Bombay High Court
Jaywant Narayan Joshi vs M.S.R.T.C. & Others on 23 September, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2162 OF 1996
Jayawant Narayan Joshi,
Since deceased,
through his heirs and legal representatives
1. Pramila w/o Jayawant Joshi,
Age-71 years, Occu-Household,
2. Ajay S/o Jayawant Joshi,
Age-40 years, Occu-Service,
Both r/o Parijat, Plot No.121,
Sector-19, Koyana Nagar,
Chikhali Road, Chinchwad,
Pune - 411019
3. Manjusha w/o Prashant Garge,
Age-45 years, Occu-Household,
R/o Pendse Nagar, Galli No.6,
Dombiwali (East),
4. Sneha W/o Abhijeet Kulkarni,
Age-40 years, Occu-Household,
R/o Flat No.18, Anudeep Housing
Society, Kamathwada Road,
Nashik. - PETITIONERS
VERSUS
1. Maharashtra State Road Transport
Corporation,
Through the Divisional Controller,
Dhule,
2. Judge,
Labour Court, Dhule,
3. Member, Industrial Court,
Maharashtra, at Nasik, Nasik. - RESPONDENTS
khs/SEPT.2016/2162-d
Mr.L.V.Sangit h/f Mr.S.V.Dixit, Advocate for the petitioner.
Mr.D.S.Bagul, Advocate for respondent No.1.
Respondent Nos. 2 and 3 are deleted.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 23/09/2016
ORAL JUDGMENT :
1. The petitioner is aggrieved by the judgment and order dated
30/12/1993 by which Revision (ULP) No.12/1993 filed by the
respondent/Corporation was allowed and the order of the Labour
Court dated 08/12/1992, granting reinstatement with continuity of
service and back wages was quashed and set aside.
2. Respondent Nos. 2 and 3 are the Labour Court and Industrial
Court. Both stand deleted from this petition, being formal parties.
3. This petition was admitted on 14/03/1995 and interim relief
was refused.
4. I have heard the learned Advocates for the respective sides at
length.
5. Jaywant Narayan Joshi, the original petitioner has passed away
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and his legal heirs have been brought on record.
6. The deceased petitioner suffered punishment of dismissal from
service on account of a misconduct, which was proved in the enquiry
by the respondent/Corporation under Clause 18 of Annexure-A
comprising of the list of misconducts. The charge of committing an
act amounting to moral turpitude was levelled upon him. He was
charged with having outraged the modesty of a co-employee's wife.
(Names of the co-employee and his wife have been stated in the charge
sheet and have not been reproduced in this judgment.) The act alleged
to have been committed by the deceased petitioner was mentioned in
the charge sheet and after conducting a departmental enquiry, he
was dismissed from service on 19/01/1991.
7. He preferred Complaint (ULP) No.22/1991 before the Labour
Court invoking Item 1 of Schedule IV of the MRTU and PULP Act,
1979. The Labour Court framed 10 issues out of which issue No.4
was as regards "Does the complainant prove, in utter disregard of
principles of natural justice, respondent conducted departmental
enquiry against him ?"
8. It is undisputed that the Labour Court did not try the said
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issue peremptorily despite the fact that the deceased petitioner had
challenged the fairness of the enquiry as well as the findings of the
Enquiry Officer. It is also not disputed that as the Labour Court
concluded that the enquiry is vitiated, it granted reinstatement with
continuity and full back wages to the deceased. Contention of
Mr.Sangit, learned Advocate for the petitioner is that the Labour
Court had rightly arrived at the said conclusion and had correctly
granted reliefs to the deceased.
9. It is settled law in the light of the judgment of the Hon'ble
Supreme Court in the matter of Workmen of Motipur Sugar Factory
Private Ltd.,Vs. The Motipur Sugar Factory Private Limited, AIR 1965
SC 1803 that once the enquiry was challenged, the Labour Court or
the Tribunal has to frame two issues with regard to the fairness of
the enquiry and the fairness of the findings of the Enquiry Officer. In
catena of judgments delivered by the Hon'ble Supreme Court
following Motipur Sugar Factory (supra), these two issues are
required to be decided peremptorily.
10. This Court has held in the matter of Maharashtra State Co-
operative Cotton Growers Marketing Federation Ltd., and another Vs.
