Bombay High Court
Manager Of Central Workshop vs Ashok Sambhaji Phalake on 21 June, 2016
Bench: P.R. Bora
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WRIT PETITION.3207.1995.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 3207 OF 1995
The Manager,
Central Workshop,
Maharashtra State Road
Transport Corporation,
Aurangabad. ... PETITIONER
ig (Ori. First Party / Employer)
V E R S U S
Ashok Sambhaji Phalke,
Age major, Occu. Ex-employee as
helper of Corporation,
R/o. At Po: Asegaon, Tal. Gangapur,
District Aurangabad. ... RESPONDENT
(Ori. Second Party / Employee)
...
Mr. M. K. Goyanka, Advocate for Petitioner.
Mr. Rajaram B. Mule, Advocate for Respondent.
...
CORAM : P. R. BORA, J.
Date of reserving the judgment : 15th June, 2016.
Date of pronouncing the judgment : 21st June, 2016.
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WRIT PETITION.3207.1995.odt
JUDGMENT:
. The present petition has been filed against the judgment
and award dated 2nd February, 1995 passed by the Labour Court at
Aurangabad in Reference (IDA) No.128 of 1990 whereby the present
Petitioner was directed to reinstate the present Respondent with
continuity of service and back-wages from 7th September, 1990.
2 Facts relevant for decision of the present petition are thus:
Respondent was working as a Helper with the
Petitioner from the year 1987. In the year 1988, he was served with a
charge-sheet containing an allegation that he remained absent from
duty from 28th October, 1988 upto 9th January, 1989 without giving any
prior intimation or application for leave and thus has caused adverse
effect on the working of the Petitioner. In the Departmental Enquiry
held against the Respondent, he was held guilty and punishment of
dismissal from service was imposed on him. Respondent challenged
the said order of dismissal by raising a dispute before the Deputy
Commissioner of Labour, Aurangabad, whereupon the Deputy
Commissioner of Labour, Aurangabad made a reference under
WRIT PETITION.3207.1995.odt
Sections 10 and 12 of the Industrial Disputes Act to the Labour Court,
Aurangabad.
3 It was the contention of the present Petitioner before the
Labour Court that a proper Domestic Enquiry was conducted against
the Respondent and since he was found guilty of the charges leveled
against him in the said Departmental Enquiry, punishment of
dismissal from service was imposed on him. It was the further
contention of the Petitioner that in case the Court comes to the
conclusion that the enquiry held against the Respondent was illegal,
an opportunity may be given to the Petitioner to lead evidence before
the Court to prove the charges leveled against the Respondent. As
against it, it was contended by Respondent that the enquiry shown to
have been conducted against him was in fact a farce of an enquiry. It
was further contended by him that during the relevant period, he was
lodged in a prison in one criminal case against him for an offence
under Section 302 of the Indian Penal Code. It was his further
contention that the entire enquiry was conducted against him when he
was so lodged in jail and thus, the enquiry conducted against him was
an ex-parte enquiry without giving any opportunity of hearing to him.
WRIT PETITION.3207.1995.odt
4 The learned Labour Court after assessing the oral and
documentary evidence brought before it, allowed the reference and
directed reinstatement of present Respondent in service with
continuity and back-wages from 7th September, 1990. Aggrieved by
the same, the Petitioner has preferred the present petition.
5 Shri M. K. Goyanka, learned counsel appearing for the
Petitioner submitted that the impugned judgment and award is liable
to be set aside on the count alone that no opportunity was given to
the Petitioner to prove the charges leveled against the Respondent by
adducing evidence before the said Court after the Court had recorded
a finding that the Domestic Enquiry against the second party i.e.
