Ganesh Manohar Daundkar vs General Motors India Pvt Ltd
2024 Latest Caselaw 23772 Bom

Bombay High Court

Ganesh Manohar Daundkar vs General Motors India Pvt Ltd on 13 August, 2024

 2024:BHC-AS:32794
                             Urmila Ingale                                          2-WP-10376-22.docx




URMILA by
          Digitally signed
          URMILA
       PRAMOD
                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRAMOD INGALE
       Date:
INGALE 2024.08.16
          15:15:12 +0530

                                                    CIVIL APPELLATE JURISDICTION

                                                  WRIT PETITION NO. 10376 OF 2022


                             Mr. Ganesh Manohar Daundkar                            .. Petitioner
                                      Versus
                             General Motors India Pvt Ltd                           .. Respondent

                                                         ....................
                              Mr. Nitin A. Kulkarni a/w Mr. Avinash Belge, for the Petitioner.
                              Mr. Vijay Purohit a/w Mr. Vinit Kamdar and Faizan Mithaiwala i/b
                               P&A Law Offices, for Respondent .
                                                         ...................
                                                                 CORAM : SANDEEP V. MARNE, J.

DATE : AUGUST 13, 2024 P. C.:

1. Rule. Rule is made returnable forthwith. With the consent of the parties, the Writ Petition is taken up for final disposal.

2. By the present Petition, the Petitioner has challenged the order date 25/08/2021 passed by the Presiding Officer, Labour Court No.3, Pune allowing the application at Exhibit 'C-11' filed by the Respondent-

Employer seeking leave to lead evidence in respect of both the charge- sheets dated 26/03/2013 and 02/07/2014 for justifying the termination order dated 28/02/2016.

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3. The Petitioner was working as a Team Member in the Body Shop, Manufacturing Department of the Respondent, who was engaged, at the relevant point of time in the activities of manufacture of passenger cars. The Petitioner was served with charge-sheet dated 26/03/2013 in respect of charge of alleged absence on 24/08/2012 and assaulting Mr.Gaurav Thakur on 17/03/2013. It appears that during pendency of the enquiry into the first charge-sheet dated 26/03/2013, the Respondent-Employer issued one more charge-sheet dated 02/07/2014 to the Petitioner alleging that the Petitioner stole the file relating to the enquiry into the first charge-sheet on 27/05/2014 and thereby prevented the employer from conducting enquiry in respect of the first charge- sheet. It appears that enquiry was conducted into the charge-sheet dated 02/07/2014 and Enquiry Officer submitted his report dated 08/02/2016 holding the Petitioner guilty of charges levelled in the charge-sheet dated 02/07/2014. The termination order dated 20/02/2016 was issued based on the said report of the Enquiry Officer. The termination order is subject matter of challenge in Reference (I.D.A) No. 291 of 2016 pending before the Labour Court at Pune.

4. The Labour Court passed Part I Award dated 29/01/2020 holding that enquiry was not legal, fair or proper and that finding of the Enquiry Officer suffers from vice of perversity. After delivery of Part I Award, the Respondent filed an application at Exhibit 'C-11' seeking permission to lead evidence on the entire written statement. The Application was resisted by the Petitioner by filing reply stating that evidence cannot be led in respect of first charge-sheet dated 26/03/2013. The Labour Court has however proceed to allow the application at

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Exhibit 'C-11' by its order dated 25/08/2021 by permitting the Respondent to lead evidence in respect of both the charge-sheets dated 02/07/2014 and 26/03/2013. The order dated 25/08/2021 is the subject matter of challenge in the present Petition.

5. Mr.Kulkarni, learned counsel appearing for the Petitioner would submit that since the charges levelled in the first charge-sheet dated 26/03/2013 are not the subject matter of the enquiry and since the punishment order is not based on the charges levelled in the first charge- sheet, the Respondent-Employer cannot be permitted to lead evidence in respect of first charge-sheet. He would submit that the finding recorded by the Labour Court that the Enquiry Officer's report is held to be perverse in respect of both the charge-sheets dated 02/07/2014 and 26/03/2013 is clearly contrary to factual position as no report of Enquiry Officer is submitted in respect of the first charge-sheet dated 26/03/2013. He would therefore submit that the order passed by the Labour Court on 25/08/2021 is required to be set aside by restricting the Respondent-Employer to lead evidence only in respect of the second charge-sheet dated 02/07/2014.

6. The Petition is opposed by Mr.Vijay Purohit, learned counsel for the Respondent-Employer. He would submit that the charge-sheet issued to the Petitioner on 02/07/2014 also encompassed the charges levelled in the first charge-sheet dated 26/03/2013. That the misconducts in both the charge-sheets are interlinked. He would submit that infact the second charge-sheet was required to be issued only on account of the conduct of the Petitioner in preventing the Management

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from conducting enquiry into the first charge-sheet. That since the misconducts in both the charge-sheets are inseparable, it cannot be said that the termination order is passed only in respect of charges levelled in the second charge-sheet. Taking me through the termination order dated 20/02/2016, Mr. Purohit would submit that the said order also contains specific reference to the charges levelled in the first charge-sheet dated 26/03/2013 as well. He would also invite my attention to the written statement filed before the Labour Court in which specific leave was craved for leading evidence in respect of both the charge-sheets. In support of his contentions, Mr.Purohit would rely upon the following judgments.

