Bombay High Court
Peico Electronics And Electricals ... vs Shri. Anthony Francis Pereira And Anr on 16 October, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:42547-DB
Digitally
signed by
CHAITANYA
CHAITANYA ASHOK
ASHOK
JADHAV
JADHAV
Date:
2024.10.24
1/18 Judgement-LPA-134-2011.doc
18:27:52
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
LETTERS PATENT APPEAL NO.134 OF 2011
IN
WRIT PETITION NO. 2618 OF 1999
WITH
CIVIL APPLICATION (CAL) NO. 160 OF 2011
IN
LETTERS PATENT APPEAL NO.134 OF 2011
Peico Electronics & Electricals Limited. Appellant
Loni Kalbhor, Pune - 412 201. .. (Org. Respondent)
Versus
1. Mr. Anthony Francis Pereira,
S. No. 12, Laxmi Nagar, Behind
Balewadi, Yerwada, Pune - 411 006.
2. Mr. V. N. Nandedkar,
Presiding Officer, First Labour
Court, Pune, having office at P.M.T. Respondents
Building, Swargate, Pune - 411 042. .. (Org. Petitioner)
...
Mr. Kiran S. Bapat, Senior Counsel i/b Mr. Gaurav S. Gawande,
for the Appellant.
Mr. Anurag Gokhale i/b Mr. Nitin Deshpande, for the
Respondent No.1.
...
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 16th OCTOBER, 2024
JUDGMENT (PER MANJUSHA DESHPANDE, J.) :
-
1. The present Letters Patent Appeal ("LPA") has
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been filed by the Appellant/Original Respondent, against the
Judgment and Order dated 09.02.2011, passed by the learned
Single Judge of this Court, in Writ Petition No. 2618 of 1999.
2. The Appellant/Original Respondent is the Company
wherein the Respondent/Original Petitioner was serving as a
driver since his appointment from December, 1976. He was
engaged in driving the Company's bus in which transported
the workmen to and from the premises of the Appellant-
Company. He was issued a charge-sheet on 12.06.1989 on the
ground that, he had interpolated Medical Certificate issued to
him by the Panel Doctor, in order to avail leave from
24.04.1989 to 08.05.1989, which amounted to gross
misconduct under Clauses 24(d) and 24(1) of the Certified
Standing Orders, applicable to the Appellant-Company.
3. During the pendency of the said charge-sheet, a
fresh charge-sheet was issued to the Respondent herein,
alleging misconduct on account of absence without leave.
Therefore, having committed misconduct under Clauses 24(f)
and 24(1) of the Certified Standing Orders, inquiry was
conducted against the Respondent, in respect of the charges
levelled against him, in both the charge-sheets issued against
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him. The Inquiry Officer has submitted a report holding the
Respondent herein guilty of the charges. The report was
accepted by the Appellant-Company and the Respondent
herein was dismissed from service on 24.03.1992.
4. Being aggrieved with the Order of dismissal, the
Respondent herein raised an Industrial Dispute, which was
referred for adjudication before the Labour Court, Pune, being
Reference (IDA) No. 284 of 1992. In the statement of claim,
the Respondent herein has pleaded that the inquiry which was
conducted against him was vitiated, since the principles of
natural justice had not been followed. The perversity of the
findings recorded by the Inquiry Officer were also pleaded
before the Labour Court, Pune. According to the Respondent,
only on account of being active member of Trade Union
representing the workmen, the Appellant-Company had
dismissed him from the service, holding grudge against him.
Therefore, he claimed reinstatement with continuity of service
and backwages.
5. The learned Judge of the Labour Court by Award
Part-I, passed on 16.10.1995, concluded that the inquiry
against the Respondent was vitiated. The said inquiry was
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completed hastily without affording a proper opportunity to
the delinquent to meet the charges levelled against him.