present Respondent was not fair and proper and that the findings
recorded against the Respondent in the said Domestic Enquiry were
perverse. The learned counsel further submitted that in fact the
learned Labour Court must have decided the issue of legality of
Departmental Enquiry first as a preliminary issue. The learned
counsel further argued that in the written statement filed by the
Petitioner before the Labour Court, a specific prayer was made that if
the Court comes to the conclusion that the enquiry held against the
Respondent was illegal, the first party i.e. Corporation may be allowed
WRIT PETITION.3207.1995.odt
to lead the evidence to prove the charges leveled against the
Respondent. The learned counsel submitted that in such
circumstances, if the Labour Court had reached to the conclusion that
the enquiry held against the Respondent was illegal, the Petitioner
must have been given an opportunity to prove the charges against
Respondent by adducing evidence before the Labour Court. The
learned counsel submitted that bypassing the settled procedure, the
Labour Court in one stroke has branded findings of the Enquiry Officer
as perverse and without giving any opportunity to the Petitioner to
lead evidence so as to prove the misconduct of the Respondent, has
delivered its final judgment. The learned counsel therefore, prayed for
setting aside the impugned judgment and award and to remit back the
matter to the Labour Court with a direction to allow the Petitioner to
adduce necessary evidence to prove the charges leveled against the
Respondent in the charge-sheet served upon him. In support of his
argument, the learned counsel placed reliance on the judgment of this
Court in the case of Maharashtra State Co-operative Cotton
Growers Marketing Federation Ltd. and another Vs. Vasant
Ambadas Deshpande, reported in, [ 2014 (3) Mh. L. J. 339 ].
WRIT PETITION.3207.1995.odt
6 Shri R. B. Mule, learned counsel appearing for the
Respondent supported the impugned judgment. The learned counsel
submitted that since at no stage principles of natural justice were
followed and not only that charge-sheet was served upon the
Respondent when he was lodged in the prison, but the entire enquiry
was conducted in his absence when he was in jail. The learned
counsel submitted that the only charge against the Respondent was
that he remained absent from duty since 28 th October, 1988 upto 9th
January, 1989 without giving any prior intimation or application for
leave and thus caused adverse effect on the working of the Petitioner.
The learned counsel submitted that the reason because of which
Respondent could not attend his duties was beyond his control. The
learned counsel further submitted that in the above circumstances,
the Respondent could not have been held guilty for the charge leveled
against him. The learned counsel submitted that the finding recorded
by the Disciplinary Authority was apparently perverse and has been
rightly set aside by the Labour Court. The learned counsel further
submitted that having regard to the facts involved in the present case,
there was no necessity of giving any opportunity to the Petitioner to
adduce any evidence to prove the charges leveled against the
WRIT PETITION.3207.1995.odt
Respondent. The learned counsel therefore, prayed for dismissal of
the petition.
7 I have carefully considered the submissions advanced by
the learned counsel appearing for the respective parties. I have
perused the impugned judgment and the material placed on record by
the parties. It is true that the Labour Court has not decided the issue
as regards to fairness and legality of Domestic Enquiry conducted
against the Respondent as a preliminary issue. The Labour Court has
decided all the issues simultaneously and in one stroke. It is also true
that the Petitioner in its written statement filed before the Labour Court
has prayed for an opportunity to lead evidence to prove the charges
leveled against the Respondent in case it is held that the Domestic
Enquiry conducted against the Respondent was illegal. Admittedly,
such procedure has not been followed by the learned Labour Court.
As has been observed by this Court in the case of Maharashtra State
Co-operative Cotton Growers Marketing Federation Ltd. and another
Vs. Vasant Ambadas Deshpande (supra), it is the settled procedure
that if the Departmental Enquiry is set aside holding the same to be
illegal or not in conformity with the law, the employer has to be given
an opportunity to prove the charges leveled by him against the
WRIT PETITION.3207.1995.odt
employee by leading necessary evidence before the Court.
8 In the instant matter, though the Labour Court has
recorded a finding that the enquiry held against the Respondent was
illegal, has admittedly not given an opportunity to the Petitioner to
lead evidence to prove the charges leveled against the Respondent
though it was specifically prayed for by the Petitioner. However, after
having carefully considered the facts involved in the present case, I do
not see any substance in the contention raised on behalf of the
Petitioner that the impugned judgment needs to be set aside on the
aforesaid count alone and the matter needs to be remitted back to the
Labour Court with a direction to allow the Petitioner to adduce
necessary evidence to prove the charges leveled against the
Respondent.
