Divisional Controller M S R T C ... vs Rafikkhan Mustafakhan
2016 Latest Caselaw 1696 Bom

                                              1




                                                                                  
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                          BENCH AT AURANGABAD




                                                          
                             WRIT PETITION NO.1805 OF 2007

    Divisional Controller,
    MSRTC, Jalgaon Division,




                                                         
    Through Divisional Controller,
    Jalgaon                                                           PETITIONER
    VERSUS 




                                             
    Rafikkhan Mustafakhan,
    Age-Major, Occu-Nil,
    R/i Mullawada, Bada Ghar,  
    Erandol, Tal.Erandol,                                             RESPONDENT

Dist.Jalgaon

Mr.M.K.Goyanka, Advocate for the petitioner. Mr.S.R.Patil, Advocate for the respondent.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 21/04/2016

ORAL JUDGMENT :

1. This petition has been admitted on 19/06/2007 and the

hearing was expedited.

2. I have heard the learned Advocates for the petitioner/

Corporation and the respondent/employee.

3. The respondent joined as a Driver in 1980. He was granted

leave on medical grounds for 2 years since he underwent a brain

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surgery on 03/11/1997. He reported for duties on 21/06/2000 and

was imparted training for 5 days till 26/06/2000.

4. The respondent remained absent from 28/06/2000 till

10/12/2000. He was issued with a charge sheet and which was

followed by a departmental enquiry. The charge of absenteeism for 5

months and 12 days was held to be proved and he was finally

terminated by way of punishment on 26/02/2001.

5. The departmental first appeal preferred by the respondent was

rejected on 27/08/2001. Similarly his second appeal was also

rejected.

6. The respondent filed Complaint (ULP) No.60/2003 before the

Labour Court for challenging his termination. Delay was condoned.

By judgment and order dated 21/03/2005, the complaint was

dismissed.

7. The respondent preferred Revision (ULP) No.9/2005 before the

Industrial Court. By impugned judgment dated 21/09/2006, the

Revision Petition was allowed as the Industrial Court concluded that

the charge of continuous absence was not proved and hence there

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could not be an order of termination when the charges are not

proved.

8. The learned Advocate for the Corporation submits that the

respondent did not challenge the fairness of the enquiry and did not

challenge the findings of the Enquiry Officer before the Labour Court.

On the issue of proportionality, the Labour Court concluded that the

punishment awarded to the respondent needs no interference. He,

therefore, submits that in this backdrop, the Industrial Court could

not have concluded that the absenteeism is not proved by the

Corporation.

9. It is further stated that the respondent attained the age of

superannuation on 30/06/2006. However, he was paid his provident

fund accumulations for an amount of Rs.1,67,915/- on 15/02/2001

and was paid his gratuity for an amount of Rs.51,129/- on

28/11/2001.

10. Mr.Patil, learned Advocate for the respondent/employee has

strenuously supported the impugned judgment. He, however,

submits that the respondent did not challenge the enquiry or the

findings of the Enquiry Officer before the Labour Court.

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11. He further submits that several applications supported with

medical certificates were placed before the Enquiry Officer. This

aspect was considered by the Industrial Court and it rightly came to

a conclusion that the charge of absenteeism was not proved against

the respondent. So also, the absence of 5 months and 12 days cannot

be said to be a serious misconduct. He, therefore, submits that this

Court may not interfere with the impugned judgment in its

supervisory and writ jurisdiction.

12. I have considered the submissions of the learned Advocates.

13. In the light of the judgment of the Hon'ble Apex Court (4 judges

bench) in the matter of Workmen of Motipur Sugar Factory Private

Ltd.,Vs. The Motipur Sugar Factory Private Limited, AIR 1965 SC 1803 , it is

settled that where the order of dismissal by way of punishment is

based on a departmental / domestic enquiry conducted by the

employer and if the fairness of the enquiry and the findings of the

Enquiry Officer are challenged, the Labour Court or Tribunal is

required to frame two issues with regard to whether the employee

proves that the enquiry is vitiated on account of non-observance of

the principles of natural justice and whether he proves that the

findings of the Enquiry Officer are perverse.

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14. In the instant case, I find from the pleadings of the respondent

in his complaint that he has come before the Labour Court with a

categoric stand that the petitioner has not conducted any

departmental enquiry, no opportunity of hearing was given and he

has been suddenly terminated without compliance of Section 25-F

and 25(G) of the I.D.Act. It is quite unusual that the

respondent/employee, despite having suffered a departmental

enquiry, has claimed that there was no enquiry conducted at all.

Naturally, the Labour Court did not frame an issue with regard to the

fairness of the enquiry and the findings of the Enquiry Officer.

15. The Industrial Court, while dealing with the revision petition

filed by the respondent concluded that the charge of unauthorized

absenteeism cannot be said to be proved against the respondent. He

has not deliberately remained absent and was compelled by the

circumstances.

16. I find the view taken by the Industrial Court to be

unsustainable since a domestic enquiry was conducted, charges were

proved and the issue of the fairness of the enquiry and the findings

of the Enquiry Officer were not raised before the Labour Court which

legally would not permit the Industrial Court to go into on account of

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lack of pleadings.

17. Moreover, even if it is assumed that the revisional jurisdiction

of the Industrial Court u/s 44 of the MRTU and PULP Act, 1971,

which is otherwise limited and narrow, is expanded to go into the

fairness of the enquiry, the moment the Industrial Court realises that

the findings are perverse or the enquiry is vitiated, it would be

obliged to remand the matter back to the Labour Court for framing of

the first two issues and for a proper trial in the light of the ratio laid

down in the case of Workmen of Motipur Sugar Factory (supra) and

which has been considered by this Court in the matter of

Maharashtra State Co-operative Cotton Growers Marketing Federation

Ltd., and another Vs. Vasant Ambadas Deshpande, 2014(3) Mh.L.J.

339 = 2014(1) CLR 878

18. Without following the law, as is laid down, the Industrial Court

could not have set aside the judgment of the Labour Court. The

impugned judgment is, therefore, perverse and erroneous.

19. Notwithstanding the above, the subsequent events cannot be

ignored, in as much as the absence of the respondent for 5 months

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and 12 days cannot be termed to be a minor misconduct. The

respondent has been continuously absent for 162 days,

unauthorizedly. On the ground of proportionality, the order of

termination cannot be faulted as it does not amount to awarding a

shockingly disproportionate punishment.

20. The petitioner has paid the Provident Fund accumulations,

gratuity and and has made retiral benefits available to the

respondent, who has superannuated on 30/06/2006. It is, in this

backdrop, that I do not find any reason to remit this matter to the

Industrial Court after 10 years of retirement of the respondent.

21. As such, on account of there being no challenge to the enquiry

and the findings of the Enquiry Officer and since I find that the

punishment awarded to the respondent is not shockingly

disproportionate, the impugned judgment of the Industrial Court

dated 21/09/2006 is quashed and set aside. Revision (ULP)

No.9/2005 stands dismissed.

22. However, considering the passage of time and the subsequent

events, the petitioner shall not cause any recovery of the retiral

benefits paid to the respondent, as noted above.

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23. Writ petition is, therefore, allowed and Rule is made absolute in

the above terms.

( RAVINDRA V. GHUGE, J.)

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