Bombay High Court
Rameshprasad S/O Kalkaprasad ... vs M/S Neco Casting Private Ltd., ... on 1 February, 2021
Bench: V.M. Deshpande
1 WP4216.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 4216 OF 2017
PETITIONER : Rameshprasad S/o Kalkaprasad Sharma,
Aged 51 years, Occupation Nil
R/o New Sanjay Nagar,
Behind Laxminarayan Institute of Technology,
Amravati Road, Pandharabodi,
Nagpur - 10.
VERSUS
RESPONDENTS : 1] M/s NECO Castings Private Limited,
62/2, M.I.D.C. Industrial Area,
Nildoh-Digdoh, Hingna Road,
Nagpur, through its Manager,
2] The Hon'ble Judge, 4th Labour Court,
Civil Lines, Nagpur.
--------------------------------------------------------------------------------------------------
Mr. G. K. Bhusari, Advocate for the petitioner.
Mr. V. P. Marpakwar, Advocate for respondent no.1.
Mr. A. M. Kadukar, A. G. P. for respondent no.2.
-------------------------------------------------------------------------------------------------
CORAM : V. M. DESHPANDE, J.
DATE : FEBRUARY 01, 2021
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of the learned counsel for the parties.
2. By the present writ petition, the petitioner is challenging
2 WP4216.17.odt
the judgment and order passed by the learned Member, Industrial
Court, Nagpur in Revision ULP No. 170/2009 dated 05.11.2014,
whereby the revision filed by the petitioner was dismissed and the
judgment and order passed by the learned Judge, 4 th Labour Court,
Nagpur on 10.12.2008 in Complaint ULP No. 367/1994 dismissing
the complaint filed on behalf of the petitioner, was confirmed.
3. Heard Mr. G. K. Bhusari, learned counsel for the
petitioner, Mr. V. P. Marpakwar, learned counsel for respondent no.1
and Mr. A. M. Kadukar, learned Assistant Government Pleader for
respondent no.2.
4. The submission of Mr. Bhusari, learned counsel for the
petitioner is that since the petitioner was acquitted from the criminal
case which was tried in the Court of learned Judicial Magistrate,
First Class, Nagpur, the Courts below ought to have allowed the
complaint filed on behalf of the petitioner challenging his dismissal
from service. He relied on the decision of the Hon'ble Apex Court in
M. Paul Anthony (Capt.) .vs. Bharat Gold Mines Ltd. and Anr .,
reported in 1999 I CLR 1032.
5. Per contra, Mr. V.P. Marpakwar, learned counsel for
3 WP4216.17.odt
respondent no.1 vehemently opposed the contention raised by the
learned counsel for the petitioner and relied upon the decision of the
Hon'ble Apex Court in the case of Cholan Roadways Ltd. .vs.
G.Thirugnanasambandam, reported in AIR 2005 SC 570 and the
decision of this Court in Dattatraya Baburao Saindar .vs.
Maharashtra State Road Transport Corporation, Ahmednagar,
reported in 2015 (4) Mh.L.J. 561.
6. The petitioner was working as a Security Guard and was
permanent employee of the respondent-company. The gist of the
complaint filed on the part of the petitioner was that since the
petitioner refused to give evidence in favour of the management,
harassment started to him.
7. There is no dispute that on 09.6.1993, a charge-sheet
was served upon the petitioner and a serious charge of theft was
levelled against the petitioner that on 01.6.1993 at about 00.15
hours, the petitioner was caught red handed and when he was
searched at factory gate, he was found in possession of Carbide Tips
in two bags. According to the respondent-company, this act on the
part of the petitioner constitutes gross misconduct under the Model
Standing Orders framed under the Bombay Industrial Relations Act,
4 WP4216.17.odt
1946 and therefore, an enquiry was initiated. Though, initially one
Mr. S.S. Gupta, Assistant Commissioner of Labour (Retired) was
appointed as an Inquiry Officer and after holding enquiry he
submitted the enquiry report, the petitioner raised a grievance
before the Management that Mr. Gupta did not hold the enquiry in
accordance with law and therefore, accepting his contention, the
respondent management appointed Shri Ramesh Bhongade,
Advocate as an Inquiry Officer in the matter. After holding the
domestic enquiry, the Inquiry Officer found that the charge is duly
proved and therefore, a show cause notice was given to the
petitioner. Being dissatisfied by the reply given to the show cause
notice, the services of the petitioner were terminated by the
management.