6. The parties had agreed that, the evidence of all the
other witnesses examined before the Inquiry Officer, except
the evidence of Dr. Upadhye could be read in evidence as led
before the Labour Court. Therefore, only Dr. Upadhye came to
be examined before the Labour Court. The Labour Court after
consideration of evidence placed before it held that, the
Petitioner had committed an act of misconduct as alleged,
therefore denied him reinstatement with continuity of service
and full backwages. It is against the said Award of the Labour
Court, the Respondent herein had approached this Court in
Writ Petition No. 2618 of 1999.
7. The Writ Petition was decided by the learned Single
Judge of this Court on 09.02.2011, thereby partly allowing the
Writ Petition.
On taking into consideration the Award of the
Labour Court and the evidence produced by the parties before
the Labour Court, the Judgment has recorded a finding that
the punishment of dismissal imposed for the proved
misconduct is too harsh and disproportionate and considering
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his unblemished service for a long period of 16 years, the
Respondent is entitled for reinstatement with continuity of
service and part of his backwages. However, considering that
he had already attained the age of superannuation and he
could not be reinstated, the learned Single Judge has thought
it appropriate to grant him compensation equivalent to 75% of
the wages payable to him from the date of dismissal upto the
date of superannuation, with further declaration that the
workman shall be deemed to be in continuous service up to the
date of superannuation, for the purpose of payment of gratuity
and other benefits and the Writ Petition was disposed off
accordingly.
8. It is against this Judgment, the Appellant-Company
has filed the present LPA.
According to the learned counsel Mr. Bapat,
representing the Appellant, the learned Single Judge has
committed an error in holding that the charge against the
Respondent, has not been proved. The learned Single Judge
ought not to have re-appreciated the evidence led before the
Court as if it was sitting in appeal over the judgment passed by
the Labour Court. The Appellant-Company has also challenged
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the finding given by the learned Single Judge, about the
proportionality of the punishment of dismissal, since the
charges were proved. In short the Appellant has challenged
the findings about the proportionality of penalty imposed by
the Disciplinary Authority as well as the Labour Court.
9. The learned counsel Mr. Gokhale, appearing for the
Respondent raises a preliminary objection to the
maintainability of the present LPA, by placing reliance on the
Judgment of Full Bench of this Court reported in 2004(5)
Bom.C.R. 50 in Rahul Sharad Awasthi V/s. Ratnakar Trimbak
Pandit And Ors.
The issue before the Full Bench was, whether
Section 100-A as substituted by section 4 of the C.P.C.
(amendment Act of 2002) shall have retrospective effect prior
to 1st July 2002. While answering the issue the Full Bench has
held thus -
" 41. The result of the foregoing discussion may here be
shortly summarised:
i) Section 100-A in the Civil Procedure Code,
1908 substituted by Section 4 of the Code of
Civil Procedure (Amendment) Act 2002
takes away the right of Letters Patent Appeal
on and from 1st July, 2002 in respect of the
suit filed before that date where the judgment
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or order of the learned Single Judge of the
High Court in appeal against an original
decree or order from such suit is rendered on
and after 1st July, 2002 i.e., the date on
which the amendment is brought into force.
Put it briefly, no Letters Patent Appeal shall
lie from the judgment, decree or order of a
Single Judge in the first appeal (or by
whatever name called) given on or after
coming into force of the new Section 100-A
i.e. 1st July, 2002.
ii) The provisions of Section 100-A in the
Code of Civil Procedre, 1908 substituted by
Section 4 of the Code of Civil Procedure
(Amendment) Act, 2002 shall not apply to
the judgment and order of the Single Judge of
the High Court in appeal against an original
decree or order rendered before 1st July,
2002 and the Letters Patent Appeal
preferred against such judgment or order on
or after 1st July,2002.
