Bombay High Court
Dagadu Vasant Mudgal vs Maharashtra State Road Transport ... on 3 September, 2024
2024:BHC-AS:35948
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12210 OF 2024
Dagadu Vasant Mudgal
Age 56 years, Occ. Service
R/o Vadange, Tal. Karveer
Dist. Kolhapur ....Petitioner
V/S
Maharashtra State Road Transport Corporation
Kolhapur Division,
through its Division Traffic Superintendent,
M.S.R.T.C., Kolhapur - 416 001. ....Respondent
_________
Mr. S.R. Ganbawale a/w Mr. Kush M. Lahankar for the Petitioner.
Mr. Nitesh Bhutekar a/w Ms. Priyanka Lanke for Respondent-MSRTC.
__________
CORAM: SANDEEP V. MARNE, J.
DATE : 3 SEPTEMBER 2024.
ORAL JUDGMENT
1 Rule. Rule is made returnable forthwith. With the consent of the
learned counsel appearing for parties, the Petition is taken up for final hearing
and disposal.
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2 It must be observed at the very outset that entertainment of Complaint
by Labour Court challenging mere show-cause notice for imposition of
punishment has led to the unique conundrum in the present Petition.
Petitioner-employee faced disciplinary enquiry initiated vide a charge-sheet
dated 16 June 2009 involving various charges such as reselling of sold tickets,
shortage in cash, illegality in issuance of tickets etc. In the enquiry the charge
was held to be proved and show-cause notice was issued on 23 April 2011
proposing imposition of punishment of dismissal from service. Instead of
responding to the show-cause notice, Petitioner-employee was advised to file
Complaint (ULP) No.38 of 2011 before Labour Court, Kolhapur in which
following prayers were made:
"7. It is therefore prayed that the enquiry may be made and it may be
declared that respondent has engaged in unfair labour practice. The
respondent may be directed to cease and desist from engaging in unfair labour
practice and the complainant may be given relief as under:
a. The ad-interim relief as prayed for may be granted.
b. The respondent may be directed not to dismiss the
complainant as proposed.
c. The cost of this complaint may be awarded.
d. Any other just and equitable relief in favour of complainant
may be granted.
e. The complainant craves leave to add, alter and amend the
complaint as and when required."
3 Thus Petitioner-employee sought a vague prayer not to dismiss him
from service. The Complaint was not only entertained by the Labour Court,
but it proceeded to pass interim stay in favour of Petitioner-employee
restraining the Respondent-employer from imposing punishment in pursuance
of the show-cause notice dated 23 April 2011.
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4 The Labour Court thereafter framed preliminary issues relating to
fairness in the enquiry and perversity in the findings of the Enquiry Officer. It
is inconceivable as to how the Labour Court could have framed preliminary
issues relating to fairness of enquiry and perversity in the finding of Enquiry
Officer in a Complaint seeking mere restraint order from dismissal of the
Petitioner-employee. The disciplinary proceedings were still incomplete.
Disciplinary proceedings get completed only when final punishment is
imposed or when the employee is exonerated. In the present case, the
disciplinary proceedings were still pending when the Labour Court entertained
Complaint (ULP) No.38 of 2011 and proceeded to determine validity of such
enquiry and of findings of Enquiry Officer. By Part-I Award dated 1 January
2018, the Labour Court decided both the preliminary issues against Petitioner-
employee holding that the enquiry was fair and proper and that the findings of
the Enquiry Officer are not perverse. Petitioner-employee filed Revision
Application (ULP) No.59 of 2018 before Industrial Court, Kolhapur,
challenging the Part I Award and the Revision Application came to be
dismissed by the Industrial Court by order dated 8 February 2023. Petitioner-
employee challenged the said order of Industrial Court dated 8 February 2023
before this Court by filing Writ Petition No.4572 of 2023, which came to be
dismissed by clarifying that the Labour Court, while passing Part-II Award,
shall not be influenced by observations in respect of the alleged
misappropriation. The said clarification was issued on account of apprehension
expressed by the Petitioner-employee that though misappropriation is not a
part of charge, finding recorded by the Labour and Industrial Courts about
alleged misappropriation would be used by the Labour Court while passing the
Part II Award.
