Bombay High Court
Vijay Sitaram Aarekar vs The Divisional Controller (M.S.R.T. ... on 1 March, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:9950
Sonali Mane WP-8343-2005(1).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8343 OF 2005
Shri. Vijay Sitaram Aarekar
Age : About 40 Years, R/o Khanoli,
Tal - Vengurla, Dist - Sindhudurg .. Petitioner
Versus
The Divisional Controller
M.S.R.T. Corporation
Sindhudurg Division, At & Tal - Kankavli,
Dist - Sindhudurg. .. Respondent
...
Mr. Milind Parab a/w Ms. Hemangi D. Pathare for Petitioner.
Ms. Pinky M. Bhansali for Respondent.
...
CORAM : SANDEEP V. MARNE J.
RESERVED ON : 22 FEBRUARY 2024.
PRONOUNCED ON : 30 FEBRUARY 2024.
JUDGMENT :
-
1) By this Petition Petitioner challenges Order dated
29 October 2005 passed by Industrial Court, Satara in Revision (ULP)
No. 38 of 2003. The Industrial Court has allowed the Revision filed by
MANE
SONALI
Sonali Mane WP-8343-2005(1).doc
Respondent and has set aside the Judgment and Order dated
24 February 2003 passed by Labour Court, Kolhapur in the Complaint (ULP)
No. 174 of 1999. The Labour Court had allowed Petitioner's Complaint (ULP)
No. 174 of 1999 and had directed Respondent to reinstate Petitioner in
service with continuity and full back wages.
2) Briefly stated, facts of the case are that Petitioner came to be
employed in the Respondent-State Transport Corporation on the post of
conductor sometime in the year 1989. He was deployed on 8 January 1999
on Unjawade - Vengurla route as a conductor. The Bus was checked at Adely
Textile Factory by the checking team when one passenger named
Shri. Ravindra Sawant was detected with ticket of Rs.5/-, which was issued
on previous date i.e. 7 January 1999. The Petitioner was also found with
Rs.24 short in S.T. cash. Domestic enquiry was instituted against Petitioner by
issuance of memorandum of charge sheet. The charge was held to be proved
and Respondent imposed punishment of dismissal from service on Petitioner
with effect from 1 May 1999.
3) Petitioner approached Labour Court by filing Complaint (ULP)
No. 174 of 1999 challenging his dismissal Order. The Labour Court did not
frame preliminary issues about fairness in the enquiry and perversity in the
finding of the Enquiry Officer. It proceeded to answer all the issues together
and delivered Judgment and Order dated 24 February 2003 allowing the
Complaint. The Labour Court held that the enquiry was fair and proper, but
the finding of the Enquiry Officer was perverse. The Labour Court therefore
set aside the Order of dismissal and directed reinstatement of Petitioner with
full backwages and continuity of service.
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4) Respondent filed Revision (ULP) No. 38 of 2003 before
Industrial Court at Satara challenging the Labour Court's decision. By Interim
Order, the Industrial Court stayed the Labour Court's Order for payment of
backwages but directed that in the event of Respondent-Corporation not
willing to reinstate Petitioner, they were directed to deposit his wages from
24 February 2003 during pendency of the Complaint. Respondent-
Corporation challenged the Interim Order of Industrial Court before this
Court by filing Writ Petition No. 9291 of 2003. Ad-interim Order was passed
by this Court on 22 December 2004 stating the Interim Order of the
Industrial Court directing deposit of wages. The said Order was latter
directed to be continued during pendency of Revision by disposing of Writ
Petition No. 9291 of 2003 by Order dated 1 September 2005.
5) Industrial Court allowed Revision (ULP) No. 38 of 2003 by its
Judgment and Order dated 29 October 2005 and set aside the Judgment and
Order dated 24 February 2003 passed by Labour Court in Complaint (ULP)
No. 174 of 1999. Aggrieved by the decision of Industrial Court, Petitioner has
filed the present Petition. This Court admitted the Petition by Order dated
6 December 2005.
6) Mr. Parab the learned Counsel appearing for the Petitioner would
submit that the Industrial Court has exceeded its jurisdiction under Section
44 of Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971 by reversing well-reasoned Order passed by the
Labour Court. That the Labour Court had correctly taken into consideration
the evidence of passenger Shri. Sawant recorded during the course of enquiry
when he denied payment of any amount to the Petitioner or purchase of
ticket from him. That the deposition of passenger Shri. Sawant before
Sonali Mane WP-8343-2005(1).doc
Enquiry Officer clearly disproved the charge of issuance of sold ticket. That
the evidence on record was rightly appreciated by the Labour Court for
holding that the findings of the Enquiry Officer were perverse. That there
was no valid ground for the Industrial Court to interfere in the findings of the
Labour Court in exercise of revisionary jurisdiction under Section 44 of the
MRTU and PULP Act.
7) Mr. Parab would submit that the Industrial Court erred in relying
upon pre-recorded statements which are contrary to depositions in the
enquiry. That the evidence recorded during enquiry prevails over the
pre-recorded statements. That the Enquiry Officer had erred in relying on
spot statements of Petitioner and passengers by ignoring the evidence
appearing on record. That the Labour Court had correctly held the findings of
the Enquiry Officer has perverse.
