Bombay High Court
Yesumithra Sabanna vs Chief Manager Nitin Arun ... on 22 April, 2016
Bench: S.C. Gupte
sg wp638-16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.638 OF 2016
Yesumithra Sabanna ...Petitioner
vs
Chief Manager,
Nitin Arun Nivsarkar,
Central Railways Employees
Co-Operative Credit Society Ltd. ...Respondent
WITH
WRIT PETITION NO.460 OF 2016
The Central Railways Employees Co-operative
Credit Society Ltd. ...Petitioner
vs
1. Yesumithra Sabanna &
2. The Ld. Member,
Industrial Court, Mumbai ...Respondents
.....
Yesumithra Sabanna, Petitioner in person in Writ Petition No.638 of
2016 and Respondent in person in Writ Petition No.460 of 2016.
Mr. Kiran S. Bapat, a/w. Jayesh Desai, i/b. Desai and Desai Associates,
for the Respondent in Writ Petition No.638 of 2016 and for the
Petitioner in Writ Petition No.460 of 2016.
......
CORAM : S.C. GUPTE, J.
DATED: APRIL 22, 2016
P.C. :
. Writ Petition No.460 of 2016 is filed by Central Railway
Employees Co-operative Credit Society Ltd., who is the employer of the
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Respondent. The petition challenges an order of the Industrial Court,
Mumbai passed in a revision application. The revision application was
filed by the first Respondent, whose complaint under the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour Practices
Act, 1971 was dismissed by the Labour Court. The Revisional Court
partly allowed the revision application and set aside the order of the
Labour Court, directing the Petitioner employer to reinstate the first
Respondent employee in his original post with continuity of service and
with 50% back wages. Writ Petition No.638 of 2016 is filed by the first
Respondent employee challenging the revisional order referred to above
to the extent that it does not allow full back wages to the employee and
also to the extent that it does not issue a sanction to prosecute the
employer for filing of a false affidavit under Section 193 of IPC read with
Section 33(4) of the MRTU and PULP Act. The two petitions are being
tagged together and disposed of by this common order.
2. The disputes between the parties have a long and
checkered history, which, in any event, bears a mention in detail so as to
understand and resolve the controversy. The facts are, accordingly,
noted below:
(i) On 30 July 1987, the Central Railway Employees Co-
operative Credit Society Ltd. ("Petitioner") appointed Yesumithra
Sabanna ("Respondent") as a Junior Clerk, posting him at Bhusawal.
For the relevant period, the service conditions of the Respondent were
governed by an agreement of 1989, which was a settlement between the
Petitioner and CRECC Workers Union, to whom the Respondent
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belonged.
(ii) On 25 July 1994, the Petitioner transferred the Respondent
from Bhusawal to its Jhansi Branch. On 30 July 1994, the Respondent
was relieved from the Bhusawal Branch, so as to enable him to report at
the Jhansi Branch. The Respondent, however, did not report at the
Jhansi Branch, but instead challenged the transfer order by filing
Complaint (ULP) No.796 of 1994 before the Industrial Court at Mumbai.
The Industrial Court at Mumbai, by way of interim relief, stayed the
transfer order.
(iii) On 30 August 1994, after hearing the parties, the
Respondent's application for interim relief was finally rejected by the
Industrial Court.
(iv) The Respondent challenged the rejection order of the
Industrial Court by filing Writ Petition No.2044 of 1994. During the
pendency of this petition, the interim relief, originally granted by the
Industrial Court, was continued. Finally, by an order dated 17 October
1994, the Respondent's writ petition was rejected by this Court. The
Respondent's Letters Patent Appeal from the rejection order was also
dismissed by a Division Bench of this Court.