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5 The Labour Court has thereafter proceeded to deliver Part-II Award on
21 October 2023 dismissing the Complaint. In its Part-II Award, the Labour
Court has now dealt with the issue of proportionality of punishment by
altogether ignoring the fact that no punishment has yet to be imposed on the
Petitioner-employee. In absence of any actual punishment being imposed, the
Labour Court proceeded to determine proportionality of 'proposed
punishment'. The Labour Court has recorded following findings in paragraphs
9 and 10 of its Award dated 21 October 2023:
"9. Complainant is duly bound to prove that punishment given to him is
shockingly disproportionate. Not only disproportionate punishment but it is
shockingly. Once this Court held enquiry is legal and proper, cannot go into
the merits of the findings of the enquiry. This Court is under an obligation to
see whether punishment given to Complainant is shockingly
disproportionate. Adv. appearing on behalf of Respondent strongly relied on
D & A procedure. I have perused minutely D & A procedure. There are two
types of misconducts as well as two types of punishments. For minor
misconduct minor punishment will attract. Likewise for major and serious
misconduct Rule 7 (e) will apply. Rule 7(e) provides punishment of dismissal
or discharge. It is alleged that Complainant misappropriated amount of
Respondent. By way of judgment of Part-I and findings of this Court it is held
that procedure adopted by Respondent against the Complainant is legal and
valid. Once this Court form and opinion about the legality and perversity of
findings, should not be interfered in the process of punishment. Awarding or
inflicting punishment being solely discretionary powers vested on the part of
Respondent or employer.
10. As per D & A procedure for misappropriation, Rule 7(e) provides
dismissal or discharge from service. Respondent followed due procedure of
law while conducting enquiry against Complainant. Proposed punishment of
dismissal is also not shockingly disproportionate. The proposed punishment is
as per D & A procedure therefore this Court cannot restrict, forbid or prohibit
Respondent to inflict or award lesser or higher punishment. As early said
awarding and inflicting punishment is part of discretion of Respondent. As
per D & A procedure enquiry is conducted. Complainant found guilty
Enquiry is legal and there being no perversity in the findings. Therefore,
Complainant is not entitled any kind of relief. Complainant failed to prove
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that Respondent has engaged in unfair labour practices and proposed
punishment is shockingly disproportionate. Complainant is not entitled for
any relief as sought."
6 The Award passed by the Labour Court dismissing the Complaint has
been confirmed by the Industrial Court by dismissing Revision Application
(ULP) No.73 of 2023. Aggrieved by the decisions of Labour and Industrial
Court, Petitioner-employee has filed the present Petition.
7 I have heard Mr. Ganbawale, the learned counsel appearing for
Petitioner and Mr. Bhutekar, the learned counsel appearing for Respondent-
MSRTC.
8 As observed above, the unique situation is created in the present case on
account of entertainment of the Complaint by the Labour Court relating to the
prayer for injuncting Respondent-employer from dismissing Petitioner-
employee. In my view, once the enquiry is held, charge is proved and show-
cause notice is issued, the Respondent-employer must be permitted to take the
disciplinary proceedings to its logical end by passing appropriate final order.
By show cause notice dated 23 April 2011, Petitioner-employee was merely
directed to make a representation against the proposed punishment. There is
no reason for inferring that Respondent-employer would impose only the
punishment suggested in the show cause notice. If the Petitioner-employee
was to file Reply to the show-cause notice, final decision would have been
taken by the Disciplinary Authority and in the event of such final decision is
adverse to Petitioner-employee, cause of action would have arisen for him to
challenge the said punishment order by filing the substantive Complaint
before the Labour Court. However, the action of the Petitioner-employee in
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rushing to the Labour Court at the interlocutory stage of the disciplinary
proceedings and entertainment of such half-baked Complaint by the Labour
Court has given rise to unique problem in the present case.
