Bombay High Court
M.S.R.T.C.,Aurangabad vs Babulal Chhaganlal Choudhary on 18 August, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3644 OF 1996
Maharashtra State Road Transport
Corporation,
Through it's Works Manager
S.T.Chikalthana, Aurangabad.
...PETITIONER
-VERSUS-
Babulal Chhaganlal Choudhari,
Age Major, Occupation : Ex Security Guard,
R/o House No.1-28-10,
Opposite Ajintha Hotel, Chalipura,
Aurangabad.
Since died, through his L.Rs.:-
1a) Smt.Jamnabai wd/o Babulal Choudhari,
Age : 53 years, Occupation : Household,
R/o Chelipura, Aurangabad.
1b) Sow.Asha w/o Santosh Raut,
Age : 31 years, Occupation : Household,
R/o Waluj Pandharpur, Tq.Gangapur,
District Aurangabad.
1c) Prakash s/o Babulal Choudhari,
Age : 29 years, Occupation : Laundry,
R/o Chelipura, Aurangabad.
1d) Sow.Varsha w/o Manoj Nawale,
Age : 27 years, Occupation : Household,
R/o Subhash Nagar, Dhule.
1e) Sow.Jyoti w/o Kailash Parate,
Age : 25 years, Occupation : Household,
R/o Subhash Nagar, Dhule.
..RESPONDENTS
...
None for Petitioner.
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Shri Pradeep L. Shahane h/f Shri C.R.Deshpande, Advocate for the
Respondents.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 18th August, 2016
Oral Judgment :
1 This petition has been admitted on 05.08.1996 and this Court
declined interim relief to the Petitioner Corporation. Subsequently, after
the Respondent/ Employee passed away on 27.08.2003, his legal heirs
have now been brought on record in this petition.
2 The Petitioner Corporation is aggrieved by the judgment and
order dated 20.06.1996 delivered by the Industrial Court by which
Revision (ULP) No.2/1995 filed by the deceased employee was allowed.
Consequentially, the judgment of the Labour Court dated 30.08.1994
dismissing the complaint was set aside and Complaint (ULP) No.49/1992
was allowed thereby, granting reinstatement with continuity of service and
full back-wages to the deceased employee.
3 None appears for the Petitioner/ Corporation.
4 I have considered the strenuous submissions of Shri Shahane,
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learned Advocate appearing on behalf of the legal heirs of the deceased
employee.
5 The deceased employee had joined as a Security Guard on
19.03.1979 and was taken on regular time scale on 01.11.1980. He was
served with the charge sheet dated 12.04.1986 alleging that on
01.08.1985 he had asked for illegal gratification to a Majdoor, namely,
Ramchandra Ashruba Wavhal so as to permit him to enter the Central
Work Shop. It was also alleged that he slapped the Majdoor two times.
The departmental enquiry was conducted against the deceased employee.
The second show cause notice dated 15.11.1988 proposing the
punishment of dismissal was served upon him along with the findings of
the Enquiry Officer. Despite his reply, the Petitioner Corporation dismissed
the deceased employee by order dated 22.12.1988.
6 He submits that the deceased challenged his dismissal before
the Labour Court. The contention is that the Labour Court had failed to
consider the record and proceedings in the enquiry and had dismissed the
complaint without proper application of mind. He preferred a revision
petition which was allowed and he was granted reinstatement in service
with continuity and back wages.
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7 Shri Shahane submits that the deceased employee was
reinstated on 24.08.1996 and he resigned from employment on
21.09.2002. Subsequently, he passed away on 27.08.2003. It is, therefore,
submitted that the issue of full back-wages from 22.12.1988 till
23.08.1996 would be subject matter of this petition.
8 He further submits that the Industrial Court has rightly gone
through the record and proceedings of the enquiry and has come to the
conclusion that though the Enquiry Officer did not accept the proof about
incident of slapping and demand of money, he held the deceased
employee guilty of the charge of absence and leaving the place of work
without permission. Glaring infirmities in the findings of the Enquiry
Officer were appreciated by the Industrial Court and therefore, it
concluded that the findings of the Enquiry Officer are perverse. As such,
the Industrial Court allowed the revision and granted the reliefs to the
deceased employee as the charges were not proved against him.
9 I have considered the record available with the assistance of
Shri Shahane and also his strenuous submissions. He has placed reliance
on the judgments of the Honourable Supreme Court in Gauri Shankar vs.
State of Rajasthan, 2015 (2) CLR 497 and Nicholas Piramal India Limited
v/s Hari Singh, 2015 (2) CLR 468, to contend that at least 50% of the
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back wages deserve to be granted to an employee if the termination is
held to be illegal.
10 The deceased employee had resigned from employment on
21.09.2002. The Employer-Employee relationship as such was brought to
an end. This aspect needs to be considered in the light of the fact that
though the deceased employee had challenged the fairness of the enquiry
and the findings of the Enquiry Officer, the Labour Court did not frame the
following two issues:-
(a) Whether, the Complainant proves that the enquiry is vitiated
on account of non observance of the principles of natural justice?
(b) Whether, the Complainant proves that the findings of the
Enquiry Officer are perverse?
