Bombay High Court
Mr. Subhash Nivrutti Pawar vs The Chief Executive Officer, ... on 29 August, 2016
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9120 OF 2016
1] Chief Executive Officer, ]
Maharashtra State Khadi and ]
Village Industries Board 91/21 ]
Manohardas Street, Fort, ]
Mumbai 400 001 ]
]
2] Director, Handmade Paper ]
Institute, K.B.Joshi Marg, Shivaji ]
Nagar, Pune 411005 ]..... Petitioners.
Versus
1] Shri Prashant Raghunath Kulkarni ]
Residing at C-1/4, Todkar Township ]
Sanas Nagar, Hadapsar, Pune 411028 ]
]
2] Judge, Labour Court, Pune ]
]
3] Member, Industrial Court, Pune ]..... Respondents.
ALONG WITH
WRIT PETITION NO.9121 OF 2016
1] Chief Executive Officer, ]
Maharashtra State Khadi and ]
Village Industries Board 91/21 ]
Manohardas Street, Fort, ]
Mumbai 400 001 ]
]
2] Director, Handmade Paper ]
Institute, K.B.Joshi Marg, Shivaji ]
Nagar, Pune 411005 ]..... Petitioners.
Versus
1] Shri Subhash Nivrutti Pawar ]
Residing at S.No.4/6, A/6-B ]
At Post Kivale ]
Tal. Haveli, Dist. Pune ]
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]
2] Judge, Labour Court, Pune ]
]
3] Member, Industrial Court, Pune ]..... Respondents.
ALONG WITH
WRIT PETITION STAMP NO.23417 OF 2016
Mr. Prashant Raghunath Kulkarni ]
C-1/4, todkar Township, ]
Sanasnagar, Hadapsar, ]
Pune : 411 028 ]..... Petitioner.
Versus
1]
The Chief Executive Officer
Maharashtra State Khadi and Village
]
]
Industries Board ]
19/21, Manohardas Street, Fort, ]
MUMBAI - 400 001 ]
]
2] The Director ]
Handmade Paper Institute ]
K.B. Joshi Marg, Shivajinagar ]
PUNE - 411005 ]..... Respondents.
ALONG WITH
WRIT PETITION STAMP NO.23418 OF 2016
Mr. Subhash Nivrutti Pawar ]
S.No.4/6-A/6-B ]
At & Post : Kivale, ]
Tal : Haveli ]
Dist. Pune 412 101 ]..... Petitioner.
Versus
1] The Chief Executive Officer ]
Maharashtra State Khadi and Village ]
Industries Board ]
19/21, Manohardas Street, Fort, ]
MUMBAI - 400 001 ]
]
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2] The Director ]
Handmade Paper Institute ]
K.B. Joshi Marg, Shivajinagar ]
PUNE - 411005 ]..... Respondents.
Mr. Kiran Bapat i/by M/s. Desai and Desai Associates for the Petitioners in
Writ Petition Nos.1920 of 2016 and 1921 of 2016 and for the Respondents
in Writ Petition Stamp Nos.23417 of 2016 and 23418 of 2016.
Mr. Nitin A Kulkarni for the Petitioners in Writ Petition Stamp Nos.23417
of 2016 and 23418 of 2016 and for the Respondent No.1 in Writ Petition
Nos.1920 of 2016 and 1921 of 2016.
CORAM : R. M. SAVANT, J.
DATE : 29th August 2016
ORAL JUDGMENT :-
1 Rule in all the above four Petitions, with the consent of the learned
counsel for the parties made returnable forthwith and heard.
2 The writ jurisdiction of this Court under Articles 226 and 227 of
the Constitution of India is invoked against the judgments and orders dated
04/07/2016 passed by the learned I/c. Member of the Industrial Court Pune
by which orders, the Revision Application (ULP) No.42 of 2016 and Revision
Application (ULP) No.41 of 2016 came to be partly allowed thereby the
Petitioners in Writ Petition No.9120 of 2016 and 9121 of 2016 were directed to
pay to the Applicants i.e. the Respondents in the said Petitions 25% of the back
wages from the date of their dismissal. The order of the Labour Court
directing reinstatement of the Respondents in the said Writ Petitions was not
interfered with.
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3 The Petitioners in Writ Petition Nos.1920 of 2016 and 1921 of
2016 i.e. the Maharashtra State Khadi and Village Industries Board would be
referred to as the State Khadi Board whereas the Respondents in the said Writ
Petitions and the Writ Petition Stamp Nos.23417 of 2016 and 23418 of 2016
would be referred to as the Complainants.
