The Divn. Controller M.S.R.T.C. ... vs Kum.Pushpa Ramdas Zatake
2017 Latest Caselaw 4093 Bom

                                                            WP/2129/2000
                                     1

          IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                    WRIT PETITION NO. 2129 OF 2000

 The Divisional Controller,
 Maharashtra State Road
 Transport Corporation,
 Jalgaon Division, Jalgaon.                           ..Petitioner

 Versus

 Kum. Pushpa Ramdas Zatake,
 Age Major, Occ. Service as a
 Clerk (now dismissed), 
 Resident of Indira Chowk,
 Nashirabad, Dist. Jalgaon.                           ..Respondent
                                    ...
               Advocate for Petitioner : Shri. M.K.Goyanka
               Advocate for Respondent : Shri Vijay Patil 
                                    ...
                  CORAM : RAVINDRA V. GHUGE, J.

Dated: July 06, 2017 ...

ORAL JUDGMENT :-

1. This matter was heard on 16.6.2017, 29.6.2017 and

today.

2. The petitioner is aggrieved by the judgment of the Labour

Court dated 26.7.1999, by which, Complaint (ULP) No.44 of

1999, filed by the respondent was partly allowed. The order of

her dismissal from 30.3.1999 was set aside and she was granted

reinstatement with continuity in service. Backwages were

denied.

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3. The petitioner is also aggrieved by the judgment of the

Industrial Court dated 2.2.2000, by which, Revision (ULP)

No.805 of 1999, filed by the petitioner was dismissed.

4. This Court, by order dated 6.6.2000, recorded the

statement of the Corporation that the respondent was reinstated

in service. By order dated 18.10.2001, this petition was

admitted.

5. There is no dispute that the respondent has been

reinstated on 30.3.2000, was promoted as a Sr. Clerk in 2013,

and as Office Superintendent on 1.6.2015. The amount of about

Rs.15,000/-, which was said to be mis-appropriated by the

respondent, has been recovered from her.

6. I have considered the submissions of the learned

Advocates for the respective sides. Shri Patil, learned Advocate

for the respondent has strenuously defended the impugned

judgments. He submits that when the respondent had

approached the Labour Court challenging her dismissal from

service on 13.3.1999, the respondent had filed a joint purshis

along with the petitioner, at Exhibit UC/1, indicating to the

WP/2129/2000

Labour Court that they do not wish to lead any further evidence.

The Labour Court accepted the purshis and in the impugned

judgment concluded that the enquiry was fair and proper but the

findings of the Enquiry Officer are partly perverse and partly

legal.

7. Shri Patil, therefore, submits that the charges held to be

proved against the petitioner are as regards indiscipline and

gross negligence, resulting in serious loss to the Corporation or

in-convenience to the public. Based on the said conclusions, the

respondent has been reinstated.

8. I find from the record that in the first place, both the sides

are guilty of filing a joint purshis, requesting the Labour Court to

decide all the issues together The law on this aspect has been

settled more than 50 years ago in the matter of Workmen of the

Motipur Sugar Factory Private Ltd., Vs. The Motipur Sugar

Factory Private Ltd., [AIR 1965 SCC 1803], and then in the

judgments delivered by the Honourable Apex Court in the

matters of Workmen of Firestone Rubber and Tyre Company Vs.

the Management and others [(1973) 1 SCC 813], Delhi Cloth

and General Mills Company Limited Vs. Ludh Budh Singh -

[1972 (1) SCC 595 = AIR 1972 SC 1031], Shambhu Nath Goyal

WP/2129/2000

Vs. Bank of Baroda [1984 (4) SCC 491 = AIR 1984 SC 289],

and Bharat Forge Company Ltd., Vs. A.B. Zodge and another

[AIR 1996 SC 1556 = 1996 II CLR 345] . It is therefore, trite

that once the workman challenges the fairness of the enquiry and

the findings of the Enquiry Officer, only these two issues have to

be dealt with peremptorily While considering these two issues,

no additional evidence is to be permitted to be recorded by the

Labour Court and these two issues are to be scrutinized strictly

on the basis of the R & P of the domestic enquiry [Maharashtra

State Cotton Growers Federation Vs. Vasant Ambadas Deshpande

2014 (3) Mh.L.J. 339 : 2014 I CLR 878]

- .

9. It is equally trite that if the enquiry is vitiated or if the

findings of the Enquiry Officer are held perverse, it vitiates the

entire enquiry, as is held in Bharat Forge (supra). Once the

findings are held to be perverse, the entire enquiry stands

watered down. The Labour Court has failed to follow this well

settled procedure. Moreover, the petitioner has reserved it's

right to conduct a de novo enquiry in paragraph No. 8 of it's

written statement, dated 24.5.1999, which is in tune with the

law laid down by the Honourable Supreme Court (Five Judges'

Bench) in the matter of KSRTC Vs. Laxmidevamma [2001 II CLR

640 = AIR 2001 SC 2090 = AIR 2001 SCW 1981]. The

WP/2129/2000

petitioner, therefore, should have been given a right to lead

evidence at least to prove those charges, which have been held to

be perverse.