(v) On 28 October 1994, having regard to the Respondent's
failure to report at Jhansi, the Petitioner issued a show cause notice to
the Respondent. Since the Respondent refused to accept the show cause
notice, the notice was sent along with a covering letter to his addresses,
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both at Bhusawal and Mumbai. The Respondent did not send any reply
to the show cause notice, but instead kept addressing correspondence
requesting for leave/extension of leave to the Bhusawal Branch Manager
of the Petitioner. On 15 November 1994, the Respondent was informed
by the Bhusawal Branch that since he was relieved from Bhusawal, the
Branch had no administrative control over him. The Respondent was
directed to approach the competent authority for leave, if any.
(vi) On 4 March 1995, after waiting for over four months, the
Petitioner sent another notice to the Respondent. The notice was duly
received by him.
(vii) In the meantime, in 1992, the Respondent had filed a
complaint, being Complaint (ULP) No.60 of 1992, before the Industrial
Court at Nashik, against the Petitioner, presumably relying on a 1976
agreement signed between the Petitioner and the Union, seeking a
transfer at Mumbai. That complaint was dismissed by the Industrial
Court on 9 July 1993. The Respondent challenged that order before this
Court by filing a writ petition, being Writ Petition No.4176 of 1993.
(viii) By its order dated 28 April 1995, this Court disposed of a
civil application by the Respondent in its writ petition directing the
Petitioner to consider the request of the Respondent for being
transferred to Mumbai, having regard to the seniority of persons and
grant the same, if the same was feasible. This Court, at the same time,
clarified that the Court was not persuaded to set aside any of the
transfer orders already passed and that, as far as possible, the
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Respondent may be accommodated in Mumbai, in a vacancy, which may
arise in future.
(ix) On 4 July 1995, considering the request of the Respondent,
the Petitioner transferred the Respondent to Mumbai. Even after the
Respondent resumed duties at Mumbai, the Respondent never made any
application for regularising his leave from the date he was relieved from
the Bhusawal Branch to report at the Jhansi Branch.
(x) In the premises, on 15 January 1996, the Petitioner issued a
charge-sheet to the Respondent for mis-conduct of insubordination and
wilful disobedience of the lawful and reasonable orders of the superiors
and for remaining absent without leave from 17 October 1994 to 4 July
1995, i.e. till the date of his transfer to Mumbai.
(xi) The charges were enquired into with the participation of the
Respondent in the enquiry. The Enquiry Officer found the Respondent
to be guilty of the charges levelled against him.
(xii) In the premises, on 7 June 1996, a show cause notice was
issued to the Respondent calling upon him to show cause why
disciplinary action should not be taken against him. The Respondent did
not reply to this show cause notice. In the premises, on 10 June 1996,
after considering the report of the Enquiry Officer and the past record of
the Respondent, the Petitioner issued a letter awarding him punishment
of dismissal.
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(xiii) The Respondent carried an appeal from the disciplinary
authority to the appellate authority, namely, Chairman of the Petitioner
Society. The appellate authority was pleased to set aside the dismissal
order and remit the matter back to the disciplinary authority to proceed
de- novo from the stage of issuance of show cause notice.
(xiv) In the premises, on 24 July 1996, a fresh show cause notice
calling for the Respondent's explanation was issued to him. The
Respondent submitted his explanation. Once again, the enquiry
proceedings, together with the explanation submitted by the Respondent
to the show cause notice and the past record of the Respondent, was
placed before the Vice Chairman of the Petitioner Society, who, after
going through the same, decided to award the penalty of removal from
service. By a letter dated 23 August 1996, the decision of the
disciplinary authority was acted upon by the Petitioner by issuing a
dismissal order. Once again, the Respondent carried the matter before
the appellate authority, who rejected the Respondent's appeal. The
rejection was conveyed by the Petitioner to the Respondent by its letter
dated 13 November 1996.
(xv) The Respondent, thereupon, challenged the dismissal order
by approaching the Labour Court in a Complaint of unfair labour
practice under Section 28 read with Item 1(a), (b), (c), (d), (e), (f) and
(g) of Schedule IV of the MRTU & PULP Act, 1971, being Complaint
(ULP) No.594 of 1996.