4 It is not necessary to burden this order with unnecessary details
having regard to the nature of the final directions that are required to be issued
in the above Writ Petitions. Suffice it would be to state that the Complainants
were working with Handmade Paper Institute run under aegis of the State
Khadi Board. It seems that certain directions came to be issued to the
Complainants as regards their employment which directions the Complainants
did not follow resulting in termination of their services vide order dated
02/06/2011 ostensibly on the ground of willful insubordination resulting in
loss of confidence. The Complainants invoked the provisions of MRTU & PULP
Act, 1971 and filed Complaint ULP No.175 of 2011 and Complaint ULP No.174
of 2011.
5 In the written statement which was filed by the State Khadi Board
amongst the contentions which were raised in opposition to the reliefs sought
in the Complaints was the contention of the State Khadi Board that the
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Complainants were supervisors and therefore not workmen within the meaning
of the term as given in the Industrial Disputes Act. In view of the fact that the
State Khadi Board had not held an inquiry prior to the termination of the
services of the Complainants, the State Khadi Board sought permission of the
Labour Court to lead evidence to prove the misconduct in the Court.
Upon this, the Complainants filed a purshis before the Labour
Court that since it is the State Khadi Board i.e. the Respondent in the
Complaints who has to prove the misconduct, it would have to lead evidence
first. The said purshis was accepted by the Labour Court and accordingly the
State Khadi Board led evidence of two witnesses in support of its case as stated
in the Written Statement. The Complainants also adduced their own evidence
to controvert the evidence adduced by the State Khadi Board.
6 The learned Judge of the Labour Court had, prior thereto, framed
issues revolving around, whether Complainants are employees; whether
Complainants prove that the Respondent i.e. the State Khadi Board has
engaged in unfair labour practices; whether the Complainants prove that the
Respondents illegally terminated them; and whether the Respondents i.e. the
State Khadi Board prove the alleged misconduct of the Complainants, and as to
what relief the Complainants are entitled to.
7 The learned Judge of the Labour Court held that the Complainants
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are the employees within the meaning of Section 3(5) of the MRTU & PULP
Act, 1971. However, in the context of the challenge raised in the Writ Petitions
filed by the State Khadi Board, what is required to be noted is the answer to
Issue No.4. The learned Judge of the Labour Court recorded the answer to the
said Issue No.4 as "Does not survive", in view of the fact that the justification
given by the State Khadi Board i.e. the Respondents in the Complaints for not
holding an inquiry was not acceptable and therefore the evidence adduced by
the State Khadi Board could not be looked into. The Labour Court in
answering the said issue has relied upon the the judgments of the learned
Single Judges of this Court in Bank Karmachari Sangh Vs. Cosmos Co-op,.
Urban Bank Ltd & ors reported in 1998-I-CLR 504 Bom. and the judgment of
the Apex Court in Gujarat Steel Tubes Ltd. and Gujarat Steel Tubes Mazdoor
Sabha reported in 1980 I LLJ 137 SC. The Labour Court therefore did not
deem it appropriate to look into the evidence adduced on behalf of the State
Khadi Board to prove the misconduct in Court. The answer to the said issue
has impacted the answers to the other issues, once the Labour Court came to a
conclusion that the misconduct has not been proved by the State Khadi Board.
The learned Judge of the Labour Court No.2, Pune by the judgments and
orders dated 28/03/2011 has accordingly allowed the Complaints and directed
the reinstatement of the Complainants on the same terms and conditions on
the basis of which they were employed, and the Respondents in the Complaints
i.e. the State Khadi Board was directed to pay 25% back wages to the
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Complainants from the date of dismissal i.e. 02/06/2011 till reinstatement in
service.
8 The said judgments and orders dated 28/03/2011 passed by the
learned Judge of the Labour Court No.2, Pune in Complaint ULP Nos.175 of
2011 and 174 of 2011 were taken exception to by the State Khadi Board by
filing Revision Application (ULP) Nos.42 of 2016 and 41 of 2016 before the
Industrial Court.
The Industrial Court in so far as the said Issue is concerned,
reiterated the finding of the Labour Court and confirmed the finding of the
Labour Court in so far as the said issue is concerned. However, the Industrial
Court has set aside the grant of 25% of the back wages passed by the Labour
Court, but however, directed that the reinstatement would be with continuity
of service. As indicated above, it is the said judgments and orders dated
04/07/2016 which are taken exception to in the Petitions filed by the State
Khadi Board in so far as the grant of reinstatement is concerned.
The Complainants have challenged the said Judgments and Orders
of the Labour Court by which orders the Labour Court refused to grant full
back wages and only granted 25% back wages by filing Revision Applications
(ULP) Nos.45 of 2016 and 46 of 2016. As indicated above, it is the said
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judgments and orders dated 04/07/2016 which are taken exception to in the
Petitions filed by the Complainants in so far as setting aside the grant of back
wages is concerned.
