Bombay High Court
Amcl Machinery Ltd. Through ... vs Prakash S/O Shivdas Waghmare on 12 August, 2021
Bench: Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1334/2020
PETITIONERS : 1. AMCL Machinery Limited
ORIGINAL A-1/1, MIDC Industrial Area, Village
RESPONDENTS Ruikhairi, Butibori, Nagpur - 441122
Through its Managing Director.
2. Sr. General Manager-Technical
AMCL Machinery Limited
A-1/1, MIDC Industrial Area,
Village Ruikhairi, Butibori,
Nagpur - 441122.
...VERSUS...
RESPONDENT : Prakash s/o Shivdas Waghmare
REVISION Aged about 46 years, Occ. Service,
APPLICANT R/o House No.13/22, Shrawasti Nagar,
ORIGINAL Nara Road, Ngapur 440014.
COMPLAINANT
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Shri S.G. Zinjarde, Advocate for petitioners
Shri P.D. Meghe, Advocate for respondent
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CORAM : AVINASH G. GHAROTE, J.
DATE : 12/08/2021
ORAL JUDGMENT
1. Heard Shri S.G. Zinjarde, learned Counsel for the
petitioners and Shri P.D. Meghe, learned Counsel for the respondent.
Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned Counsel for the parties.
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2. The undisputed facts in the matter are that the
respondent was appointed as a Welder on 15/5/1997 and was
confirmed as a Technician on 9/2/1998. His services came to be
terminated on 6/2/2015, prior to which, a first show-cause-notice
was given to him on 24/1/2015 and the second show-cause-notice
on 29/1/2015, both of which were replied on 31/1/2015. The
charges levelled against the respondent were (a) regarding theft of
the mobile of Shri Girade, Junior Engineer (Production) (b) excess
material found in his locker, which was not related to his day-to-day
activity/nature of work.
3. Considering the reply given by the respondent, the said
order of dismissal, came to be passed on 6/2/2015, holding that the
respondent had admitted his guilt in the matter of theft of a mobile
phone belonging to one Shri Girade, the Junior Engineer
(Production). The explanation tendered by the respondent in so far
as the excess tools found in his locker, that his colleagues had
handed them to him to keep in his locker, was not accepted.
4. Upon a challenge being raised before the learned
Labour court, it was found that the mobile was returned by the
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respondent, to Shri Rakesh Girade, Junior Engineer (Production)
on the same day and therefore, there was no intention found to
steal the mobile. In so far as the excess tools found in his locker, it
was found that they were of daily use and were not brought outside
the Company. It was further found that there was no departmental
enquiry against the complainant. If at all there was a contention,
that the respondent had admitted his guilt, the same ought to have
been before the Enquiry Officer. It was found that the so-called
admission was under pressure of the Management and therefore
lacked his consent. Even otherwise, it was found that the loss of the
mobile had taken place outside the Company premises. The learned
Labour Court therefore by its judgment dated 29/8/2019, quashed
the termination dated 6/2/2015 and directed reinstatement with
50% back wages. A challenge raised before the learned Industrial
Court by way of revision, met with a dismissal on 6/1/2020, which
is how, the matter is before this Court.
5. Shri Zinjarde, learned Counsel for the petitioners
submits that once the respondent had admitted his guilt, it was not
necessary to have conducted an enquiry and it is in view of this
admission, that the Manager of the petitioner, had issued the
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termination order dated 6/2/2015. He further submits that in case
the learned Labour Court, had arrived at a finding, that there was no
departmental enquiry, it ought to have framed an issue as to fairness
of enquiry and perversity of finding and permitted the petitioner to
lead evidence on that count. He submits that failure to do so vitiates
the impugned judgment. Learned Counsel places his reliance on AIR
1975 SC 1900 [The Cooper Engineering Ltd. Vs. P.P. Mundhe] (para
22) to submit that opportunity to lead evidence has to be given; AIR
1968 SC 266 [The Central Bank of India Ltd. Vs. Karunamoy
Banerjee] (para 18); AIR 1972 SC 32 [Channabasappa Basappa
Happali Vs. The State of Mysore] (para 4); (2006) 6 SCC 325
[Amrit Vanaspati Co. Ltd. Vs. Khem Chand and another] (para 8);
2018 (5) Mh.L.J. 936 [Divisional Controller, Maharashtra State
Road Transport Corporation, Latur Vs. Bhushan Jagannathrao
Bulbule] (paras 9 and 17) and (1996) (72) I FLR 1 : (1995) 6 SCC
279, [State Bank of Bikaner & Jaipur and others Vs. Prabhu Dayal
Grover].
6. Shri Meghe, learned Counsel for the respondent sole
submits that the reply of the respondent dated 31/1/2015, is self
speaking in as much as, it would indicate that there was never any
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intention to commit any theft, and the retention of the mobile was
on account of a jest, with an intention, to make Shri Girade, realize
his callousness in handling the mobile. In so far as the excess tools
in the locker of the respondent are concerned, an explanation was
given that his colleagues used to ask him to store their tools in his
locker, which was the reason why they were there, apart from
which, they were within the premises and not taken out. He submits
that in case, this was the charge, an enquiry ought to have been
held, which having not been so done, vitiates the termination of the
respondent.
7. It is an admitted position, that in spite of the show-
cause-notice dated 24/1/2015 and 29/1/2015, and the reply dated
31/1/2015 tendered in response to the same, and the nature of
allegation, namely that of theft, no enquiry was conducted. A
perusal of the explanation dated 31/1/2015 by the employee, would
demonstrate that the retention of the mobile, by the respondent,
was with an intention to make Shri Girade realize his negligence
and there was no intention of theft or illegal retention. The
expression used, which is construed as an admission, is
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"xSj okxuqdhyk" (improper behaviour), which would substantiate the
submission, that there was never any intention on part of the
respondent to illegally retain the mobile. This is further confirmed
from the finding of the Courts below that the said mobile was
returned back to Shri Girade, on the same day.