(xvi) Vide its order dated 13 March 1997, the Labour Court
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granted interim relief to the Respondent by way of reinstatement. That
order was challenged by the Petitioner Society in a revision before the
Industrial Court. By its order dated 30 April 1997, the Industrial Court
stayed the reinstatement order for a limited period directing the Labour
Court to dispose of the complaint expeditiously within one month and
directing the Petitioner Society, in the meantime, to deposit the
Respondent's wages from the date of the dismissal order. This order was
modified by the Labour Court by its subsequent order dated 31 May
1997, directing the Petitioner Society to deposit the wages of the
Respondent, pending the hearing of the Respondent's complaint, and
allowing the latter to withdraw such wages by furnishing a surety.
(xvii) In the meantime, by its application, the Petitioner Society in
the Respondent's pending complaint, gave up the issues of fairness of
enquiry and validity of the report and findings of the Enquiry Officer,
and took upon itself to prove the charges levelled against the
Respondent before the Labour Court. Also, in the meantime, the
Respondent made various applications alleging perjury as well as
contempt of court on the part of the Petitioner and applying for transfer
of the original complaint.
(xviii) Many applications and orders later, finally, by its final
judgment and order dated 3 August 2001, after allowing the parties to
lead evidence and after hearing both sides, the Labour Court rejected the
Respondent's complaint and directed the Respondent to refund the
amount of wages received by him, in the interregnum, under the interim
orders passed in the complaint. As of the date of the order, such wages
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amounted to Rs.3,28,816.63.
(xix) The Respondent challenged the dismissal of the complaint,
first by filing a review application before the Labour Court. On 29
January 2001, the review application was rejected by the Labour Court.
That order was challenged by the Respondent before this Court by filing
a writ petition, namely, Writ Petition No.2071 of 2011. The writ
petition was disposed of by this Court by directing the Respondent to
approach the Industrial Court to challenge the final judgment and order
dismissing his complaint by the Labour Court.
(xx) The Respondent, thereafter, approached the Industrial
Court by filing a revision application. On that application, the Industrial
Court remanded the original complaint for a fresh hearing by the Labour
Court. Even that order was challenged by the Respondent before this
Court by filing a writ petition. The writ petition was rejected by this
Court. Thereupon, a Letters Patent Appeal was carried before a Division
Bench of this Court, who also rejected the appeal. The Division Bench
order was carried in a special leave petition before the Supreme Court.
The SLP was rejected by the Supreme Court.
(xxi) In the meantime, on remand of the original complaint, the
applications alleging perjury and contempt of court were rejected by the
Labour Court.
(xxii) Both parties led further evidence in the remanded complaint
before the Labour Court.
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(xxiii) By its order dated 31 December 2004, the Labour Court,
once again, dismissed the original complaint.
(xxiv) The Respondent challenged the dismissal order in a revision
application before the Industrial Court. By its order dated 19 August
2006, the Industrial Court remanded the matter for the third time on
limited issues before the Labour Court.
(xxv) Upon remand, the Respondent chose not to appear before
the Labour Court. In the premises, by its order dated 21 January 2007,
the Labour Court was pleased to dismiss the original complaint for the
third time.
(xxvi) In the meantime, the Respondent had challenged the
remand order of the Industrial Court before this Court by filing a writ
petition, being Writ Petition No.579 of 2007. The writ petition was
eventually withdrawn by him.
(xxvii) The Respondent, thereafter, approached the Labour
Court seeking condonation of delay and restoration of his original
complaint. That application was dismissed by the Labour Court. The
dismissal order was, once again, challenged by the Respondent by filing
a revision application. The revision application was partly allowed by
the Industrial Court directing the Labour Court to decide the delay
condonation application afresh on merits. Finally, the Labour Court
allowed the application and restored the original complaint of the
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Respondent.
(xxviii) It was now the Petitioner's turn to challenge this
order by a revision application before the Industrial Court. That revision
was dismissed by the Industrial Court.
(xxix) By its order dated 22 October 2008, the Labour Court was
pleased to reject the miscellaneous restoration application of the
Respondent.