Vasant Ambadas Deshpande, 2014(3) Mh.L.J. 339 = 2014(1) CLR 878
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and Maharashtra State Road Transport Corporation, Beed and another
Vs. Syed Saheblal Syed Nijam, 2014(4) Mh.L.J. 687 = 2014 (3) CLR 547
that unless these two issues are decided by way of a part-I judgment,
the Labour Court or the Tribunal cannot proceed with the rest of the
issues. In the light of the above, the judgment of the Labour Court
apparently is rendered unsustainable and deserves to be set aside.
11.
However, Mr.Sangit rightly submits that since the employee has
passed away, even if a de-novo enquiry is to be conducted, no
purpose would be served as the charges will have to be proved by the
respondent/Corporation against the employee. His demise would
handicap the legal heirs from contesting the enquiry. He, therefore,
has prayed that the matter need not be remanded back. He further
submits that the widow of the employee is 76 years old today and his
son is 45 years old.
12. Mr.Sangit, therefore, submits that the other issues raised by
him need to be considered. He contends that the alleged misconduct
is said to have been committed in the house of a co-employee. Same
has not occurred on the premises of the Corporation. Neither the
purported victim nor her husband have deposed in the enquiry. The
enquiry was, therefore, rightly set aside. He, therefore, submits that
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the only issue that needs consideration, in the above backdrop, is as
to whether the act alleged to have been committed by the deceased
could be covered by the Discipline and Appeal Rules /Procedure of
the Corporation.
13. He has placed reliance upon the judgment of the Hon'ble
Supreme Court in the matter of M/s Glaxo Laboratories India Ltd,,
Vs.Presiding Officer, Labour Court, Meerut and others, AIR 1984 SC
505. He draws my attention to paragraph Nos. 13 and 14 of the
Glaxo Laboratories judgment (supra), which read as under :-
"13. After reading clause 10, Mr. Shanti Bhushan contended that
the expression committed within the premises of the
establishment or in the vicinity thereof' can qualify only the
expression `any act subversive of discipline and efficiency and
any act involving moral turpitude' but not the earlier portion of
the clause. Numerous acts of misconduct have been collected in
clause 10 such as drunkenness, fighting, indecent or disorderly
behaviour, use of abusive language, wrongfully interfering with
the work of other employees etc. Says Mr. Shanti Bhushan that
these acts of misconduct are per se misconduct that each one of
them cannot have any correlation to the time or place where it is
committed and each one of it is an act of misconduct irrespective
of the time and place where it is committed. Expanding the
submission, it was urged that drunkenness is such a socially
reprehensible action that if it is committed within the premises of
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the establishment or in the vicinity thereof or anywhere else at
any point of time it would none the less be an act of misconduct
comprehended in clause 10 and punishable under standing
order 23. If this construction were even to be accepted the
employer will have more power than the almighty State because
State chooses to punish drunkenness in public place. But on the
construction canvassed for if a man consumes liquor in 240 his
own house with the doors closed and gets drunk, the employer
can still fire him. If a man uses abusive language towards his
close relation in his own house with closed door, the employer
would be entitled to fire him, and this approach overlooks the
purpose of prescribing conditions of service by a statute. To
enable an employer to peacefully carry on his industrial activity,
the Act confers powers on him to prescribe conditions of service
including enumerating acts of misconduct when committed
within the premises of the establishment. The employer has
hardly any extra territorial jurisdiction. He is not the custodian
of general law and order situation nor the Guru or mentor of his
workmen for their well regulated cultural advancement. If the
power to regulate the behaviour of the workmen outside the duty
hours and at any place wherever they may be was conferred
upon the employer, contract of service may be reduced to
contract of slavery. The employer is entitled to prescribe
conditions of service more or less specifying the acts of
misconduct to be enforced within the premises where the
workmen gather together for rendering service. The employer has
both power and jurisdiction to regulate the behaviour of
workmen within the premises of the establishment, or for
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peacefully carrying the industrial activity in the vicinity of the
establishment. When the broad purpose for conferring power on
the employer to prescribe acts of misconduct that may be
committed by his workmen is kept in view, it is not difficult to
ascertain whether the expression `committed' within the
premises of the establishment or in the vicinity thereof' would
qualify each and every act of misconduct collocated in clause 10
or the last two only, namely, `any act subversive of discipline
and efficiency and any act involving moral turpitude'. To
buttress this conclusion, one illustration would suffice.