8. In so far as the question about finding excess tools in
the locker of the respondent is concerned, the explanation given as
is apparent, from Exh.C-15 (pg. 21), indicates that some of the
employees due to the nature of their work used to work for 16 hours
to two days without visiting their residence during which period,
since the store was closed, they used to take the equipment in
advance and used to keep the equipment in the locker of the
respondent. This being the case, an enquiry, in my considered
opinion, ought to have conducted in order to establish the allegation
of theft being made against the respondent/employee. This was
however never done. Not only this, the petitioners, did not even
record the statement of said Shri Girade, as to whether he had
received back his mobile, as contended by the respondent. Even
during the course of enquiry before the learned Labour Court, when
an opportunity of evidence was granted, the petitioners examined
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one Mridul Kumar Das at Ex.C-18, but chose not to examine said
Shri Rakesh Girade, which was open to it, due to which the
contention of Shri Zinjarde, learned Counsel for the petitioners that
there was no opportunity at all to lead evidence, is clearly
unacceptable. The learned Industrial Court in para 15 of its
judgment has also noted with approval the finding rendered by the
learned Labour Court that neither the charge-sheet is served to the
complainant nor any departmental enquiry was conducted and
therefore, the question of the learned Labour Court, not framing the
issue of fairness of enquiry and perversity of finding was not
germane.
9. The Cooper Engineering Ltd. (AIR 1975 SC 1900), upon
which reliance is placed by Shri Zinjarde, learned Counsel for the
petitioners, which holds as under :
"22. We are, therefore, clearly of opinion that
when a case of dismissal or discharge of an employee is
referred for industrial adjudication the Labour Court
should first decide as a preliminary issue whether the
domestic enquiry has violated the principles of natural
justice. When there is no domestic enquiry or defective
enquiry is admitted by the employer there will be no
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difficulty. But when the matter is in controversy between
the parties that question must be decided as a
preliminary issue. On that decision being pronounced it
will be for the management to decide whether it will
adduce any evidence before the Labour Court. If it
chooses not to adduce any evidence. It will not be
thereafter permissible in any proceeding to raise line
issue. We should also make it clear that there will be no
justification for any party to stall the final adjudication of
the dispute by the Labour Court by questioning its
decision with regard to the preliminary issue when the
matter, if worthy, can be agitated even after the final
award. It will be also legitimate for the High Court to
refuse to intervene at this stage. We are making these
observations in our anxiety that there is no undue delay
in industrial adjudication."
In the present case, admittedly, there was no domestic
enquiry whatsoever, in view of which, what has been held, in The
Cooper Engineering Ltd. (supra) itself would indicate, that there is
no necessity to frame a preliminary issue.
10. The Central Bank of India Ltd. (AIR 1968 SC 266) was
a case where the employee had admitted his guilt. In view of what
has been held above, that the reply dated 31/1/2015 did not
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indicate the admission of a theft, the same is clearly not attracted.
What has been admitted, is only possession of the tools in excess.
However, in order to establish theft, something more is required,
than mere possession, namely, the intention to dishonestly retain the
same, which has not been established in this case. Channabasappa
Basappa Happali (supra) is also on the same proposition and
therefore is also not applicable. Amrit Vanaspati Co. Ltd. (supra) lays
down the principles governing the jurisdiction of the Tribunal while
adjudicating the disputes relating to dismissal or discharge, which
amongst others holds that even if no enquiry has been held by
employer or the enquiry held is found to be defective, the Tribunal
in order to satisfy itself about the legality and validity of the order
had to give an opportunity to the employer and employee to adduce
evidence before it, which opportunity admittedly has been afforded
to the petitioners. Same is the proposition laid down in Bhushan
Jagannathrao Bulbule (supra). In Prabhu Dayal Grover (supra), it
has been held that a formal charge-sheet is the letter communicating
the accusation and not answering description of a 'formal charge-
sheet' but if its contents disclose specifically that the charge levelled,
the same would indicate that the delinquent employee stood fully
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apprised of the accusation levelled and was able to effectively reply.
In the instant case, presuming that the show-cause-notice would be
construed as a charge-sheet, indicating that the respondent was
aware of the nature of the charges levelled against him, the reply
given at Exh.C-12 and so also below Exh.C-15, would indicate that
there was no admission of any guilt of theft, which then necessarily
required an enquiry.
11. Shri Zinjarde, learned Counsel for the petitioners has
also placed reliance upon the Model Standing Orders for workmen
doing manual or technical work, as contained in Schedule-1 of the
Bombay Industrial Employment (Standing Orders) Rules, 1959, to
contend, that the opportunity to lead evidence is necessary. This
however, applies to a domestic enquiry against a delinquent
employee, however, as in the present case, no domestic enquiry
whatsoever is conducted, the provisions of Rule 25 (4) of the Rules
of 1959, would not come to his rescue.
12. That being the case, I do not see any reason to interfere
with the judgments of the Courts below. The writ petition therefore
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fails and is dismissed. Rule stands discharged. There shall be no
order as to costs.
13. In view of the dismissal of the petition, it is expected
that the petitioners shall comply with the order of the learned
Labour Court within a reasonable time from the date of this
judgment and positively within a period of two weeks from today.
(AVINASH G. GHAROTE, J.)
Wadkar