8) Mr. Parab would further submit that Petitioner had rendered
over 10 years of service at the time when he was dismissed. That if Petitioner
had misappropriated any amount by selling already sold ticket, there ought
to have been Rs.5 excess in his S. T. cash. That on the contrary Rs.24 were
found short in Petitioner's S.T. cash, which falsified the allegations of
misappropriation. That Petitioner is currently 59 years old and is without any
pensionary benefit on account of illegal Order of dismissal. He would pray
for setting aside Industrial Court's Order and upholding decision of the
Labour Court.
9) Per contra Ms. Bhansali the learned counsel appearing for the
Respondent-Corporation would oppose the Petition and support the decision
of the Industrial Court. She would submit that Petitioner admitted before the
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checking team that he had issued a ticket to the passenger Shri. Sawant. That
he gave a specific statement before the checking team for having issued ticket
bearing No. 467064 to the passenger. That the passenger also gave a
statement at the time of checking that the ticket was indeed issued by the
Petitioner. That the Industrial Court has rightly appreciated the evidence on
record while reversing erroneous Order passed by Labour Court. She would
pray for dismissal of the Petition.
10) Rival contentions of the parties now fall for my consideration.
11) Petitioner faced serious charge of selling already sold ticket to
the passenger Shri. Ravindra Sawant, who was travelling from Zarapi to
Maruti Mandir. Ticket No. 467064 which was in a possession of passenger
was issued on 7 January 1999 whereas the passenger was found travelling in
the bus on 8 January 1999. Both Petitioner as well a passenger admitted in
their statements recorded immediately after the incident that ticket
No. 467064 was indeed issued by Petitioner to the passenger. The passenger
however subsequently turned hostile and deposed in the enquiry that he
neither paid any amount to Petitioner nor any ticket was issued to him. The
Labour Court has believed the said deposition of the passenger for holding
that the passenger had played a mischief by falsely stating before the
checking squad that the ticket in its possession was issued by Petitioner. The
Labour Court accordingly concluded that Petitioner did not issue the ticket
which was found in the possession of passenger.
12) In ordinary course, prerecorded statements are required to be
ignored and deposition of witnesses alone are required to be taken into
consideration in proving charge levelled in a domestic enquiry. However, in
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the present case the passenger turned hostile during the course of enquiry
and disowned his statement given immediately after the incident to the
checking squad. The Industrial Court has held that the Reporter who
recorded the statement of Petitioner's passenger was not inimical to
Petitioner who did not prove any grudge against him. There was thus no
reason for the reporter to create false record against Petitioner. The
statement of the passenger is recorded in his own handwriting. There is yet
another factor which is noticed by the Industrial Court. Petitioner filed reply
to the chargesheet but did not aver that his statement was recorded by force
or coercion. He subsequently came up with a theory of non-issuance of ticket
to Shri. Sawant when depositions were recorded. If Petitioner indeed had not
issued ticket to Shri. Sawant and if his statement was recorded under
coercion, he ought to have disowned the same immediate. The statement is
recorded on 8 January 1999 and the reply to the chargesheet was submitted
by him within four days on 12 January 1999. The fact that Petitioner did not
disown his statement recorded by checking team in his reply dated 12
January 1999 speaks volumes about his conduct. The Industrial Court has
rightly considered cumulative effect of various factors of:
i) Statement of Petitioner's passenger recorded on 8 January 1999.
ii) Absence of any animus of checking squad against Petitioner.
iii) Failure on the part of the Petitioner to disown his statement in
the reply dated 12 January 1999.
13) Labour's Court's finding about a mischief being played by the
passenger is unsupported by evidence. If the passenger was indeed travelling
ticketless, Petitioner did not depose so in the inquiry. He did not take a stand
either before the checking team or during the enquiry that he did not issue
any ticket to the passenger. If he indeed failed to issue ticket to him, he did
Sonali Mane WP-8343-2005(1).doc
not explain the reason why he did so. Applying the test of preponderance of
probability, it is proved that Petitioner issued the concerned ticket to the
passenger, who produced the same before the checking team.
14) Possession of short cash of Rs. 24 by Petitioner cannot lead to
automatic presumption that Petitioner did not issue already sold ticket to the
passenger. Many times, artificial shortage is created by the ticketing staff to
escape the charge of overcharging or issuing already sold tickets.
15) After going through the findings recorded by the Labour Court it
is seen that the Labour Court had committed grave error in not taking into
consideration the above three factors and concentrated only on evidence of
hostile witness Shri. Sawant. Since there was gross error committed by the
Labour Court, the Industrial Court has rightly exercised its revisional
jurisdiction under Section 44 of MRTU and PULP Act. As the conclusion
drawn by Labour Court was perverse, the revisionary jurisdiction exercised
by the Industrial Court was within the contours of provisions of Section 44 of
the Act.
16) After considering overall conspectus of the case no patent error
can be traced in the Order passed by the Industrial Court. Writ Petition, being
devoid of merits, is dismissed without any Orders as to costs. Rule is
discharged.
[SANDEEP V. MARNE J.]
