Bombay High Court
Beed District Central ... vs Jagannath Sitaram Shahane & Ors on 14 December, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4478 OF 1995
Beed District Central Cooperative
Bank Limited, Beed.
Through its General Manager.
...PETITIONER
-VERSUS-
1 Jagannath s/o Sitaram Shahane,
Age : 51 years,
R/o Ganesh Nagar, Near S.P. Office,
Beed, District Beed.
2 Judge, Labour Court and
Authority under MRTU &
PULP Act, Aurangabad.
3 Member, Industrial Court,
Aurangabad, District Aurangabad.
...RESPONDENTS
...
Advocate for Petitioner : Shri Vinayak Upadhye.
Advocate for Respondent 1 : Shri S.S.Thombre a/w Shri Shrikrishna
Solanke.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 14th December, 2016
Oral Judgment :
1 Both the learned Advocates for the respective sides submit, on
instructions, that they have no objection if this Court decides this petition.
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2 Respondent Nos.2 and 3 being the Labour Court and
Industrial Court, stand deleted from these proceedings.
3 The Petitioner / Bank is aggrieved by the judgment and order
dated 11.11.1994 delivered by the Labour Court by which Complaint
(ULP) No.100/1983 filed by Respondent/ Employee has been allowed and
he has been granted reinstatement with continuity and back wages for the
period from 14.09.1983 till 17.12.1983. The Petitioner is also aggrieved
by the judgment of the Industrial Court dated 21.06.1995 by which
Revision (ULP) No.84/1994 filed by the Respondent / Employee has been
allowed and he has been granted full back wages, whereas Revision (ULP)
No.7/1995 filed by the Petitioner/ Bank has been dismissed.
4 This Writ Petition was admitted on 19.10.1995 and the
following order was passed:-
"1. Heard Shri A.H.Joshi, learned Advocate for the
Petitioner and Shri Babu Marlapalle with Shri
R.M.Borde, learned Advocates for the Respondent
No.1. Respondent Nos.2 and 3 are only formal
parties. The learned Advocates for the Respondent
No.1 waive notice.
2. Rule.
3. The Respondent No.1 is hereby directed to remain
present in the office of the Petitioner tomorrow i.e. on
20th October, 1995 at 12:00 noon and shall see
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Mr.K.S.Sirsath, who is the General Manager.
Immediately, Mr.Sirsath shall handover the order of
posting to the Respondent and Respondent shall
accept the same and shall join the post on the next
day i.e. on 21st October, 1995.
4. It is not open for Respondent to make any grievance
in respect of the appointment even today.
5. In respect of the payment of back wages, this point be
kept open at this stage. Respondent is directed to file
an affidavit in detail as to whether, he was in service
at any time during the period of his unemployment.
He shall file the affidavit within one month from
today and a copy of the same shall be given to the
learned Advocate for the Petitioner, who in turn will
give reply to the same within two weeks.
S.O. to 07th December, 1995."
5 I have considered the strenuous submissions of the learned
Advocates at length.
6 The undisputed factors can be summarized as under:-
(a) The Respondent was working as a Sub-Accountant in the
Petitioner Bank.
(b) He was absent due to sickness for the periods 14.12.1981 to
28.12.1981, 11.01.1982 to 25.01.1982 and 27.01.1982 to
31.01.1982.
(c) He was again absent on the ground of sickness from
19.06.1982 till 28.07.1982.
(d) The charge sheet was issued on 15.09.1982 for habitual
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absenteeism.
(e) The departmental enquiry was conducted.
(f) By Enquiry Officer's report dated 03.08.1983 he was held
guilty of the misconduct of unauthorized absenteeism.
(g) The order of dismissal dated 14.09.1983 by way of
punishment on the basis of the Staff Committee Resolution
dated 30.08.1983, was issued.
(h) The Respondent preferred Complaint (ULP) No.100/1983.
(i) By the judgment dated 11.11.1994, the Labour Court allowed
the complaint and directed the reinstatement of the
Respondent with continuity and back wages only for the
period from 14.09.1983 till 17.12.1983.
(j) By judgment dated 21.06.1995, the Industrial Court allowed
Revision (ULP) No.84/1994 filed by the Respondent and
granted full back wages and dismissed Revision (ULP)
No.7/1995 filed by the Petitioner/ Bank.
7 It is apparent that the Respondent had challenged the fairness
of the enquiry and the findings of the Enquiry Officer. By judgment dated
11.11.1994, the Labour Court concluded that the findings of the Enquiry
Officer are perverse and the enquiry stands vitiated. It is undisputed that
the following two issues are required to be dealt with peremptorily in the
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light of the judgment of the Honourable Supreme Court in the matter of
Workmen of the Motipur Sugar Factory Pvt.Ltd. Vs. The Motipur Sugar
Factory, AIR 1965 SC 1803 :-
(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?