iii) In relation to the suit instituted prior to
1st July, 2002 and the judgment or order of
the Single Judge of the High Court in appeal
against an original decree or order rendered
before 1st July, 2002, the pending Letters
Patent Appeal as on 1st July, 2002 preferred
against such judgment and order of the
Single Judge shall remain unaffected by
Section 100-A of the Code of Civil Procedure,
1908 as substituted by Section 4 of the code
of Civil Procedure (Amendment) Act, 2002.
iv) In other words, Section 100-A as
substituted by Code of Civil Procedure
(Amendment) Act, 2002 has a limited
retrospectivity as indicated in clause (i)
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above and to that extent vested right of the
parties to the suit filed prior to 1st July, 2002
is extinguished. The fate of Letters Patent
Appeal arising out of any appeal from an
original decree or order heard and decided by
a Single Judge prior to 1st July, 2002
remains unaffected by the new Section 100-A
of the Code."
10. The learned counsel has relied on the above finding
in the Judgment to urge that the present LPA is not
maintainable. According to us, the said finding does not have
any application to the present case, as it deals with Section
100-A of the C.P.C.. The present proceedings are arising out of
the Judgment and Award in the proceedings before the Labour
Court in Reference (IDA) No. 284 of 1992. It has been
categorically observed in para No.37 of the same Judgment,
which reads thus :
" 37. We clarify that we are not concerned with
the question whether Section 100-A of the Code
as substituted by the Amendment Act, 2002 is
applicable to the appeal before the Division
Bench against the judgment and order of a
Single Judge of the High Court in exercise of
appellate jurisdiction under special statute and
to that extent we do not express any opinion
about the Full Bench decision of Andhra
Pradesh High Court and the Division Bench
decision of this court in Bhenoy G. Dembla.
However, in so far as the view has been taken
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in Bhenoy G. Dembla that the necessary
intendment of Section 100-A is that its
provision will apply even if a suit was
instituted prior to 1st July, 2002 so long as the
judgment and order of a learned Single Judge
of the High Court in appeal against an original
decree or order has been rendered on and after
the date on which the amendment was brought
into force is correct."
Therefore, we do not find any substance in the
objection raised by the learned counsel Mr. Gokhale appearing
for the Respondent.
The present Appeal can be entertained if there is
any substantial question of law raised, or there is any wrong
interpretation of law and perverse findings recorded. Hence,
the challenge to the findings rendered by the learned Single
Judge, will have a restricted scope. Therefore, for deciding
whether there is any perversity in appreciation of law and
whether there is any substantial question of law raised in the
present Appeal, the background of the case of the Respondent
will have to be appreciated.
The first charge-sheet dated 12.06.1989 was issued
to the Respondent for having interpolated in the Medical
Certificate, while the second charge-sheet was issued for
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absenteeism of the Respondent, without prior sanction of
leave.
11. So far as the charge-sheet of interpolation of
Medical Certificate is concerned, the learned counsel for the
Appellant-Company has given brief details of the medical
scheme of the Appellant-Company.
According to the said scheme, the Appellant-
Company used to provide expenses of medicines to the tune of
Rs.1,550/- per year and 15 days of Paid Sick Leave to an
employee. Apart from the 15 days paid sick leave, there was
also a scheme of providing 41 days Special Sick Leave, in
which the workman was entitled to get salary at @ 80%.
However, this special sick leave was admissible only after the
workman had exhausted 15 days paid sick leave. The said
leave was admissible for minimum of 6 days and for days more
than that it was based on certificate issued by the Doctor.
The Company had a tie up with various empanelled
doctors located at various places to issue certificate to the
workmen. The panel Doctors used to issue two types of
certificates; the first is Sickness Certificate, and the other is
Fitness Certificate. In case of sickness of one or two days, the
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Sickness Certificate itself accompanied the Fitness Certificate,
both the certificates were issued together. On this background,
the present Respondent workman applied for the Special Sick
Leave, requesting for adjustment for six days leave from his
permissible 15 days paid sick leave and further sought six
days leave from the scheme of Special Sick Leave.