9 The principal contention of the learned counsel appearing for the
State Khadi Board is that the learned Judge of the Labour Court has erred in
holding that since the justification given by the State Khadi Board for not
holding inquiry is not found to be acceptable, the evidence cannot be looked
into. The learned counsel for the State Khadi Board would contend that the
case of a defective inquiry and a case of no inquiry stands on the same footing
and in support of the said contention sought to place reliance on the judgment
of the Apex Court in Bharat Forge Co. Ltd. v/s. A B Zodge and another
reported in (1996) 4 SCC 374 wherein the Apex Court has held that
disciplinary action taken on the basis of a vitiated enquiry does not stand on a
better footing than a disciplinary action with no enquiry. The right of the
employer to adduce evidence in both the situations is well recognized, and
therefore, the employer is entitled to adduce evidence, for the first time, before
the Tribunal even if the employer had held no inquiry or the inquiry held by
the employer is found to be defective. It was therefore the submission of the
learned counsel that the learned Judge of the Labour Court ought to have
looked into the evidence and thereafter ought to have come to a conclusion
whether the termination of the Complainants was justified by the State Khadi
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Board or not.
10 Per contra, the learned counsel for the Complainants Shri N A
Kulkarni would submit that since in the instant case no charge-sheet was
issued, the findings recorded by the learned Judge of the Labour Court in
respect of the said issue cannot be found fault with. It was the submission of
the learned counsel for the Complainants that the evidence can be allowed to
be led in the Court in respect of the charges in the charge-sheet and not
otherwise as the Labour Court cannot frame charges in the Court for the first
time. In support of the said contention the learned counsel for the
Complainants sought to place reliance on the judgments of the learned Single
Judges of this Court in Theatre Employees' Union & ors v/s. S V Kotnis and
ors reported in 1992 I CLR 474 and the judgment in Wai Taluka Sahakari
Kharedi Vikri Santh Ltd. Satara v/s. Bajirao Mahadeo Mahadik reported in
1992 I CLR 637. The learned counsel for the Complainants would submit that
though the Labour Court has non-suited the Respondents i.e. the State Khadi
Board on a different ground, the orders can still to be justified on the
touchstone of the aforesaid two judgments.
Upon this the learned counsel appearing on behalf of the State
Khadi Board Shri Bapat would draw this Court's attention to the judgment in D
D Shah & Co. v/s. Vajidali T. Kadri reported in 2007 I CLR 913, and the
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judgment of the Division Bench of this Court in LPA No.149 of 2007 in the case
of Vajidali T Kadri v/s. D.D.Shah and Co. reported in 2007(6) Mh.L.J. 650.
In the said LPA the order passed by a learned Single Judge of this Court was
challenged.
It was the submission of the learned counsel Shri Bapat in
rejoinder that the judgment in Theatre Employees' Union's case (supra) and in
Wai Taluka Sahakari Kharedi Vikri Santh Ltd. Satara's case (supra) as well
as Bank Karmachari Sangh's case (supra) is no more good law in view of the
judgment of the Division Bench in Vajidali T Kadri's case (supra).
11 Having heard the learned counsel for the parties, I have
considered the rival contentions. As indicated herein above, the learned Judge
of the Labour Court has refused to look into the evidence adduced on behalf of
the State Khadi Board on the ground that the justification for not holding an
inquiry was found not acceptable by it. In so far as the said aspect is
concerned, it is well settled by the pronouncements of the Apex Court from
time to time that a defective inquiry and a case of no inquiry stand on the same
footing. A reference could be made to the judgment of the Apex Court in
Bharat Forge Co. Ltd. case (supra). However, the learned counsel appearing
on behalf of the Complainants Shri Kulkarni sought to change track by
contending that though the position is well settled as enunciated in Bharat
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Forge Co. Ltd.'s case (supra), what is required to be seen is whether the
charge-sheet has been issued as the evidence can be allowed to be led in the
Court for the first time only in respect of the charges which are appearing in
the charge-sheet. In support of the said contention, reliance is sought to be
placed, as indicated above, on Theatre Employees' Union's case (supra), Wai
Taluka Sahakari Kharedi Vikri Santh Ltd. Satara's case (supra) as well as
Bank Karmachari Sangh's case (supra). In so far as the said aspect is
concerned, it is not necessary to dilate further as the said judgments were
considered by a learned Single Judge of this Court in D.D.Shah & Co.'s case
(supra), and in the light of the judgments of the Apex Court in Punjab
National Bank Ltd vs. All India Punjab National Bank Employees
Federation and another reported in AIR 1960 SC 160 and in Delhi Cloth and
General Mills Co. vs. Ludh Budh Singh reported in AIR 1972 SC 1031 as also
the reiteration of the said principles in The workmen of M/s. Firestone Tyre
and Rubber Co. of India Pvt. Ltd vs. The Management and ors reported in
AIR 1973 SC 1227. The learned Single Judge of this Court concluded in
paragraph 11 thus :-
"The decision by the learned Single Judge of this Court
in the matters of S.V. Kotnis (supra), Bajirao Mahadeo
Mahadik (supra) and Bank Karmachari Sangh (supra)
were in the peculiar facts of each of those decisions. In
any case, the law on the point being clearly laid down
by the decision of the Apex Court, the decisions of this
Court contrary to the decisions of the Apex Court can be
of no help to the respondent to justify the impugned
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order."