9 The only charge against the Respondent was that he
remained absent from duty from 28th October, 1988 upto 9th January,
1989 without giving any prior intimation or application for leave and
thus caused adverse effect on the working of the Petitioner. From the
material on record, it is quite clear that during the aforesaid entire
period i.e. from 28th October, 1988 upto 9th January, 1989, the
WRIT PETITION.3207.1995.odt
Respondent was in jail in a criminal case (Sessions Case No.65 of
1989) against him for an offence under Section 302 of the Indian
Penal Code. The material on record further shows that initially
offence was registered against the Respondent under Section 307 of
the Indian Penal Code alleging that he poured kerosene on the
person of his wife and set her on fire. In the said offence, he was
arrested on 29th October, 1988 and was lodged in jail after he was
remanded to magisterial custody. In the meanwhile, his wife
succumbed to burn injuries and consequently the offence under
Section 307 registered against the Respondent was converted into an
offence under Section 302 of the Indian Penal Code. The material on
record further shows that the Respondent was lodged in Central Jail
at Harsool upto 20th July, 1989. The material on record further shows
that the charge-sheet on the basis of which Domestic Enquiry is said
to have been conducted against the Respondent was served on him
on 13th January, 1989 in the Central Jail at Harsool. The material on
record further shows that from the jail itself, the Respondent replied
the said charge-sheet on 19th January, 1989. The material on record
further shows that the Enquiry Officer concluded the enquiry against
the Respondent and based on the findings so recorded by the Enquiry
WRIT PETITION.3207.1995.odt
Officer, punishment of dismissal from service was imposed on the
Respondent vide order passed by the competent authority of
Petitioner on 28th February, 1989. It is thus quite evident that during
the period in which the Domestic Enquiry was conducted against him
and the punishment of dismissal from service was imposed on him,
Respondent was in Central Jail at Harsool in a criminal case
registered against him under Section 302 of the Indian Penal Code.
From the facts as aforesaid, it is discernible that the
Respondent had not remained absent from duty voluntarily but for the
reasons beyond his control. Since an offence under Section 307,
which was subsequently converted into an offence under Section 302
of the Indian Penal Code, was registered against the Respondent, he
was arrested in the said offence on 29 th October, 1988 and since then
he was in jail upto 20th July, 1989. It is not disputed that during the
entire aforesaid period, Respondent was in the Central Jail at Harsool.
11 It was sought to be canvassed by the learned counsel
appearing for the Petitioner that the Respondent ought to have
informed to the Petitioner about his arrest in the criminal case filed
against him and since no such information was provided by the
WRIT PETITION.3207.1995.odt
Respondent, no fault can be attributed on the part of the Petitioner for
holding the enquiry against the Respondent on the charge of
absenteeism. The submission so made is liable to be rejected at the
threshold in view of the material on record. When the charge-sheet
was served on the Respondent in the jail itself in fact sufficient
information can be said to have reached to the Petitioner about the
date of arrest of Respondent and the cause for his arrest. Moreover,
as has been observed by the learned Labour Court, the Security
Officer of the Petitioner had on 3rd December, 1988 submitted
confidential report to the Manager of the Petitioner informing that the
Respondent was in jail in connection with an offence registered
against him under Section 307 subsequently converted into 302 of the
Indian Penal Code. The report submitted by the Security Officer is the
part of the enquiry papers pertaining to the Departmental Enquiry held
against the Respondent. It is thus evident that on 3rd December, 1988
the Petitioner was in knowledge of the fact that the Respondent has
been arrested by the Police in connection with an offence registered
against him and is lodged in the Central Jail at Harsool. In spite of
having knowledge of the aforesaid fact, charge-sheet came to be
issued against the Respondent and the same was served on him on
WRIT PETITION.3207.1995.odt
13th January, 1989 in the Central Jail at Harsool.
12 In the premise of the fact as aforesaid, the Labour Court
has held that the Domestic Enquiry held against the Respondent was
not fair and proper and further that the findings recorded by the
Enquiry Officer are perverse.