10. I have perused the conclusions of the Labour Court below

paragraph No.7, which run into six pages. Even the conclusion

that the respondent was a new comer and hence she may not

have the intention to mis-appropriate the amount, appears to be

a conclusion based on mis-placed sympathy shown towards the

respondent. The entire analysis of the evidence by the Labour

Court that though the respondent is party to the preparation of

the bills and their payments, it was concluded that she may have

committed mistakes due to oversight as a new comer. These

conclusions of the Labour Court, which are based on

assumptions, would not be sustainable considering the record of

the respondent, even after her reinstatement. She has been

punished in 2000, 2001, 2002 (two occasions) and 2005 (three

occasions). These punishments are with regard to the making

wrong entries of the oil, interfering and obstructing the

administration of the Corporation and with regard to the

distribution of free passes.

11. The Honourable Apex Court in the matter of Janatha

WP/2129/2000

Bazar (South Kanara Central Co-operative Whole Sale Stores

Limited) Etc. Vs. The Secretary, Sahakari Noukarana Sangha Etc.

[2000 AIR SCW 3439 = AIR 2000 SC 3129 = (2000) 7 SCC

517] and the learned Division Bench of this Court in the matter

of P.R.Shele Vs. Union of India and others [2008 (2) Mh.L.J. 33],

have concluded that cases of mis-appropriation are not be

scrutinized by showing sympathy or by considering the amount

of money involved. In this backdrop, I find that the conclusion of

the Labour Court of holding that the findings of the Enquiry

Officer are partly perverse cannot be sustained. The Labour

Court should not have expressed sympathy on the basis of

assumptions, to conclude that the charge of mis-appropriation is

not proved as the respondent was a newcomer and was just two

years in service.

12. The above aspects should have been considered by the

Industrial Court. The Revision Petition has been dismissed again

on a wrong conclusion that 'the charges levelled upon the

respondent are not proved beyond doubt and hence, it cannot be

accepted that the respondent purposely and with dishonest

intention has prepared false bills and caused a loss to the

Corporation by making excess payments to certain individuals'. It

is well settled that in service jurisprudence, charges on the basis

WP/2129/2000

of available evidence are to be scrutinized on the preponderance

on the principles of probabilities The principles applicable to

criminal jurisprudence requiring strict proof and evidence are not

applicable to service jurisprudence.

13. Considering the above, this petition is partly allowed. The

impugned judgments of the Labour Court dated 26.7.1999 and

of the Industrial Court dated 2.2.2000 are quashed and set aside,

being perverse and erroneous.

14. The petitioner has been reinstated in service in March

2000. Considering that she is in employment for the last 17

years, though the restoration of the Complaint (ULP) No. 44 of

1999 to the Labour Court, Jalgaon would technically restore the

order of dismissal, I am not inclined to accept this submission of

the petitioner. As the respondent is in employment for 17 years,

though under fortuitous circumstances, it would be improper to

cause her removal from service at this stage. She shall,

therefore, continue to be in employment and the same would be

subject to the result of the Complaint which is being restored to

the Labour Court.

15. Consequentially, Complaint (ULP) No.44 of 1999 is

WP/2129/2000

restored to the Labour Court, Jalgaon.

16. Learned Advocates for the respective sides request, on

instructions, that the litigating sides would appear before the

Labour Court on 5.8.2017. Request is accepted and they shall

abide by the dates of hearing on which the matter is posted by

the Court. Needless to state, the Labour Court shall first decide

issue Nos.1 and 3, peremptorily, strictly on the basis of the

record and proceedings of the enquiry, keeping in view the law

laid down in the matter of Maharashtra State Co-operative

Cotton Growers Marketing Federation Ltd. & another Vs. Vasant

Ambadas Deshpande [2014 (3) Mh.L.J. 339 : 2014 I CLR 878]. If

the R & P of the enquiry in the original form is not filed before

the Labour Court, the same shall be done within three weeks

from the date of appearance before the Labour Court.

17. In the event, the Labour Court answers issue Nos.1 and/or

3 against the Corporation, which would result in vitiating the

enquiry, the Corporation would be at liberty to conduct a de

novo enquiry in the light of the right reserved in paragraph No.8

of it's written statement. If the enquiry is sustained, the Labour

Court shall then consider the proportionality of the punishment,

keeping in view the crystallized position in law.

WP/2129/2000

18. It is expected that the Labour Court shall decide

Complaint (ULP) No.44 of 1999 as expeditiously as possible and

preferably on/or before 31.3.2018.

19. Rule is made partly absolute in the above terms.

( RAVINDRA V. GHUGE, J. ) ...

akl/d