(xxx)
The Respondent now carried the matter in revision before
the Industrial Court. The revision came to be allowed.
(xxxi) The Petitioner challenged the order of the Revisional Court
before this Court by filing a writ petition. The writ petition was
dismissed.
(xxxii) On 27 June 2010, after the dismissal of the writ
petition, both parties appeared before the Labour Court. By its order
dated 26 February 2010, the Labour Court was pleased to dismiss the
original complaint for the fourth time.
(xxxiii) Once again, the Respondent challenged the order of
the Labour Court before the Industrial Court.
(xxxiv) By its impugned order dated 5 October 2015, after
hearing both the sides, the Industrial Court set aside the order of the
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Labour Court dismissing the complaint, allowed the complaint partly
and directed the Petitioner to reinstate the Respondent with full
facilities and continuity of service with effect from 28 August 1996 along
with 50% back wages based on the salary payable in the month of July
1996.
(xxxv) That order is the subject matter of the challenge
herein at the instance of both parties by way of two separate petitions,
the Petitioner challenging the order of reinstatement with 50% back
wages, and the Respondent challenging the order to the extent of the
refusal to grant him full back wages and also to direct prosecution of the
Petitioner for perjury.
3. The reading of the orders of the Courts below indicates that
the first Court, i.e. the Labour Court, had, after a detailed consideration
of the evidence on record, held that the Petitioner had substantiated the
charges levelled against the Respondent. The Respondent was
transferred from Bhusawal to Jhansi by an order of 25 July 1994 and
relieved from the Bhusawal Branch by a letter dated 29 July 1994, so as
to enable him to report at Jhansi on 24 July 1994. It is an admitted fact
that the Respondent never reported at Jhansi but instead filed a
complaint and prosecuted the same before different courts. It is also an
admitted fact that the Respondent was absent from work and failed to
report at the transferred location, namely, at Jhansi and was absent
from work between 17 October 1994 and 4 July 1995. It is also an
admitted position that after 17 October 1994, the Respondent did not
have any interim order in his favour. The Labour Court, in the
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premises, came to the conclusion that the absenteeism of the
Respondent stood proved by reason of the unauthorised absence
between 17 October 1994 and 4 July 1995. The Labour Court also
considered the Respondent's applications for extension of leave made to
the Branch Manager of the Petitioner at Bhusawal. The Labour Court
noted the admitted position that no leave was granted or extended upon
such applications. The Court noted the letter of the Bhusawal Branch
addressed to the Respondent, communicating to him that it had no
administrative control over him, considering that he was relieved from
the Bhusawal Branch after his transfer to Jhansi. The Labour Court
noted that from the applicable standing orders it appears that any
employee of the Petitioner Society, who desired to obtain leave of
absence, had to apply to the Manager in writing before a stipulated
period; and that no leave or extension could be deemed to have been
granted unless an order to that effect was passed and communicated to
the employee concerned. The Labour Court held that taking into
consideration the standing orders, mere giving or sending of an
application for extension of leave was not sufficient but the leave had to
be granted or extended by a specific order and that no such order was
issued and therefore, it was imperative for the Respondent to have
resumed duties at the transferred location. The Labour Court also
considered whether the punishment awarded to the Respondent was
disproportionate to the gravity of his misconduct. The Labour Court
came to the conclusion, on the basis of the material on record, including
the past service record of the Respondent (which was also considered by
the Disciplinary Authority), that the decision to terminate the
Respondent's services was justified. The Labour Court also considered
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the Respondent's plea that similarly placed employees as the
Respondent, who had committed the same misconduct, were awarded
minor punishments, but were not terminated from service. The Labour
Court considered the distinction between the cases of these other
employees and the case of the Respondent. The Court rightly
considered that the other employees had submitted applications for
regularisation of their leave as without pay or extraordinary leave and,
in the premises, such leave was granted and a minor punishment was
inflicted upon them. The Labour Court, in the premises, dismissed the
complaint.