8. Against the order of dismissal dated 18.03.1994, the
petitioner approached before the learned Judge of the Labour Court,
Nagpur by filing Complaint ULP No. 367 of 1994. In the complaint,
after the written statement was filed by the management, the
learned Judge of the Labour Court framed a preliminary issue as to
whether the complainant proved that the enquiry conducted against
him was not fair and proper. An opportunity was given to the
petitioner to prove his contention about the fairness of the enquiry.
5 WP4216.17.odt
For that, learned Judge of the Labour Court permitted him to adduce
evidence also. After the evidence was over and after hearing the
petitioner's counsel, the learned Judge, 4 th Labour Court, vide order
dated 16.04.2008 found that the enquiry conducted against the
petitioner was fair and proper. After the preliminary issue was
decided about fairness of the enquiry that was conducted against the
petitioner, the Labour Court proceeded with the matter further and
after a full dressed trial before the said Court, the learned Judge, 4 th
Labour Court, Nagpur vide judgment and order dated 10.12.2008
dismissed the complaint. The said was carried in revision and the
learned Revisional Court i.e. Industrial Court, also dismissed the
revision. Therefore, this writ petition.
9. Before the Labour Court and the Industrial Court, it was
the contention of the petitioner that since he was acquitted by the
learned Judicial Magistrate, First class, Nagpur in a criminal trial, he
is required to be reinstated in service because the charges are the
same.
10. From the evidence as adduced and it is placed on record
along with this writ petition, there cannot be any doubt in any one's
mind that after appointment of Shri Gupta as an Inquiry Officer and
6 WP4216.17.odt
after he submitted the enquiry report with the management, the
petitioner raised a grievance about the fairness of the domestic
enquiry and therefore, it appears that the management had decided
to hold enquiry afresh and therefore, for that Shri Bhongade,
Advocate was appointed. In the enquiry which was conducted
before the Inquiry Officer Shri Bhongade, the petitioner was
represented by his representative none other than Shri S.S.Gagde,
Advocate. Shri Gadge, participated fully in the enquiry proceedings.
From the evidence of the petitioner, it is clear that he admitted in his
cross-examination that in presence of Shri Gadge, his statement was
recorded in the domestic inquiry. He also admitted that the
documents which were demanded by the petitioner were also
furnished to him. Since, the petitioner has participated in the
enquiry proceeding through his Advocate and his Advocate along
with him participated in the entire proceeding, so also the
demanded documents were furnished to him and the evidence of the
petitioner was recorded in presence of his Advocate, in my view, the
learned Judge of the Labour Court was absolutely right in recording
a finding that the enquiry conducted against the petitioner was in
conformity with the principals of natural justice and enquiry was
fair.
7 WP4216.17.odt
11. The contention raised on behalf of the petitioner is that
since there was a criminal case in the Court of learned Magistrate
and he is acquitted, therefore, the order of dismissal cannot be said
to be good in the eye of law. In my view, this submission cannot be
accepted for the reason that it is a settled principal of law that the
standard of proof required in a criminal trial and the domestic
enquiry are altogether different. Before the criminal Court, the
prosecution is under a bounden duty to prove the charge against the
accused beyond reasonable doubt, whereas in the domestic enquiry
proceeding, the evidence has to be tested on the principles of
preponderance of probabilities. Therefore, merely because a person
is acquitted by the Criminal Court, that order does not give any
advantage to such a person to claim exoneration only on the said
ground. From the judgment delivered by the learned Magistrate, it
is clear that the learned Magistrate found that the panchanama was
not drawn on the spot itself and that the learned Judge found it to
be fatal for the prosecution and therefore, the petitioner was
acquitted. In my view, therefore, acquittal on the said ground
cannot be made a basis for setting aside the order of dismissal which
was based on the full fledged domestic enquiry conducted against
the petitioner. The Hon'ble Apex Court in Cholan Roadways Ltd.'s
case (supra) has laid down that the standard of proof required in a
8 WP4216.17.odt
domestic enquiry and criminal trial is absolutely different.
12. Further, at no point of time there was any
representation on the part of the petitioner to the Inquiry Officer
that in view of pendency of the criminal trial, the enquiry be stalled.
The Hon'ble Apex Court has already ruled that the Departmental
Enquiry and the proceeding in criminal trial can proceed
simultaneously as there is no bar and they being conducted
simultaneously though separately. Further, the petitioner did not
make any request to the Inquiry Officer or to the Management for
staying the enquiry proceedings on the ground of pendency of
criminal trial.
13. In totality of the circumstances, I am of the view that
both the Courts below have rightly exercised their powers. There is
no merit in this writ petition. Accordingly, the writ petition is
dismissed. Rule discharged. No order as to costs.
V. M. Deshpande, J.
Diwale
Digitally signed
Parag by Parag Diwale
Date:
Diwale 2021.02.02
17:19:33 +0530
