petitioner to lead fresh evidence before the

Labour Court. As such, the enquiry was set aside and the parties have led

fresh evidence before the Labour Court.

11 The Industrial Court in it's revisional jurisdiction under

Section 44 of the MRTU & PULP Act, 1971 is required to consider whether,

the impugned judgment of the Labour Court can be termed to be perverse

or erroneous. It is not in dispute that the medical certificate issued by the

doctor indicating that the Respondent was admitted in a hospital on

30.01.1987 and 31.01.1987 was exhibited. It merely suggests that the

*9* 902.wp.2007.95

Respondent was admitted in a hospital on the said two dates.

12 It is, however, noteworthy that the Petitioner did not

contradict the contents of the said medical certificate, inasmuch as it is not

the case of the Petitioner that the said medical certificate is false or bogus.

It is in this backdrop that the Industrial Court has merely read the medical

certificate and has concluded that the Respondent cannot be at two

different places at the same time. If he was admitted in a dispensary/

hospital for two days, he could not have been at the premises of the

Petitioner Sugar Factory on the said two dates.

13 There is no dispute that the Respondent is charged of having

abused the Managing Director of the Petitioner on 31.01.1987. In this

backdrop, the Industrial Court concluded that the Labour Court has lost

sight of the fact that the Respondent/ Employee was not available on the

premises of the Petitioner Sugar Factory.

14 Since the enquiry was set aside by consent and the parties

agreed for a final adjudication, the Industrial Court while dealing with the

judgment of the Labour Court was competent to consider the evidence

recorded before the Labour Court. In this backdrop, the Industrial Court

concluded that the purported victim of the charge i.e. Managing Director,

*10* 902.wp.2007.95

who claimed that the Respondent abused him, did not step into the

witness box and did not support the charges levelled upon the

Respondent. It is not the case of the Petitioner that the victim was not

available or was not in a condition to depose before the Labour Court. The

Industrial Court, therefore, concluded that the victim himself has not led

any evidence against the Respondent nor proved the charge that the

Respondent abused him.

The Petitioner has raised a serious grievance of there being no

specific prayer that the order of dismissal be set aside on the ground that

it is issued with retrospective effect. It cannot be ignored that the

dismissal of the Respondent was on account of proved misconduct. It is

trite law that when the charges are levelled upon the Employee, the same

have to be proved by following the due procedure of law which is by

conducting a domestic enquiry. The order of dismissal is based on the

conclusion of the Enquiry Officer.

16 It is only after the Enquiry Officer concludes that the charges

are proved against the Employee, that the Employer derives a legitimate

right to pass an order of punishment and the quantum of punishment is

left to the discretion/ assessment of the Employer, in the light of the 42 nd

amendment to the Constitution as has been held by the Apex Court in the

*11* 902.wp.2007.95

case of Managing Director, ECIL vs. B.Karunakar, 1993 (4) SCC 727.

17 In the above backdrop, it is beyond comprehension as to how

could an order of dismissal, which is pursuant to the proving of charges,

be given retrospective effect. The impugned judgment of the Industrial

Court indicates that the Respondent had specifically argued this issue in

revision and has also relied upon the Division Bench judgment of this

Court which clearly covers the issue of termination with retrospective

effect in the case of Assaram Dhage (supra).

18 In Assaram Dhage case (supra), the Division Bench of this

Court has observed as under:-

"(1) The services of an employee, be he permanent or temporary, cannot be terminated with retrospective

effect. Such is the ratio of this judgment. (2) On June 7, 1980 the petitioner, a project displaced person, was appointed as a Mustering Assistant in the Work Charge Establishment at a monthly salary of Rs.200/-. Thereafter he worked continuously without

break in service till March, 1986, when by a letter of termination dated March 11, 1986 his services were retrospectively terminated with effect from March 1, 1986. Hence this writ petition.

(3) The petitioner's learned counsel Miss Purohit is perfectly justified in making a grievance that it is unthinkable that an employee's services can be terminated with retrospective effect, as done in the present case. We join learned Counsel in her

*12* 902.wp.2007.95

astonishment. For that matter, one of the conditions in the letter of appointment is that if the petitioner

desired to resign he was liable to pay one months salary or give one months notice. It is therefore, ironical that on the other hand, the petitioner's

services were terminated with retrospective effect. (4) However, the respondents' learned Counsel Mr.Bhatkar ventures that the date of termination, namely March 1, 1986 in the letter of termination

must be typographical error. This is an ipse dixit, it is purely conjecture and speculative reasoning. Significantly enough, in the affidavit in reply, no such case of a typographical error is even faintly suggested.

For that matter, despite the fact that in the petition it has been categorically stated in no uncertain terms

that by this letter of termination, the petitioner's services were terminated with retrospective effect from March 1, 1986 not even the whisper of a denial is to

be found in the affidavit in reply. Thus, the myth of a typographical error stated across the Bar can safely be ruled out.

(5) Mr.Bhatkar now takes refuge that the petitioner's

appointment was merely temporary. However, he is unable to say under what provisions of law the

petitioner's employment, even if temporary, could be terminated with retrospective effect. (6) In the result, the termination order dated March 11, 1986 is set aside. The petitioner shall be paid his

salary as if he had continued to be in employment. The Rule is made absolute accordingly with costs."

19 In such circumstances, I am unable to accept the submissions

of the Petitioner. In addition to this, though the Respondent may not have

specifically averred in his complaint that the order of dismissal has been

given retrospective effect, he had prayed in his complaint that the

dismissal order be quashed and set aside for being illegal. The fact that

*13* 902.wp.2007.95

the dismissal order is issued with retrospective effect, is proved and there

is no dispute about it. The law, therefore, was to be made applicable while

considering the validity of such dismissal which is with retrospective

effect. I, therefore, find that reliance placed upon the judgments as cited

by the Petitioner, would be of no assistance to the Petitioner.

20 In the light of the above, I do not find that the impugned

judgment of the Industrial Court could be termed as being perverse or

erroneous.

21 The Petitioner has prayed for liberty to pass a fresh order of

punishment.

22 Needless to state, such order needs to be passed prospectively

and no retrospective effect can be given to the order of termination. The

Respondent is said to be 68 years old as on date. Granting liberty to the

Petitioner to issue a fresh order of dismissal, would mean that the

Respondent is being dismissed after about 08 years of attaining the age of

superannuation. I, therefore, find it to be a futile exercise to permit the

Petitioner to issue a fresh order of punishment.



    23              Shri Dhorde has criticized the grant of 50% back-wages to the 





                                                          *14*                          902.wp.2007.95

Respondent. I am of the view that once the action of dismissal of the

Employer is held to be bad in law and in the absence of any evidence to

indicate that the Employee was gainfully employed, the issue of back-

wages gains importance.

24 The Apex Court in a recent judgment delivered in the case of

Nicholas Piramal India Limited v/s Hari Singh, 2015 (2) CLR 468, has

concluded that the grant of relief of 50% back-wages to the Employee

could be substantial justice. Having regard to the fact that the Employee is

rendered unemployed and in order to soften his hardships and rigours of

litigation, 50% back-wages would be a fair relief.

25 On this premise, I do not find any reason to interfere with the

order of the Industrial Court which grants 50% back-wages to the