4. In my view, this order was clearly in accordance with law. It
duly considered the evidence on record. It considered all the pleas
advanced by the parties. It did not refer to any irrelevant material or
disregard any relevant material and came to a conclusion, which is pre-
eminently a possible conclusion.
5. In its impugned order, whilst setting aside the order of the
Labour Court and reinstating the Respondent with 50% back wages, the
Industrial Court appears to have analyzed the evidence afresh, and quite
wrongly at that, as I have noted below. The Industrial Court, at the
outset, accepted the ratio of various rulings cited before it that its
powers, sitting as a revisional court, did not include the power to re-
assess the material on record as a full fledged appeal but that it could
interfere with the order of the Labour Court only if the same was
perverse. (That has been the consistent view of all courts including our
court in the judgments cited by the Respondent, namely, Hotel Oberoi
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Towers vs. Gopal Naidu1, Spices and Oil Seeds Exchange vs. Suhas
Anant Kulkarni2 and Maruti Dattatraya Patankar vs. M.D., Kolhapur
Zilla Shetkari Vinkari Sahakari Soot Girni Ltd. 3) Yet, at the same time,
as the impugned order of the Industrial Court discloses, it clearly re-
appreciated the entire evidence on record. What is more striking,
however, is that while re-appreciating the evidence, the Industrial Court
did not, in terms, deal with the aspect of unauthorised absence of the
Respondent between 17 October 1994 and 4 July 1995. It did not, in
terms, consider the main question as to whether or not the Respondent
was justified in reporting for the duty at the transferred location,
namely, Jhansi, between 17 October 1994 and 4 July 1995, during
which period the Respondent's complaint of unfair labour practice on
account of his transfer had stood rejected and that there was no interim
order by any Court allowing the Respondent not to join duties at the
transferred location. The only ground, which seems to have weighed
with the Industrial Court, is that the Respondent was finally transferred
by the Petitioner to Mumbai in pursuance of the direction of this Court
in the Respondent's writ petition (Writ Petition No. 638 of 2016). In the
first place, it is important to note that this Court, whilst directing the
Petitioner to consider the Respondent's application for transfer to
Mumbai (and not really directing the Petitioner to transfer him), had
expressly observed that by issuing such directions, it was not interfering
in any way with the transfer orders themselves. It is a forgone
conclusion, in the premises, that the original order of transfer of the
Respondent from Bhusawal to Jhansi had always stood the ground. It
1 2002(4) BOmCR58
2 1989 High Court, Bombay, 395
3 W.P.No.5002/1989 dated April 17, 1995, Cora: B.N. Srikrishna, J.
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was only that this Court wanted the Petitioner Society to consider,
having regard to various circumstances, including vacancies that may
arise in future, whether the Respondent could be transferred to Mumbai.
Any transfer to Mumbai, in the premises, operates with effect from the
date of such transfer. That happened on 4 July 1995. This transfer, per
se, is no justification for the Respondent not having joined duties at the
transferred location earlier, namely, at Jhansi. Admittedly, after 17
October 1994, when the dismissal of the Respondent's complaint was
affirmed by this Court and the interim relief in favour of the Respondent
was vacated, the Respondent had no business to refrain from joining
duties at Jhansi. His subsequent transfer by the Petitioner to Mumbai
does not absolve him of his absence between 17 October 1994 and 4
July 1995, i.e. the date of his subsequent transfer to Mumbai.
6. The Industrial Court appears to have wrongly referred to
Clauses 3 and 5 of Schedule IV of the MRTU and PULP Act, 1971. In the
first place, it was not his transfer to Jhansi, which was challenged by the
Respondent in his original complaint. Secondly, and at any rate, the
Labour Court had no jurisdiction to entertain any complaint on account
of the Respondent's transfer. The Labour Court was simply considering
whether the Respondent's dismissal was an unfair labour practice within
the meaning of Clause 1 of Schedule IV.
7. So also, the case of the other four employees considered by
the Industrial Court in the light of the plea of disproportionate
punishment, does not appear to be in order. In the first place, there was
no need for the Industrial Court to reassess the evidence in this behalf.