11 The Honourable Supreme Court, in the matter of Workmen of
the Motipur Sugar Factory Private Limited vs. The Motipur Sugar Factory
Private Limited, AIR 1965 SC 1803, has laid down the law for the first
time that in the cases where the delinquent challenges the fairness of the
enquiry and the findings of the Enquiry Officer, the above said two issues
need to be framed so as to consider whether, the enquiry can be sustained
or not. It was, therefore, concluded by the Honourable Supreme Court
that if the enquiry is set aside for any reason whatsoever, the case would
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stand on a footing of no enquiry and the whole issue, therefore, would be
open before the Court. The Employer would then be at liberty to justify
the charges levelled upon the delinquent and the punishment awarded to
him.
12 The judgment of the Honourable Supreme Court in the matter
of Motipur Sugar Factory (supra) was subsequently considered in the
matter of Delhi Cloth and General Mills Company Limited v/s Ludh Budh
Singh, 1972 (1) SCC 595 and thereafter, in Shambhu Nath Goyal v/s Bank
of Baroda, 1984(4) SCC 491.
13 In the judgment of the Honourable Supreme Court in the
matter of Bharat Forge Company Ltd. v/s A.B.Zodge, 1996 (73) FLR 1754 :
AIR 1996 SC 1556, it was held that the enquiry can be set aside on any
count including for non observance of the principles of natural justice
and/or the findings of the Enquiry Officer being perverse. It was thus, held
that oral evidence recorded in such an enquiry, thereafter, would not be
available and the Court need not rely upon the same as the Employer can
conduct a de-novo enquiry before the Court.
14 In the instant case, neither the Labour Court framed the
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above said two issues, nor did the litigating sides request the Labour Court
to do so. It appears from the judgment of the Labour Court dated
30.08.1994 that the litigating sides did not adduce any evidence. The
deceased employee admitted the enquiry papers in his oral submissions
and further admitted that he does not desire to challenge the enquiry.
15 These submissions, while addressing the Court finally, were
taken into account by the Labour Court and therefore, the Labour Court
proceeded to decide the complaint only on the point of whether, the
punishment awarded to the deceased employee was proportionate or was
shockingly disproportionate. The Labour Court, therefore, concluded that
the charge of slapping the Majdoor was proved and hence, the
punishment awarded was not shockingly disproportionate. As such, the
complaint was dismissed.
16 Before the Industrial Court, the entire enquiry was reopened
and based on oral submissions, the Industrial Court, in it's revisional
jurisdiction under Section 44 of the MRTU & PULP Act, 1971, concluded
that the Labour Court did not consider the entire record and proceedings
of the enquiry and the charge of slapping the Majdoor two times was not
proved. The findings of the Enquiry Officer were held to be perverse and
as such, the enquiry was set aside. This could not have been done after the
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deceased had given up his challenge to the enquiry before the Labour
Court.
17 Even otherwise, in my view, considering the long standing law
of more than 50 years, the Industrial Court should have remanded the
complaint to the Labour Court for permitting the Petitioner Corporation to
lead evidence and justify the charges and the punishment, the moment the
Industrial Court concluded that the findings are perverse. It could not
have branded the findings as perverse in the same judgment in which it
granted the relief of reinstatement with continuity and full back-wages to
the deceased employee. For these reasons, the impugned judgment of the
Industrial Court deserves to be quashed and set aside.
18 Pursuant to my conclusions as above, Complaint (ULP)
No.49/1992 deserves to be remitted to the Labour Court for permitting
the Petitioner Corporation to conduct a de-novo enquiry. However, I find it
appropriate to accept the submissions of Shri Shahane that as the
delinquent employee is no more and since the order of reinstatement had
already been complied with, it would be harsh to remit the matter to the
Labour Court and make the legal heirs of the deceased employee suffer
the rigours of litigation.
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19 Considering the request of Shri Shahane, I am not directing
the remittance of the complaint to the Labour Court for permitting the
Petitioner Corporation to conduct a de-novo enquiry. Notwithstanding the
same, it is apparent that the deceased employee has gained success in the
revision before the Industrial Court by the impugned judgment under
fortuitous circumstances because the judgments of the Honourable
Supreme Court in the cases of Motipur Sugar Factory, Delhi Cloth and
General Mills and Bharat Forge Company (supra) were not cited. Had those
judgments been placed on record, the Industrial Court would have
remanded the complaint to the Labour Court in 1996 itself. So also, under
these fortuitous circumstances, the deceased employee was reinstated and
was granted continuity in service. The back wages were, however, not paid
as this Court had stayed the direction to pay the back-wages.
20 In the light of the peculiar facts as recorded above, this Writ
Petition is partly allowed. The impugned judgment of the Industrial Court
dated 20.06.1996 stands modified by setting aside the direction of the
Industrial Court awarding full back-wages to the deceased employee. The
direction of reinstatement with continuity of service will, therefore, stand
sustained in the light of the above facts.
21 In the event the deceased was entitled to the retiral benefits
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and/or pensionary benefits and if not already paid, they shall, therefore,
be paid by the Petitioner Corporation to the widow of the deceased
employee, namely, Smt.Jamnabai wd/o Babulal Choudhari, within a
period of TWELVE WEEKS from today.
22 Rule is made partly absolute in the above terms.
kps ig (RAVINDRA V. GHUGE, J.)