(a) Devendra Kumar Vs. State of Uttaranchal and ors.

(b) Karnataka State Road Transport Corporation Vs. Lakshmidevamma (Smt.) and anr.

(c) Workmen of M/s.Firestone Tyre and Rubber Co. of India (P.) Ltd. Vs. Management and ors.

7. Lastly, Mr.Purohit wdould submit that the entire operations of the Respondent-Employer have already been wound up and Company is no longer functional in India. He would pray for dismissal of the Petition.

8. Having considered the submissions canvassed by learned counsel appearing for the parties, the short point that arises for consideration is whether the Respondent-Employer can be permitted to lead evidence in respect of the first charge-sheet dated 26/03/2013. No doubt, the

1 (2013) 9 Supreme Court Cases 363

2 (2001) 5 Supreme Court Cases 433

3 (1973) 1 Supreme Court Cases 813

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second charge-sheet dated 02/07/2014 is necessitated on account of the alleged misconduct of the Petitioner in connection with the enquiry initiated into the first charge-sheet. The allegation in the second charge- sheet dated 02/07/2014 is about the alleged conduct of the Petitioner in stealing the file relating to the enquiry in respect of the first charge-sheet dated 26/03/2013. This is the reason why there is a specific reference to the first charge-sheet in the second charge-sheet. However, what is material is to note that though the charges in both the charge-sheets were available for being investigated, the Respondent-Employer made a choice of conducting enquiry only in respect of the second charge-sheet dated 02/07/2014. It appears that Mr.Ajit Desai was appointed as an Enquiry Officer only in respect of the second charge-sheet dated 02/07/2014. The Enquiry Officer in respect the first charge-sheet dated 02/07/2014 was entirely different viz. Mr. Mukund Kulkarni, Advocate. Perusal of the report of the Enquiry Officer Mr. Ajit Desai would indicate that he conducted enquiry only in respect of the second charge- sheet dated 02/07/2014. The last paragraph of his report dated 08/02/2016 clearly states that the Petitioner is found guilty in respect of charge of stealing the enquiry file levelled in the charge-sheet dated 02/07/2014.

9. When the report of the Enquiry Officer was placed before the General Manager-HR, he again recorded a specific finding that the charge levelled in the charge-sheet dated 02/07/2014 is proved against the Petitioner. The entire termination order dated 20/02/2016 does not contain any finding that the charges levelled in the first charge-sheet dated 26/03/2013 are held to be proved.

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10. Even though no enquiry was conducted in respect of the charge- sheet dated 26/03/2013 and according to Mr.Purohit, it is the Petitioner who is responsible for preventing the employer from not conducting enquiry into that charge-sheet, still nothing prevented the punishing authority from holding that the order of punishment was passed after taking into consideration the misconduct alleged in the first charge-sheet as well. It was open for the Respondent-Employer to dismiss the Petitioner by holding him guilty of misconduct in the first charge-sheet and take the risk of proving the charges in the first charge-sheet directly before the Labour Court. However, the punishing authority made a conscious choice by taking into consideration the charges levelled only in the second charge-sheet dated 02/07/2014 for terminating the services of the Petitioner.

11. In Reference (I.D.A) No. 291 of 2016, the validity of the termination order dated 20/02/2016 is under dispute. Therefore, correctness of the said order cannot be decided on the basis of allegations levelled in the first charge-sheet dated 26/03/2013. The Labour Court has erred in permitting the Respondent-Employer from leading evidence in respect of the first charge-sheet dated 26/03/2013. The finding recorded by the Labour Court that report of the Enquiry Ofifcer is found to be perverse in respect of the first charge-sheet dated 26/03/2013 itself suffers from the vice of perversity in view of the fact that the Enquiry Officer's report did not cover the allegations into the first charge-sheet.

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 Urmila Ingale                                         2-WP-10376-22.docx

12. The reliance by Mr.Purohit on judgments in (a) Devendra Kumar

(b) Karnataka State Road Transport Corporation (c) Workmen of M/s. Firestone Tyre and Rubber Co. of India (P.) Ltd (supra), does not assist the case of the Petitioner. In none of the said cases, the issue was with regard to the right of the employer to lead evidence in respect of the charge-sheet which does not form part of the punishment order.

13. I am therefore of the view that the impugned order dated 25/08/2021 passed by the Labour Court is indefensible and is liable to be set aside.

14. The Writ Petition accordingly succeeds. The order dated 25/08/2021 passed by the Labour Court in Reference (I.D.A) No. 291 of 2016 is set aside.

15. The Respondent-Employer shall be entitled to lead evidence only in respect of charges covered by the second charge-sheet dated 02/07/2014 and it shall not lead any evidence relating to the charges involved in the first charge-sheet dated 26/03/2013.

16. With the above observations, the Writ Petition is allowed. Rule is made absolute. There shall be no order as to costs.

[ SANDEEP V. MARNE, J. ]

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