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Secondly, and more importantly, the distinguishing feature of the others'
case from the case of the Respondent, namely, their applications for
regularisation of leave as unpaid leave or extra ordinary leave which
were accepted, and which matter was rightly considered by the Labour
Court, does not appear to have been considered by the Industrial Court.
The Industrial Court not only reassessed the evidence unauthorizedly,
but even whilst assessing it, has come to improper and impermissible
conclusions.
8. The cases of The Director, N.R.S.A. Balanagar, Hyderabad
vs. G. Reddeppa4, L. Ragupathy vs. Addl. Commr. For Workmen's
Compensation5 and Birendra Kumar Das vs. State of Bihar 6 cited by
the Respondent are clearly distinguishable. In Reddeppa's case, for
refusing to accept the transfer order, the concerned employee was
awarded the punishment of dismissal. Quite so, but there the similarity
between that case and our case ends. In Reddeppa's case, the terms of
employment were governed by Central Civil Service Rules ('CCA Rules').
These Rules classified minor and major penalties and also provided for
type of cases which would merit the respective actions for imposing
minor and major penalties. The cases in which major penalties, which
included dismissal of the delinquent employee, could be awarded were
not just cases of misconduct, but of substantial misdemeanour which
presented an element of criminality. What the Court found was that the
failure to report for duty, which was the foundation for the action
against the employee in that case, was no doubt an actionable lapse, but
4 1991 LAB I.C. 1378
5 H.C.MAD. 789
6 1994 (Pat. H.C.) 870
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to describe the same as substantial misdemeanour within the CCA Rules
was both arbitrary and unreasonable, and accordingly, the dismissal
was held to be illegal. These facts have no bearing on our case.
Reddeppa's case is not an authority for a general proposition that
refusal to accept a transfer order or failure to report on duty upon
transfer cannot attract the penalty of dismissal. In Ragupathy's case,
the Court found that there was no proper transfer order passed by the
competent authority. The Court also did not find merit in the employer's
plea that the employee had acquiesced in the order of transfer. The
Court, in the premises, interfered with the dismissal based on non-
compliance with the transfer order. In Birendra Kumar Das, the
employee had remained absent from duty on a certain misconceived
notion of law and wrong legal advice and the Court held that this did
not warrant a major punishment of discharge as awarded to the
employee. The Court found that the punishment was not commensurate
with the gravity of the charge. Even these facts are clearly
distinguishable from the facts of our case. In our case, despite this
Court vacating the interim relief, and the Respondent's applications for
leave not being granted by the Petitioner, he chose to remain absent and
did not join duties at the transferred location for more than eight
months. That is a serious misconduct and it would warrant the
punishment of dismissal.
9. At the hearing of the writ petition, it was submitted by the
Respondent that the disciplinary authority, which passed the order of
dismissal, had no jurisdiction or authority to do so. I am afraid, this
was not a point raised in the original complaint of the Respondent whilst
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challenging his dismissal. Neither of the Courts below has accepted the
Respondent's contention in this behalf. This aspect of the orders of the
Courts below is not the subject matter of challenge before this Court
either. In any event, it is seen from the documents produced before this
Court at the hearing of the writ petitions by the Respondent himself
that the original order of dismissal was passed by the Vice Chairman of
the Petitioner Society, though conveyed by the Chief Manager. That
order was carried by the Respondent before the appellate authority,
namely, the Chairman. It also appears from the documents produced
before this Court, namely, the minutes of the board meetings, that even
the board of directors of the Petitioner Society, in its meeting dated 21
March 1997, had unanimously ratified the action taken by the Chief
Manager of the Petitioner vide his circular dated 2 December 1996
dismissing the Respondent from the services of the Society. There is,
thus, no merit in this contention. The judgment of the Supreme Court in
the case of Marathwada University vs. Seshrao Balwant Rao Chavan 7
is of no assistance to the Respondent. Apart from the question of
delegation, there is also a case of ratification here, such ratification
being clearly borne out by the record.
