Rangrao Krishnarao Choudhari vs Maharshi Babasaheb Kedar ...
2021 Latest Caselaw 2191 Bom

                                       1                                       WP2188.17.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               : NAGPUR BENCH : NAGPUR.


                     WRIT PETITION NO. 2188 OF 2017


PETITIONER                  : Rangrao S/o Krishnarao Choudhari,
                              Aged about 46 years, Occu. Nil.
                              R/o At Post Brahmanwada,
                              Post Walni (Khandala), Tq. & Dist. Nagpur.


                                            VERSUS


RESPONDENTS                 : 1] Maharshi Babasaheb Kedar Sahakari Sut
                                 Girni, Wanadongri, Tahsil Hingna,
                                 District Nagpur,
                                 Through its Managing Director.

                               2] The Presiding Officer,
                                  First Labour Court, Civil Lines, Nagpur.

                               3] The Member,
                                  Industrial Court, Civil Lines, Nagpur.

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          Mr. V. P. Marpakwar, Advocate for the petitioner.
          Mr. V. D. Raut, Advocate for the respondent no.1
          Mr. A. M. Kadukar, A.G.P. for respondent nos.2 and 3
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                    CORAM : V. M. DESHPANDE, J.

DATE : FEBRUARY 03, 2021

ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard finally

by consent of the learned counsel for the parties.

2 WP2188.17.odt

2. Heard Mr. V. P. Marpakwar, learned counsel for the

petitioner and Mr. V. D. Raut, learned counsel for respondent no.1.

Respondent nos.2 and 3, who are formal parties, are represented by

Mr. A. M. Kadukar, learned Assistant Government Pleader.

3. By this writ petition, the petitioner is challenging the

judgment and order passed by the learned authority under the

Bombay Industrial Relations Act, 1946 and the learned Judge, First

Labour Court, Nagpur dated 12.12.2005 in BIR Application No.

136/1997 filed on behalf of the petitioner, whereby the learned

Judge of the First Labour Court dismissed the application, together

with the judgment and order passed by the learned Member,

Industrial Court, Nagpur, the Appellate Authority, dated 19.07.2014

in BIR Appeal No. 02/2006, whereby the learned Appellate

Authority dismissed the appeal filed on behalf of the petitioner and

confirmed the judgment and order dated 12.12.2005.

4. The petitioner was working as a Winder with

respondent no.1 - company. He was served with a show cause

notice dated 02.05.1995 by the General Manager (Tech.) of

respondent no.1-Company. As per the show cause notice, on

24.04.1995, in the second shift, senior officer one Shri R.K. Jawade, 3 WP2188.17.odt

Spinning Master when gave a visit at 11.35 in the night at Winding

Department of respondent no.1-Company, that time it was found by

him that the petitioner was not on the machine and he was combing

his hairs. Upon that, said officer Shri Jawade asked the petitioner

that his shift is yet to over and therefore, he should immediately

resume his work. The show cause notice shows that upon that, the

petitioner abused Shri Jawade in very abusive language. Therefore,

Shri Jawade asked one Shri Mandwekar to call the Labour Officer

and the Watchman. Upon that, the petitioner got flared up and he

lifted one big iron container and made an assault with the same

upon Shri Jawade resulting into Shri Jawade suffering injuries. The

petitioner was, therefore, served with a notice for the following

misconducts :-

"1. M.S.O. 24(a) : Willful insubordination or disobedience whether or not in combination with another of any lawful and reasonable orders of a superior ;

2. M.S.O. 24(c) : Willful slowing down in performance or work or abetment or instigation thereof ;

3. M.S.O. 24(h) : Habitual breach of any standing order or any law applicable to the establishment or any rule made thereunder.

4. M.S.O. 24(L) : Drunkenness, riotous, disorderly or indecent behavior on the premises of establishment.

5. M.S.O. 24(k) : Commission of any act subversive of discipline or good behavior on the premises of the establishment."

4 WP2188.17.odt

5. The petitioner, therefore, was directed to file reply to

the show cause notice. The petitioner thereafter vide his reply dated

11.05.1995 submitted his explanation.

6. Since, the explanation was not found to be satisfactory

by the respondent, Departmental Enquiry was conducted against the

petitioner. The Inquiry officer submitted his report, a copy of which

was given to the petitioner. The Inquiry Officer found that the

charges against the petitioner were found to be proved. Therefore,

the respondent on 03.02.1996 gave show cause notice and sought

his explanation. The said was replied, however, the management

was not satisfied with the same and the respondent management

since was agreeable to the findings recorded by the Inquiry Officer,

issued the order of termination on 12.06.1997 and terminated

respondent no.1 from the said date.

7. The petitioner was aggrieved by the order of

termination. He, therefore, approached to the Labour Court, which

is also an authority under sections 78, 79 read with Section 42-A of

the Bombay Industrial Relations Act and challenged the order of

termination. The application was registered as BIR Application No.