13 The further question arises, whether in the peculiar
circumstances of the present case, was it necessary for the Labour
Court to give an opportunity to the Petitioner to lead evidence before it
to prove the charges against the Respondent. After having
considered the entire material on record, it does not appear to me that
any such opportunity was necessary to be given to the Petitioner. As
mentioned earlier, the only charge against the Respondent was his
absence during the period from 28th October, 1988 upto 9th January,
1989. The Respondent himself has admitted that he was absent
during the said period. Thus, nothing was to be proved in that regard.
14 Facts on record are so glaring that nothing more is
required to hold that the Departmental Enquiry conducted against the
Respondent was not fair and proper and that the finding recorded by
WRIT PETITION.3207.1995.odt
the Enquiry Officer in the aforesaid enquiry is perverse. The
Petitioner, undisputedly had the knowledge of the confidential report
submitted by its Security Officer on 3rd December, 1988 informing that
the Respondent was lodged in Harsool jail because of a criminal case
instituted against him. In spite of that, a charge-sheet was prepared
alleging that he was absent from duty without giving any prior
intimation or application for leave. As mentioned earlier, charge-sheet
was served upon the Respondent while he was lodged in Harsool jail
and having full knowledge that the Respondent is not released from
jail, in his absence enquiry was conducted against him. In no case,
such an enquiry can be held to be fair. This fact has been precisely
noted by the learned Labour Court in clear words that though the first
partly i.e. present Petitioner was having knowledge of arrest of second
party i.e. the present Respondent, the Petitioner issued notice for
appearance of the Respondent in the enquiry and subsequently
conducted enquiry ex-parte in absence of the Respondent. The
violation of the principles of natural justice is thus apparent on the
face of record. Such an enquiry cannot be said to be an enquiry and
consequently, the finding arrived at by the Enquiry Officer in such an
enquiry, can only be said to be perverse.
WRIT PETITION.3207.1995.odt
15 From the discussion made above, it is quite clear that,
nothing was required to be proved by the Petitioner requiring an
opportunity to lead evidence before the Labour Court. The fact that,
the respondent was absent from duty from 28.10.1988 upto
09.01.1989, without giving any prior intimation, or application for leave
was not disputed by the Respondent and as such was not required to
be proved by the Petitioner. The question was whether the petitioner
had remained absent voluntarily and without any valid reason. The
answer is 'no'. Since a criminal case was filed against the
respondent and he was arrested and lodged in the prison, it was
impossible for him to attend the duties. The reason for which the
respondent remained absent in the relevant period was beyond his
control and as such no blame can be attributed on his part and no
charge of absenteeism could have been leveled against him. A
person can be charged on the allegation of absenteeism if the
absence of the said person is voluntarily, without any cogent and
sufficient reason and without any prior intimation or application for
leave. In the instant matter, no prior intimation could have been
given by the Respondent in respect of his alleged absence since he
himself was not knowing that any such incident giving rise for a
WRIT PETITION.3207.1995.odt
criminal prosecution against him would occur and that he will be
arrested in the said case. Neither the respondent could have applied
for leave on the ground that he is in jail because of a criminal case
registered against him. At the most, it can be said that either the
respondent or any of his relative should have intimated the petitioner
about the arrest of the respondent. However, no weightage can be
attached to the fact that the respondent did not intimate about his
arrest, in view of the fact that before issuance of the charge-sheet, the
Security Officer of the petitioner had furnished an information to the
competent authority that the respondent was lodged in jail in a
criminal case registered against him. In the circumstances, no
charge of absenteeism could have been raised against the
Respondent. The Petitioner, however, not only issued a charge-
sheet in that regard to the Respondent but knowing well that the
respondent may not be able to attend the enquiry proceedings
conducted and concluded the departmental enquiry in his absence
when he was imprisoned. The enquiry conducted against the
Respondent was, thus, per se illegal. The trial Court has, therefore,
rightly set aside the said enquiry by holding it to be not fair and proper
and branding the finding recorded in the said enquiry to be perverse.
WRIT PETITION.3207.1995.odt
For the reasons recorded above, it also does not appear to me that
any opportunity was required to be given to the petitioner to adduce
evidence before the Labour Court in order to prove the misconduct
alleged against the Respondent.