10. In the premises, the impugned order of the revisional court
suffers from a grave infirmity and cannot be sustained.
11. Accordingly, Rule issued in Writ Petition No.460 of 2016 is
made absolute and the impugned order of the Industrial Court is
quashed and set aside. The order of the Labour Court at Mumbai, dated
7 Civil Appeal No.3927 of 1986 dated 13 April, 1989, Cora: K. Jagannath Shetty & Kuldip Singh, JJ.
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26 February 2010, is restored. The Respondent is directed to refund the
amount of Rs.3,28,816.63 to the Petitioner Society within a period of
eight weeks from today.
12. As far as the Respondent's writ petition, namely, Writ
Petition No.638 of 2016 is concerned, the challenge of the Respondent
to the revisional court's refusal to allow 50% of back wages to him,
stands repelled for the same reasons, which are indicated above. Since
the order of reinstatement with any back wages is not sustainable, there
is no question for the Respondent being entitled to the balance 50% of
back wages. The cases on back wages cited by the Respondent, namely,
S.M. Saiyad vs. Baroda Municipal Corporation Baroda 8 and
Metropolitan Transport Corporation vs. V. Venkatesan 9, are of no
assistance to the Respondent.
13. Insofar as the Respondent's challenge to the refusal of the
Revisional Court for sanction of prosecution under Section 195 of the
Code of Criminal Procedure is concerned, it is apparent from the record
that what the Respondent alleges as false testimony, is nothing but the
pleas taken by the Petitioner in the original complaint. Merely because
these pleas are raised in an affidavit, they do not cease to be pleas. (In
any event, all pleadings in a complaint are in a form of affidavits.) In its
affidavit-in-reply, the Petitioner has denied the Respondent's case that
the Respondent had asked the Enquiry Officer to supply documents
relating to the charges framed. It had also taken up a plea that the
Respondent had not asked for any list of witnesses. The Petitioner had
8 AIR 1984 SC 1829
9 AIR 2010 SC 206
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also submitted in its reply that the Respondent was not an active
unionist, as contended by him. The Petitioner had also taken up a plea
that it had not received any formal communication from the Respondent
during the period of his unauthorised absence. These are matters of
pleadings. Even if these pleadings were found by the court to be wrong,
such finding does not invite either an action in perjury or any contempt
of Court. In any event, the Court has not found these pleas to be
incorrect. There is, accordingly, no question of the Industrial Court
issuing any sanction for prosecuting the Petitioner for perjury or for
contempt of court. The Respondent relied on a judgment of the
Supreme Court in the case of K. Karunakaran vs. T.V. Eachara
Warrier10 and a judgment of our Court in Pritish Ramrao Tayde vs.
State of Maharashtra11, in support of his contention that all that has to
be considered at the stage of an inquiry for a prosecution under Sections
193 or 195 is, whether a prima facie case is made out and it is in the
interest of justice to take such action. There is no quarrel with this
proposition. But the question here is, whether such prima facie case is
made out. The Court below did not think so, and this Court finds no
reason to interfere with that finding. Besides, as held by the Supreme
Court in the case of Dr. S.P. Kohli vs. High Court of Punjab and
Haryana through Registrar12, cited by the Respondent himself, there
must not only be a prima facie finding that there is falsehood, but that
such falsehood is deliberate and conscious for the Court to sanction such
prosecution. There is no such case here.
10 Criminal Appeal No.272 of 1977, decided on 16.11.1977, Coram: P.K. Goswami and V.D.
Tulzapurkar, JJ.
11 2001(1) Mh.L.J., 937
12 Criminal Appeal Nos. 3 of 1977, decided on 12.09.1978, Cora: A.D. Koshal, Jaswant Singh and
P.S. Kailasam, JJ.
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14. There is, thus, no merit in the Respondent's petition.
Accordingly, Rule in Writ Petition No.638 of 2016 is discharged and the
petition is dismissed.
15. In the facts of the case, there shall be no order as to costs.
( S.C. GUPTE, J. )
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