He produced one certificate which included both
the sickness and fitness certificate. The said certificate dated
24.04.1989 had certified his fitness to join his duties from
09.05.1989. Since the said certificate was found not to be in
tune with the scheme prevalent in the Appellant-Company, the
Doctor who issued the certificate was inquired. The Doctor had
denied to have issued the Fitness Certificate, and to have put a
fitness date. Hence, in view of the said interpolation, the
Respondent herein was chargesheeted as per the applicable
Certified Standing Orders.
He was also chargesheeted for his absence of 43
days within one calendar year from June 1989 to June 1990.
An inquiry was conducted against the present Respondent and
after having found guilty in the said inquiry, the Respondent
was discharged from his service on 24.03.1992.
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12. On this background, the learned Single Judge has
decided the Writ Petition and while giving finding as regards
the interpolation of Medical Certificate, it is held that, the
Medical Certificate which is at Exh-37 was referred to Dr.
Upadhye, who has been examined in the proceedings before
the Labour Court has stated that the fitness mentioned in the
certificate at Exh-37 is neither in his handwriting nor in the
writing of his compounder.
The Doctor has further stated that he was unaware
as to whether the Petitioner himself had interpolated the
Medical Certificate. Considering that there was no direct
evidence that the Respondent herein had inserted the date of
fitness, the Appellant-Company ought to have examined hand-
writing expert to verify whether the Petitioner had inserted
the date of fitness in his own hand-writing.
Since the charge against the Respondent-herein
was specifically about the interpolation of documents, the
evidence of hand-writing expert was necessary, since there
was no other evidence incriminating the Respondent. The
learned Judge has observed that, the Labour Court committed
an error in assuming that, the Respondent workman could
have committed act of insertion. The learned Judge has
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recorded on the basis of the interpolated Medical Certificate,
no monetary benefit had accrued to the Respondent. There
was no necessity for the workman to tamper the Medical
Certificate as he had the sick leave to his credit which he could
avail by producing certificate from the Doctor. The fitness
Certificate alongwith Medical Certificate was issued only when
Medical Leave was for 2 - 3 days. In the instant case it is
alleged that the workman had 6 days of sick leave to his credit
and he added six more days of paid sick leave, and added date
of fitness. Hence, the interference drawn against the workman
was not justifiable in absence of any evidence.
13. We do not find any perversity in the findings
recorded by the learned Judge in this regard. The learned
Judge has rightly deprecated the conduct of the Appellant-
Company in which the employer company has chosen to split
the disputed Medical Certificate, partly accepting the leave of 6
days and partly discarding it as inadmissible. It either should
have been accepted in toto or not at all. Considering that there
is no evidence produced by the Appellant to prove that the
interpolation was done by the Respondent, it is rightly held
that charge is not proved. We do not find that there is any
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perversity in the findings recorded by the learned Single
Judge.
14. So far as the second charge issued against the
Respondent herein, on 02.08.1990, in respect of absence
without leave is concerned, the learned Single Judge has given
thoughtful consideration to the Certified Standing Orders and
the evidence produced by the parties. The learned Single
Judge, has been pleased to hold that, the allegations contained
in the charge-sheet have been proved since the Respondent
has failed to cross-examine the witness who was examined to
prove the charge. It is held that the Labour Court was right in
accepting the evidence and concluding that the workman was
habitual absentee. However on the issue of imposing penalty
for the misconduct of absence without leave, the punishment
of dismissal was held to be too harsh. The Respondent had
rendered 16 years of unblemished service from 1976 till his
dismissal from the service in 1992. Therefore, the quantum of
penalty was held to be shockingly disproportionate.
15. Hence, in view of the past services rendered by the
Respondent and considering the nature of delinquency i.e. of
absenteeism for about 43 days in one calendar year, it has
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been held that the punishment is too harsh.