8 It is settled law, in the light of the judgments delivered by the
Honourable Supreme Court in the matters of (i) Delhi Cloth and General
Mills Company Limited v/s Ludh Budh Singh, 1972 (1) SCC 595, (ii)
Workmen of M/s Firestone Tyre & Rubber Company of India v/s
Management, AIR 1973 SC 1227 : 1973 SCR (3) 587, (iii) Shambhu Nath
Goyal v/s Bank of Baroda, 1984(4) SCC 491 and (iv) Workmen of
Firestone, Bharat Forge Company Ltd. v/s A.B.Zodge, 1996 (73) FLR
1754 : AIR 1996 SC 1556, that if the enquiry is held to be vitiated for any
reason whatsoever, the Employer needs to be granted an opportunity to
lead fresh evidence and prove the charges before the Labour Court.
9 There is no dispute in between the parties that the enquiry
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papers were produced before the Labour Court and the enquiry was
sought to be vitiated only on the ground of perversity in the findings of
the Enquiry Officer. Since the Labour Court noticed that the Respondent/
Employee was assailing the findings of the Enquiry Officer, it concluded in
paragraph 11 that the findings of the Enquiry Officer are perverse and
hence, the enquiry stands vitiated. In the same paragraph, the Labour
Court concluded that the Respondent was liable to be reinstated in
service.
10 There is no dispute that the Respondent was reinstated as an
Accountant by order of reinstatement dated 21.10.1995. Thereafter, he
started remaining absent and it is submitted that he was subsequently
disengaged on account of continued absenteeism.
11 This case has taken a curious turn. The Petitioner filed the
additional affidavit dated 04.12.1995 bringing on record the documents
indicating that the Respondent had submitted the application form to the
Maharashtra State Cooperative Sugar Factories Federation for being
empaneled as a Managing Director. The said application was submitted by
the Respondent by affixing his photograph and by signing upon the said
form dated 25.10.1990. On page 3 of the form, he has stated that he was
working as an Accountant, Agent, Inspector, Senior Inspector and Deputy
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Chief Officer with the Petitioner Bank from 1962 to 1982. He had left the
services of the Petitioner Bank for better prospectus and better future. It is
also stated that he is working with Shri Gajanan Cooperative Sugar
Factory Limited as an Administrative Officer from 1983 onwards till the
date of the filing of the application form. This application was supported
by the certificate issued by the Managing Director of Shri Gajanan
Cooperative Sugar Factory Limited dated 20.10.1990 indicating that the
Respondent was in their employment from 27.12.1983 as an
Administrative Officer, Head of the Department of General Administration.
12 There is no dispute that after this affidavit was filed by the
Petitioner on 04.12.1995, the Respondent did not file any affidavit
challenging or controverting the said submissions.
13 There are even further developments in this matter. The
Respondent submits that he was paid back wages pursuant to the
directions of the Labour Court/ Industrial Court. He was also reinstated.
After he left employment, he has been paid his gratuity by the Petitioner.
14 At this juncture, the learned Advocate for the Respondent/
Employee submits that considering his age and failing health, no purpose
would be served by remanding the matter back to the Labour Court for
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conducting a de-novo enquiry pursuant to the charge sheet dated
15.09.1982. It is further requested that as the back wages have already
been paid by the Petitioner and the gratuity has also been paid by the
Petitioner, this Court may refrain from directing the recovery of back
wages and gratuity.
15 In the light of the above, though the Labour Court has
committed a serious procedural error in setting aside the enquiry by
branding the findings of the Enquiry Officer as perverse and allowing the
complaint in the same judgment, I do not find any purpose would be
served by remitting the matter back to the Labour Court keeping in view
the subsequent events as recorded above and the fact that the Respondent
is now about 72 years old and in failing health. Even if a de-novo enquiry
is to be ordered, the matter will have to be relegated back to the charge
sheet of a long unauthorized absenteeism of 1982, which is practically 34
years ago.
16 Considering the peculiar facts as recorded above and the fact
that no purpose would be served by remitting the matter to the Labour
Court for following the lawful procedure in the light of the judgments of
the Honourable Supreme Court, I deem it proper to dispose of this Writ
Petition by observing that since the Respondent was engaged in another
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factory from December, 1983 onwards and has retired from employment
after becoming the Managing Director, he shall not be entitled for any
other benefits pursuant to the impugned judgments. So also, the back
wages paid and gratuity paid to him, shall not be recovered from him by
the Petitioner.
17 In the light of the above, this Writ Petition is partly allowed.
The impugned judgments of the Labour Court and the Industrial Court
stand modified by observing that the back wages paid to the Respondent/
Employee and the gratuity amount paid to him shall not be recovered
from him. Since the Respondent has been in employment with another
factory from 27.12.1983, having also been appointed as Managing
Director of the said factory and having retired from the same, he shall not
be entitled to claim any benefits of service from the Petitioner after
27.12.1983.
18 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