The facts in the D.D.Shah & Co.'s case (supra) were identical to the facts in the
instant case. In the said case the learned Judge of the Labour Court had
granted permission to the employer to adduce evidence before the Court which
order was challenged in the Industrial Court. The Industrial Court had set aside
the said order which resulted in filing of a Writ Petition in this Court which had
come before a learned Single Judge of this Court. The learned Single Judge of
this Court has therefore in the light of the judgments of the Apex Court has
held that the law on the point being clearly laid down by the decisions of the
Apex Court, the decision of this Court contrary to the said decisions of the
Apex Court can therefore be of no help to the Respondent to justify the
impugned order.
12 The judgment of the learned Single Judge of this Court in
D.D.Shah & Co.'s case (supra) was carried by way of an LPA to a Division
Bench of this Court. The Division Bench of this Court in paragraphs 6, 7 and 8
has adverted to the judgments in Theatre Employees' Union's case (supra),
Wai Taluka Sahakari Kharedi Vikri Santh Ltd. Satara's case (supra) as well
as Bank Karmachari Sangh's case (supra) and thereafter has adverted to the
judgment in Punjab National Bank Ltd 's case (supra), in Delhi Cloth and
General Mills Co.'s case (supra) and in The workmen of M/s. Firestone Tyre
and Rubber Co. of India Pvt. Ltd's case (supra) and concluded in paragraph
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15 thus :-
"In view of the above judgments, the appellant's
contention that the learned Single Judge has erred in
holding that the management can adduce evidence
before the Labour Court must be rejected. Reliance
placed by the appellant on the judgments of this Court
which take a contrary view is wholly misplaced. We
concur with the learned Single Judge that even in a
case where no inquiry was held prior to dismissal of the
employee, the employer's right to justify the action by
leading necessary evidence in support of such action for
the first time before the Labour Court remains
unaffected."
The Division Bench has therefore upheld the preposition that even in a case
where no inquiry was held prior to dismissal of the employee, the employer's
right to justify the action by leading necessary evidence remains unaffected. In
the light of the pronouncement of the Division Bench in Vajidali T Kadri's case
(supra) it would make little difference even if a charge-sheet was not served
upon the Complainants and the employer i.e. the State Khadi Board would be
entitled to lead evidence and it is for the Labour Court to record a finding as to
whether the misconduct is proved on the basis of the said evidence which is
adduced on behalf of the employer i.e. the State Khadi Board. That having not
been done by the Labour Court and the same being affirmed by the Industrial
Court, the judgments and orders dated 28/03/2011 passed by the Labour
Court Complaint ULP No.175 of 2011 and Complaint ULP No.174 of 2011, and
the judgments and orders dated 04/07/2016 passed by the Industrial Court in
Revision Application (ULP) No.42 of 2016 and Revision Application (ULP)
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No.41 of 2016 would have to be quashed and set aside and are accordingly
quashed and set aside and the Complaints in question are remanded back to
the Labour Court for a de-novo consideration on the touchstone of the
observations made in the instant order. Needless to state that the contentions
of the parties as regards whether the misconduct is proved or not on the basis
of the evidence which is adduced on behalf of the State Khadi Board are kept
open for being agitated before the Labour Court. The Labour Court would now
venture to decide as to whether the State Khadi Board has proved the
misconduct before it and record findings accordingly. The Writ Petitions filed
by the State Khadi Board being Writ Petition Nos.9120 of 2016 and 9121 of
2016 are allowed to the aforesaid extent and the Rule in the said Writ Petitions
is accordingly made absolute. In view of the fact that the judgments and orders
passed by the Labour Court and the Industrial Court are set aside. The Rule in
the Petitions filed by the Complainants to accordingly stand disposed of. On
remand the hearing of the Complaints in question is expedited.
[R.M.SAVANT, J]
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