136/1997. the learned Judge of the Labour Court dismissed the 5 WP2188.17.odt

complaint, which was confirmed by the Appellate Court.

8. Shri V. P. Marpakwar, learned counsel for the petitioner

invited my attention to paragraph 5 of the judgment of the Labour

Court to show that the Labour Court vide order dated 13.03.2001

recorded a finding that the enquiry conducted against the petitioner

was not fair and proper and was not as per the principles of natural

justice. There is no dispute on the part of the petitioner that

thereafter the learned Judge of the Labour Court granted permission

to the respondent no.1 to prove the charges before the Labour Court

and accordingly the management adduced evidence in that behalf.

9. It is a trait law that when the Labour Court is of the

view that the enquiry conducted against a delinquent is not in

consonance with the principles of natural justice and/or the enquiry

is not fair and proper, it is always open for the management to

submit the case before the Labour Court and to prove the charges

against the delinquent in the Court. Accordingly, when the

permission is given to the management to prove the charges in the

Court against the delinquent, the said evidence can very well be

used against the delinquent to show that the delinquent has

committed misconducts which are duly proved in the Court.

6 WP2188.17.odt

10. In the present case, the management has examined

various witnesses including Shri Jawade, whose evidence is at

Exh.76. On behalf of the petitioner, he entered into the witness box.

Except him, he did not examine any other witness.

11. It was also one of the submissions before the Courts

below and before this Court on the part of the petitioner that

simultaneously the petitioner faced the criminal prosecution in the

Court of learned Judicial Magistrate, First Class for relevant sections

in Regular Criminal Case No. 100/1995 and the learned Magistrate

acquitted him. The law on this issue is well settled. The Hon'ble

Apex Court in M. Paul Anthony (Capt.) .vs. Bharat Gold Mines Ltd.

and Anr., reported in 1999 I CLR 1032 in paragraph 26 has ruled

that the departmental proceeding and the proceeding in criminal

case can proceed simultaneously as there is no bar and they are

being conducted simultaneously though separately. Standard of

proof for proving the guilt in a criminal trial is much higher than to

prove the misconduct in a domestic enquiry. In the criminal

proceeding, the prosecution has to prove the guilt of the accused

beyond reasonable doubt, whereas in the domestic enquiry to prove

the misconduct of a delinquent, the evidence is required to be tested

on the principles of preponderance of probabilities. Therefore, 7 WP2188.17.odt

merely because the petitioner was acquitted in the criminal case, the

same will not be helpful to him.

12. In this petition, it is an admitted position that at the

relevant time, the petitioner as working as a Winder and on

27.04.1995, he was working in Winding Department of the

respondent - Company and undisputedly, Shri Jawade was working

as Spinning Master and he was on duty on 27.04.1995. It is also not

in dispute that Shri Jawade took a round being a superior officer, at

11.30 in the night in Winding Department from Ring Frame

department and at that time, he found that the petitioner was not

discharging his duty on the machine, but he was combing his hairs

and when Shri Jawade asked about the said and directed him to

resume the duty, the petitioner got flared up and used choicest of the

abuses. Not only that, he threw an iron container, though empty, on

the person of Shri Jawade resulting into causing injury on his finger

since he tried to save his head. The injury certificate of Shri Jawade

was placed on record as it could be seen from the judgment of the

trial Court, at Exh.64.

13. Mr. Marpakwar, learned counsel for the petitioner could

not point out anything to show that evidence of Shri Jawade, who 8 WP2188.17.odt

was injured, could not be believed. The learned Judge of the Labour

Court found the evidence of Shri Jawade trustworthy. His version

that he was assaulted by the petitioner was also proved through his

injury certificate (Exh.64).

14. The act on the part of the petitioner in leaving the

machine abruptly, though he was supposed to work on the machine

and combing hairs was a serious misconduct. Not only that, when

he was asked by his superior to resume the duty, instead he used

abusive words and assaulted on him, in view of this Court, is a grave

misconduct.

15. In the Court itself, full opportunity was given to the

petitioner to defend himself to show that the action of termination of

his services is mala fide, however, the learned Judge of the Labour

Court found that the management has proved this charge and

therefore, in my view rightly dismissed the proceedings filed on

behalf of the petitioner.

16. The Appellate Court also, in my view, has rightly

concurred with the findings recorded by the Labour Court.

9 WP2188.17.odt

17. This writ petition is against the concurrent findings of

facts recorded by both the Courts below. Before me, nothing could

be pointed out to disbelieve the evidence of the superior officer Shri

Jawade. Therefore, I am of the view that no exception can be taken

to the well reasoned judgments delivered by both the Courts below.

Resultantly, I pass the following order :

ORDER.

1. The writ petition is dismissed.

2. Rule discharged.

3. No order as to costs.

V. M. Deshpande, J.

Diwale

Digitally signed by Parag Parag Diwale Date:

                                               Diwale        2021.02.04
                                                             16:58:12
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