Drunkenness even from the point of view of prohibitionist can at
best be said to be an act involving moral turpitude. If the
misconduct alleging drunkenness as an act involving moral
turpitude is charged, it would have to be shown that it was
committed within the premises of the establishment or vicinity
thereof but if the misconduct charged would be drunkenness the
limitation of its being committed within the premises of the
establishment can be disregarded. This makes no sense. And it
may be remembered that the power to prescribe conditions of
service is not unilateral but the workmen have right to object and
to be heard and a statutory authority namely, Certifying Officer
has to certify the same. Therefore, keeping in view the larger
objective sought to be achieved by prescribing conditions of
employment in certified 241 standing orders, the only
construction one can put on clause 10 is that the various acts of
misconduct therein set out would be misconduct for the purpose
of S.O. 22 punishable S.O. 23, if committed within the premises
of the establishment or in the vicinity thereof.
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14. What constitutes establishment or its vicinity would
depend upon the facts and circumstances of each case."
14. I do not find that the ratio laid down in the said judgment
would be of any assistance to the petitioner for the reason that the
Hon'ble Apex Court has concluded that, "what constitutes
establishment or its vicinity would depend upon the facts and
circumstances of each case." In the case in hand, the charge levelled
upon the deceased was that he had left the work place during
working hours and had reached the home of a co-worker in the
neighbourhood. After getting drunk at his place, he had outraged the
modesty of the wife of the co-worker. The husband of the said lady
had lodged a written complaint to the Corporation. Said complaint
was proved in the enquiry. The enquiry has been set aside by the
Labour Court. In the event a de-novo enquiry is to be conducted, this
document can be proved in accordance with Law. However, in the
peculiar facts of the case, a de-novo enquiry is not possible. This
Court, therefore, has to proceed on the available material.
15. It is settled law that hear-say evidence can be appreciated and
the material before the employer can be considered on the
preponderance on the principles of probabilities.
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16. It is most improbable that a lady would sacrifice her respect
and her modesty by making allegations of the nature, which are
found in the instant case. It is equally improbable that the co-worker
would sacrifice his wife's honour and modesty by inciting her to make
such allegations against a co-worker. Based on the preponderance of
the principles of probabilities, the Industrial Court rightly concluded
that the misconduct is proved.
17. The Hon'ble Supreme Court in the matter of Mulchandani
Electrical and Radio Industries Ltd., Vs Workmen, 1975 AIR (SC)
2125 has held that it is immaterial that the misconduct was
committed outside the factory. The act, wherever may be committed,
if has the effect of subverting discipline or good behaviour, and the
effects of such act manifest in the discipline of the establishment, the
model Standing Orders can be invoked for holding disciplinary
proceedings.
18. In the instant case, clause 18 below Annexure-A, which is the
list of misconducts defined under the Discipline and Appeal Rules of
the Corporation, would indicate that the charge of committing an act
which amounts to moral turpitude, could be subjected to a
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departmental enquiry. This Court, in the matter of Automotive
Manufacturers Ltd., Vs. Member, Industrial Court and another,
[2009(5) Mh.L.J. 429] has concluded in similar circumstances that
though the incident took place outside the factory premises, its
consequences manifest in the discipline of the establishment.
19. Mr.Bagul has rightly contended that though the enquiry was
set aside and on the available material, the Labour Court decided the
complaint, it lost sight of the fact that the evidentiary value in service
jurisprudence is distinct and different from criminal proceedings.
When some material was available before the Labour Court, it could
not have granted reinstatement with continuity and full back wages
to the deceased petitioner by ignoring the settled principles under
service jurisprudence. He further submits that no employee would
remain silent or digest the act of a co-employee of outraging the
modesty of his wife in a drunken condition.
20. It is informed that the Provident Fund Accumulations
alongwith interest for an amount of Rs.1,90,352/- have been paid to
the widow of the employee. Gratuity has been forfeited since an act
amounting to moral turpitude has been proved.
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21. In the light of the above, I do not find that the judgment of the
Industrial Court could be termed as being perverse or erroneous or
that the Industrial Court has exercised jurisdiction not vested in it by
Law.
22. As such, this petition, being devoid of merits, is therefore
dismissed. Rule is discharged.
23. Pending civil applications, if any, do not survive, hence stands
disposed of.
( RAVINDRA V. GHUGE, J.)
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