16 The Labour Court has not committed any error in setting
aside the punishment of dismissal and consequently directing
reinstatement of the Respondent. Similarly, for the reasons discussed
above, no fault can be found with the impugned judgment and award
on the ground that the Labour Court did not give an opportunity to the
Petitioner to lead evidence in order to prove the charges against the
Respondent.
17 Ordinarily the employer must be allowed to prove the
charges raised against an employee by adducing necessary evidence
before the Court, in the event the enquiry conducted against the said
employee is vitiated by the Court on any count. However, such
permission cannot be granted as a rule of thumb merely on asking
such permission by the employer. In certain matters alike the present
one, to grant such an opportunity may be proved to be a futile
exercise. Whether any such case is made out by the employer so as
WRIT PETITION.3207.1995.odt
to permit him to adduce evidence before the Court to enable him to
prove the charges leveld against an employee, would depend upon
facts and circumstances of that particular case. If, from the material
on record it is noticed by the Court that, no evidence is required to be
adduced by the employer and giving such an opportunity will be an
exercise in futility, the Court may refuse such permission.
18 It was sought to be canvassed by the learned counsel
appearing for the Petitioner that even if the order of reinstatement is
maintained by this Court, in no case the order passed by the Labour
Court granting full back-wages to the Respondent from 7th September,
1990 can be sustained and atleast to that extent the writ petition may
be allowed and the order passed by the Labour Court so far as it
relates to grant of back-wages may be quashed and set aside, in view
of the fact that in the relevant period, the Respondent has admittedly
not rendered services. This submission also must be rejected in view
of the finding recorded by the Court below as well as by this Court
that the action of Management was wholly arbitrary and vitiated due to
violation of rules of natural justice. Having regard to the fact involved
in the present case, denial of back-wages would amount to indirectly
punishing the Respondent and rewarding the Petitioner by relieving it
WRIT PETITION.3207.1995.odt
of the obligation to pay the back-wages.
19 The Honourable Apex Court in the case of Deepali
Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya
((D.ED) and others, reported in, [(2013) 10 Supreme Court Cases
324 ] has observed thus:
"The very idea of restoring an employee to the position
which he held before dismissal or removal or
termination of service implies that the employee will be
put in the same position in which he would have been
but for the illegal action taken by the employer. The
injury suffered by a person, who is dismissed or
removed or is otherwise terminated from service cannot
easily be measured in terms of money. With the
passing of an order which has the effect of severing the
employer-employee relationship, the latter's source of
income gets dried up. Not only the employee
concerned, but his entire family suffers grave
adversities. They are deprived of the source of
sustenance. The children are deprived of nutritious
food and all opportunities of education and
advancement in life. At times, the family has to borrow
from the relatives and other acquaintance to avoid
starvation. These sufferings continue till the competent
adjudicatory forum decides on the legality of the action
taken by the employer. The reinstatement of such an
WRIT PETITION.3207.1995.odt
employee, which is preceded by a finding of the
competent judicial / quasi-judicial body or Court that the
action taken by the employer is ultra vires the relevant
statutory provisions or the principles of natural justice,
entitles the employee to claim full back wages. If the
employer wants to deny back wages to the employee or
contest his entitlement to get consequential benefits,
then it is for him/her to specifically plead and prove that
during the intervening period the employee was
gainfully employed and was getting the same
emoluments. The denial of back wages to an
employee, who has suffered due to an illegal act of the
employer would amount to indirectly punishing the
employee concerned and rewarding the employer by
relieving him of the obligation to pay back wages
including the emoluments."
20 In the instant case also, the specific contention was raised
by the Respondent before the Labour Court that he is not gainfully
employed anywhere. The fact so stated by the Respondent has not
been controverted by the Petitioner. In the aforesaid circumstances
and more particularly in view of the law laid down as above by the
Honourable Apex Court, I do not see any reason to cause any
interference in the order passed by the Labour Court awarding
reinstatement and back-wages with effect from 7th September, 1990.
WRIT PETITION.3207.1995.odt
The writ petition is devoid of any substance. Hence the following
order -
O R D E R
The Writ Petition is dismissed with costs. Rule discharged.
ig [ P. R. BORA, J. ]
ndm
