Maharashtra State Road Transport ... vs Shri.Vitthal Dadu Patil
2017 Latest Caselaw 971 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION
                          WRIT PETITION NO.1930 OF 2001


Maharashtra State Road Transport Corporation.]                         ... Petitioner

            Versus

Shri Vitthal Dadu Patil.                                      ]        ... Respondent


Mr. G. S. Hegde for Petitioner.
None for Respondent.


                                   CORAM :- G. S. KULKARNI, J.

RESERVED ON : 08 MARCH 2017 PRONOUNCED ON :- 23 MARCH 2017

JUDGMENT :-

1. By this petition under Articles 226 and 227 of Constitution of India, the petitioner challenges the Judgment and Order dated 02/02/2001 passed by the Industrial Court, Kolhapur, in Revision Application (ULP) No.32 of 2000. By the impugned Judgment, the learned Member of the Industrial Court has allowed the Revision Application filed by respondent - employee in the following terms :-

"i) The Revision Application is partly allowed.

ii) Judgment and order in Complaint (ULP) No.346/97 passed by the Labour Court, dismissing the complaint is set-aside.

      iii)    The complaint is partly allowed.
      iv)     It is declared that the Respondent has indulged in unfair

labour practice under item 1(a) (b) of Such. IV of the MRTU & PULP Act, 1971 and directed to cease and desist from engaging in such unfair labour practices, in future.

v) The Respondent is directed to reinstate the complainant to his original post with continuity of service with 50% back

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wages from 22-11-1997, till to-day, within one month from today.

vi) No order as to costs."

2. In nutshell, the facts are as under :-

Respondent was working as a Clerk with the petitioner from the year 1990. On 27/09/1998, the respondent came to be suspended on the allegations of indiscipline, use of arrogant and abusive words while on duty and making false allegations against the higher officers. Thereafter, the respondent was served with a charge-sheet dated 19/03/1997. An enquiry was conducted with due notice to the respondent. The respondent failed to appear and participate in the enquiry proceedings. The Enquiry Officer came to a conclusion that the charges leveled against the respondent are proved. A show-cause notice came to be issued to the respondent as to why the respondent should not be terminated, which came to be replied by the respondent. Considering the defence of the respondent, the petitioner dismissed the respondent from services by an order dated 22/11/1992.

3. The respondent, in the above circumstances, approached the Labour Court by filing Complaint (ULP) No.346 of 1997 alleging unfair labour practice at the hands of the petitioner under Items (a) and

(b) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, 'said Act'). The contention of the respondent before the Labour Court was that there was a farce of enquiry. That the witnesses deposed falsely against him on the pressure of the management. The principles of natural justice were not followed. The witnesses ought not to have been believed and that his past service was clean and unblemished and therefore he ought to have been reinstated in services with all

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consequential benefits.

4. The petitioner appeared before the Labour Court and filed written statement denying the allegations of the respondent. The petitioner pointed out that the respondent failed to appear in the enquiry though served with a notice. The witnesses examined on behalf of the management had deposed against the respondent and their evidence has remained unchallenged. It was contended that ample opportunity was given to the respondent to put his case and also cross- examine the management witnesses but the respondent did not avail of the said opportunity. There was, thus, no breach of the principles of natural justice. It was further contended that the charges against the respondent were duly proved and considering the seriousness of the misconduct, the punishment of dismissal was legal and proper.

5. The learned Judge of the Labour Court, considering the evidence on record, held that the charges against the respondent stood proved. It was also held that the principles of natural justice were followed by the Enquiry Officer and that the respondent had failed to appear in the enquiry proceedings. It was also observed that the management witnesses had deposed about the misconduct. It was thus held that the punishment of dismissal was not shockingly disproportionate and accordingly dismissed the complaint of the respondent.

6. In the revision filed by the respondent against the Judgment of the Labour Court, although the learned Member of the Industrial Court held that the charges against the respondent stood proved as also observed that the enquiry was fair and proper and the findings were not

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perverse, however held that nonetheless, the revision was required to be allowed on the ground that the Labour Court had not considered that the previous misconducts of the respondent were not very serious or that the respondent had not made similar allegations against the superior officers in the past. Considering the circumstances to be peculiar, the Industrial Court held that the punishment of dismissal was disproportionate and that an opportunity to the respondent to improve himself ought to have been given and more particularly because the respondent is an ex-serviceman. The Industrial Court, in the circumstances, thought it appropriate that though punishment is required to be awarded, it needs to be substituted with a lesser punishment namely withholding 50% back wages from the date of dismissal, till the date of judgment, which, according to the Industrial Court, would be the proper punishment. The Industrial Court, thus, held that the initial punishment awarded and confirmed by the Labour Court was disproportionate as the same was awarded without considering the past record while allowing the Revision Application.