The doctrine of proportionality can be invoked by a
Superior Court in exercise of the jurisdiction under Article
226 of the Constitution, in case of the punishment imposed by
disciplinary authority or appellate authority shocks the
conscience of the Court.
In the instant case, the learned Single Judge has
taken into consideration that, the Appellant has not placed on
record anything about previous misconduct of the workman,
hence presuming that there was no such previous misconduct
the penalty of dismissal was considered to be 'harsh'.
When confronted with a typical situation where an
employee admitted his guilt and sent his resignation due to
personal reason the following observations are made by the
Hon'ble Apex Court in the report Judgment of Chairman-Cum
Managing Director, Coal India Ltd. And Anr V/s. Mukulkumar
Choudhuri And Ors., reported in AIR 2010 SC 75, which reads
thus :
" 26. The doctrine of proportionality is, thus,
well recognized concept of judicial review in our
jurisprudence. What is otherwise within the
discretionary domain and sole power of the
decision maker to quantify punishment once the
charge of misconduct stands proved, such
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discretionary power is exposed to judicial
intervention if exercised in a manner which is
out of proportion to the fault. Award of
punishment which is grossly in access to the
allegations cannot claim immunity and remains
open for interference under limited scope of
judicial review. One of the tests to be applied
while dealing with the question of quantum of
punishment would be : would any reasonable
employer have imposed such punishment in like
circumstances? Obviously, a reasonable
employer is expected to take into consideration
measure, magnitude and degree of misconduct
and all other relevant circumstances and
exclude irrelevant matters before imposing
punishment. In a case like the present one
where the misconduct of the delinquent was
unauthorized absence from duty for six months
but upon being charged of such misconduct, the
fairly admitted his guilt and explained the
reasons for his absence by stating that he did
not have any intention nor desired to disobey
the order of higher authority or violate any of
the Company's Rules and Regulations but the
reason was purely personal and beyond his
control and, as a matter of fact, he sent his
resignation which was not accepted, the order of
removal cannot be held to be justified, since in
our judgment, no reasonable employer would
have imposed extreme punishment of removal
in like circumstances. The punishment is not
only unduly harsh but grossly in excess to the
allegations. Ordinarily, we would have sent the
matter back to the appropriate authority for
reconsideration on the question of punishment
but in the facts and circumstances of the present
case, this exercise may not be proper. In our
view, the demand of justice would be met if the
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Respondent No. 1 is denied back wages for the
entire period by way of punishment for the
proved misconduct of unauthorized absence for
six months."
16. Therefore, considering the disproportionate
penalty imposed which is grossly excess to the allegations
against the Respondent herein, the learned Judge has been
pleased to hold that, since the Respondent has already
attained the age of superannuation, the question of
reinstatement would not arise. However, it would be
appropriate to grant him compensation equivalent to 75% of
the wages payable to him from the date of dismissal upto the
date of superannuation.
17. Considering the arguments of respective counsel
and after going through the contents of the memo of Letters
Patent Appeal and the relevant documents, we do not find any
perversity in the interpretation of provisions of law or any
substantial question of law being raised in the present LPA.
The learned Single Judge has appropriately appreciated the
facts of the case and the prevailing laws applicable to the facts
of the case, and has given findings which calls for interference.
Hence, the LPA stands dismissed.
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18. While granting Rule in the present LPA vide Order
dated 16.01.2012, this Court has been pleased to grant interim
relief in terms of prayer clause (a) subject to the condition that
the backwages shall be deposited in the Court within six weeks
from the date of the said order. Accordingly, the backwages
have been deposited in this Court as per the statement made
by the learned counsel for the Appellant-Company.
19. In view of the dismissal of the present LPA, the
Respondent herein shall be entitled to withdraw the amount
deposited by the Appellant-Company with the interest
accrued.
20. In the wake of the disposal of the Letters Patent
Appeal, the Civil Application (CAL) No. 160 of 2011 does not
survive and is also disposed off.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
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