9 The unique problem which prevails today in the case is that though the
disciplinary proceedings are yet to be complete, the Labour Court and the
Industrial Court have not only upheld the enquiry, findings of Enquiry Officer
but also the proposed punishment. Thus even before completion of the
enquiry and passing of any final order, the Labour Court's jurisdiction was
invoked for seeking a certificate of fairness in the enquiry and absence of
perversity in the findings of the Enquiry Officer. Ordinarily the said
preliminary issues can be gone into only in a substantive Complaint
challenging the final order of punishment. To put a premium on the
irregularities, the Labour Court has decided the issue of proportionality in
absence of any punishment being imposed on the Petitioner-employee.
Deciding the issue of proportionality in respect of non-existent penalty is
grossly inappropriate. After receiving representation from Petitioner-employee
to the show-cause notice, it is for the Disciplinary Authority to take
appropriate decision in the case. It is when final penalty order is issued, the
issue of proportionality of such penalty can be gone into.
10 This Court is of the view that the Respondent-employer has inherent
right of punishing the Petitioner-employee against whom charge in the
disciplinary enquiry is held to be proved. An industrial adjudicator cannot
intervene the proceedings and prevent the Respondent-employer from taking
the disciplinary proceedings to their logical end. In my view therefore, the
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Respondent-employer must be permitted to pass a final order in pursuance of
show-cause notice dated 23 April 2011. However, on account of adjudication
of issues relating to fairness of enquiry and perversity in the findings of the
Enquiry Officer, it becomes questionable as to whether Petitioner-employee
can be permitted to raise the very same issue once again in the event any
adverse penalty is imposed on him in pursuance of the show cause notice.
Such a course of action would obviously tantamount adjudication of same
issue twice. This is the reason why the Labour Court ought to have avoided
entertainment of the Complaint during pendency of disciplinary proceedings
and ought to have allowed the Respondent-employer to pass a final order in
pursuance of the show cause notice.
11 The next issue is the course of action to be adopted in the light of
unique facts and circumstances of the present case. Part I Award relating to
fairness in the enquiry and perversity in the findings of the Enquiry Officer
has already attained finally upto this Court. The only issue remained was about
correctness of the penalty that would be imposed on the Petitioner-employee.
In the light of these unique facts and circumstances of the case, in my view, the
Respondent-employer can be permitted to pass a final order in pursuance of
show cause notice dated 23 April 2011 and in the event punishment of
dismissal is imposed, the Petitioner-employee can be permitted to challenge
the same only to the extent of correctness of such punishment as well as
proportionality thereof. The issues of fairness in the enquiry and perversity in
the findings of Enquiry Officer, which have already attained finality, need not
be reopened again.
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12 Mr. Ganbawale would submit that Petitioner-employee is left with two
years of service before his retirement. He would further submit that there is no
charge of misappropriation in the charge-sheet and that therefore dismissing
him at this belated stage would result in gross injustice to him. In my view, all
these points can be agitated by the Petitioner-employee while replying the
show cause notice dated 23 April 2011. Merely because of punishment of
dismissal is suggested in the show-cause notice dated 23 April 2011, it is not
necessary that the Disciplinary Authority is bound to impose the suggested
punishment. The Disciplinary Authority is required to take into consideration
the representation made to the show cause notice by the Petitioner-employee
and consider all the points raised therein, including the point of necessity to
the punishment of dismissal as this stage in the light of his retirement in
offing.
13 The Writ Petition is accordingly disposed of by permitting the
Respondent-employer to pass a final order in pursuance of show-cause notice
dated 23 April 2011. Petitioner-employee shall file Reply to the show-cause
notice within a period of four weeks from today. The final order shall be
passed by the Disciplinary Authority after taking into consideration points
urged by the Petitioner-employee in reply to the show-cause notice. In the
event any adverse punishment is imposed on him by the Disciplinary
Authority, he would be at liberty to challenge the same in a fresh Complaint.
While deciding such Complaint, the scope thereof shall be restricted only to
the issue of proportionality of penalty and correctness thereof. While deciding
the said issue of proportionality and correctness of penalty, nothing observed
in Part II Award dated 23 October 2023 by the Labour Court and in the order
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dated 5 August 2024 passed by the Industrial Court would be considered. All
the points of both sides on the issue of proportionality and correctness of
penalty are expressly kept open.
14 With the above observations, the Writ Petition is disposed of. Rule is
made absolute.
(SANDEEP V. MARNE, J.)
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2024.09.06
16:52:52 +0530