7. I have heard the learned Counsel for petitioner. However, neither the respondent nor Advocate for respondent have remained present. Even on the earlier occasions namely on 21/06/2012, 01/10/2015 and 07/03/2017, the respondent had remained absent. The name of the respondent and his Advocate are correctly displayed on the cause-list.

8. Learned Counsel for petitioner, in assailing the impugned order passed by the Industrial Court, would submit that the Industrial Court has clearly observed that the enquiry which was held against the respondent was fair and proper. He contends that there was no breach

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of principles of natural justice. He submits that it is also not in dispute, that the charges against the respondent stood proved in the enquiry proceedings and that the charges were serious warranting punishment of termination form services. It is submitted in these clear facts, the learned Member of the Industrial Court ought not to have substituted the finding only on the premise that Labour Court had not taken into consideration the past performance / past conduct of the respondent. Learned Counsel for petitioner submits that only on the ground that the Labour Court has not considered such aspects of past service, the punishment has been held to be disproportionate by the Industrial Court and the same ought not have been substituted by lesser punishment and only withholding of 50% back wages as ordered. Learned Counsel for the petitioner submits that the observations as made by the Industrial Court in the impugned order are completely on surmises and lack basic foundation to grant the impugned relief.

9. Having perused the impugned judgment and the other material placed on record, it is not in dispute that the Labour Court as also the Industrial Court have held that the enquiry was properly conducted and the charges against the respondent stood proved in the enquiry. Further, the Industrial Court has also recorded that 5 persons (witnesses) who had no ill-will or enmity against the respondent, have deposed against the respondent. It is also an admitted position that the respondent failed to participate in the enquiry. Thus, there is a finding of fact of both the forums that the charges against the respondent stood proved. The findings are on the basis of evidence on record in the enquiry proceedings.

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10. If this was the position, then what is required to be considered is whether on the reasoning and more particularly as set out in para 31 of the impugned order, the findings of the Labour Court dismissing the complaint of the respondent could have been displaced by the Industrial Court to be substituted with a lesser punishment. In my opinion, the Industrial Court ought not to have done so. In para 31 of the impugned order, the Industrial Court has proceeded on a strange premise namely that the allegations made against the superior officers which though were of a serious nature, were made for the first time.

11. I may also note another observation as made by the Industrial Tribunal, in granting relief to the respondent. The observation read thus :-

"In the present case, there is nothing on record to show that image of the Divisional Controller was really maligned. "

12. On the above basic premise and observations, the Industrial Court has come to a conclusion that the punishment of termination was disproportionate. In making these observations, in my opinion, the learned Member of the Industrial Court has completely lost sight of the fact that the proceedings before the Industrial Court were not in the nature of defamation proceedings where the ultimate result would be award of damages so as to make the above quoted observations. The case against the Respondent was a clear case of a misconduct on the charges contained in the charge-sheet and which stood proved in the enquiry proceedings. Further, the premise that in the past the misconduct was of a different nature and was not a similar misconduct of making allegations against the superior officers, the quantum of punishment was required to be interfered, also is unacceptable. The

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Courts below no doubt considered the additional factor that in the past, there were misconducts on the part of the respondent the nature of which was different, however as regards the charges as contained in the enquiry proceedings in question, which stood proved, it could not be said that the gravity of the charges was such, that it would not justify termination. For the Court to interfere in the quantum of punishment, the position in law is well-settled. In the present case, there is nothing unconscionable that the quantum of punishment needed to be interfered.

13. In the above facts and circumstances, I do not find that there was any justifiable reason for the Industrial Court to come to a conclusion that the punishment which was awarded to the respondent was disproportionate. The finding as recorded in paragraph nos.31 and 32 of the impugned order forming the basis to direct reinstatement with only a punishment of withholding 50% back wages from 22/11/1997 till the date of Judgment of the Industrial Court, in my opinion, is wholly perverse. There is no justification either on facts or in law for the learned Member of the Industrial Court to come to this conclusion. Accordingly, the petition needs to succeed.

14. The Writ Petition is allowed in terms of prayer clause (a) which reads thus :-

"(a) That this Hon'ble Court be pleased to issue a writ of certiorari or any other appropriate writ, direction or order for quashing and setting aside the Judgment and order dated 2-2-2001 passed by Industrial Court, Kolhapur in Revision Application (ULP) No.32 of 2000."

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15.            There shall be no order as to costs.




                                                (G. S. KULKARNI, J.)




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