Bombay High Court
Masina Hospital vs Meena Kelshikar And Ors on 25 February, 2025
2025:BHC-AS:8807
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8816 OF 2024
Masina Hospital
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027. ....Petitioner
V/S
1 Harish Makawana
2 Sunil Rane
3 Mukesh Devalekar
4 Minnat Ansari
5 Madhukar Shinde
C/o Sangharsh Sadhana Bldg.
'B' Wing, Second Floor
Room No.216,
Anna Ganpat Pawar Marg,
Byculla, Mumbai - 400 027.
6 Mr. Vispi Jokhi,
Medical Director
Masina Hospital,
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027.
7 The Hon'ble Member
Industrial Court,
New Administrative Building
Opposite Chetna Building
Government Colony
Bandra (E), Mumbai - 400 051. ....Respondents
WITH
WRIT PETITION NO.8819 OF 2024
Masina Hospital
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027. ....Petitioner
V/S
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1 Suhas Kisan Pawar
2 Ramesh Aatmaram Sahil
3 Santosh Chattu Sharma
4 Sadhana Jitendra Deolekar
5 Sushila Ambalal Waghela
6 Savita Shivaji More
7 Nayana Ramesh Rathod
8 Kavita Chandrakant Masankar
C/o. Aadarsh Samata Nagar
Behind BMC School
Near Bhaji Market,
Mulund Colony
Mulund (West), Mumbai 400 082.
9 Mr. Vispi Jokhi,
Medical Director
Masina Hospital,
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027.
10 The Hon'ble Member
Industrial Court,
New Administrative Building
Opposite Chetna Building
Government Colony
Bandra (E), Mumbai - 400 051. ....Respondents
WITH
WRIT PETITION NO.8814 OF 2024
Masina Hospital
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027. ....Petitioner
V/S
1 Sanjay Balmiki
2 Babajan Shaikh
3 Shailesh Shinde
C/o. Masina Hospital
Staff quarter Room No.A/9
Sant Savta Marg, Byculla (E)
Mumbai - 400 027.
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4 Mr. Vispi Jokhi,
Medical Director
Masina Hospital,
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027.
5 The Hon'ble Member
Industrial Court,
New Administrative Building
Opposite Chetna Building
Government Colony
Bandra (E), Mumbai - 400 051. ....Respondents
WITH
WRIT PETITION NO.8813 OF 2024
Masina Hospital
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027. ....Petitioner
V/S
1 Krishna Shinde
2 Suryakant Shirodkar
3 Shivaji More
C/o. Masina Hospital
Staff quarter Room No.A/9
Sant Savta Marg, Byculla (E)
Mumbai - 400 027.
4 Mr. Vispi Jokhi,
Medical Director
Masina Hospital,
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027.
5 The Hon'ble Member
Industrial Court,
New Administrative Building
Opposite Chetna Building
Government Colony
Bandra (E), Mumbai - 400 051. ....Respondents
WITH
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WRIT PETITION NO.8817 OF 2024
Masina Hospital
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027. ....Petitioner
V/S
1 Sharda K. Solanki
2 Laxmi Rajkumar Singh
C/o Jay Malahar Apartment
Ganesh Nagar, Diva (E)
Thane - 400 642
3 Mr. Vispi Jokhi,
Medical Director
Masina Hospital,
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027.
4 The Hon'ble Member
Industrial Court,
New Administrative Building
Opposite Chetna Building
Government Colony
Bandra (E), Mumbai - 400 051. ....Respondents
WITH
WRIT PETITION NO.8821 OF 2024
Masina Hospital
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027. ....Petitioner
V/S
1 Meena Kelshikar
2 Rupesh Raghunath Mali
C/o. Chawl No.20,
Karmvir Dadasaheb Gaikwad Nagar
Chembur, Mumbai - 400 089.
3 Mr. Vispi Jokhi,
Medical Director
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Masina Hospital,
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027.
4 The Hon'ble Member
Industrial Court,
New Administrative Building
Opposite Chetna Building
Government Colony
Bandra (E), Mumbai - 400 051. ....Respondents
WITH
WRIT PETITION NO.8797 OF 2024
Masina Hospital
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027. ....Petitioner
V/S
1 Sandeep Ghanekar
2 Subash Gurav
3 Rajendra Borade
C/o. Vithal Krupa, Room No.2.
Sonar Pada, Near Shankar Vidhyalay
Kalyan Shill Road, Dombivali East
Mumbai - 400 672.
4 Mr. Vispi Jokhi,
Medical Director
Masina Hospital,
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027.
5 The Hon'ble Member
Industrial Court,
New Administrative Building
Opposite Chetna Building
Government Colony
Bandra (E), Mumbai - 400 051. ....Respondents
WITH
WRIT PETITION NO.8798 OF 2024
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Masina Hospital
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027. ....Petitioner
V/S
1 Standley Willam Sure
2 Mahendra Walmiki
3 Hemant Solanki
4 Dinesh Chavan
5 Prakash Pawar
C/o Masina Hospital
Staff quarter Room No.A/9
Sant Savta Marg, Byculla (E)
Mumbai - 400 027.
6 Mr. Vispi Jokhi,
Medical Director
Masina Hospital,
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027.
7 The Hon'ble Member
Industrial Court,
New Administrative Building
Opposite Chetna Building
Government Colony
Bandra (E), Mumbai - 400 051. ....Respondents
WITH
WRIT PETITION NO.8820 OF 2024
Masina Hospital
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027. ....Petitioner
V/S
1 Satish Kadam
2 Ashok Kadam
3 Gangaram Barge
C/o Shivganga Housing Society
Near Gokul Banglow, Aajde Pada,
Dombivali (W), 421 209.
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4 Mr. Vispi Jokhi,
Medical Director
Masina Hospital,
St. Savta Marg, Mustafa Bazar,
Byculla East, Mumbai 400 027.
5 The Hon'ble Member
Industrial Court,
New Administrative Building
Opposite Chetna Building
Government Colony
Bandra (E), Mumbai - 400 051. ....Respondents
_________
Mr. Sudhir Talsania, Senior Advocate i/b Mr. Pawan Patil for the
Petitioner.
Mr. L.R. Mohite with Ms. Harshali Mohite for Respondents.
__________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 17 FEBRUARY 2025.
PRONOUNCED ON : 25 FEBRUARY 2025.
JUDGMENT:
1) Petitioner-employer has filed the present Petitions challenging
the judgments and orders dated 9 January 2024 passed by the Member,
Industrial Court, Mumbai, allowing the Revision Applications filed by the
Respondent-employees and setting aside the order dated 18 August 2022
passed by Labour Court, by which the Labour Court had held that the
enquiry was fair and proper and that the findings of the Enquiry Officer
are not perverse. The net result of the impugned orders passed by
Industrial Court is that the preliminary issues relating to fairness in the
enquiry and perversity in the findings of Enquiry Officer are answered
against the Petitioner and in favour of the Respondent-employees.
2) Petitioner is a Charitable Hospital, which is managed by a
Trust. The Respondent-employees were employed in Class-IV categories in
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the hospital. They were initially represented by Mumbai Labour Union. In
the year 2010, some of the workmen in the Petitioner-Hospital joined
Maharashtra Navnirman Kamgar Sena (MNKS) resulting in rift between
the two Unions. It is the case of the Petitioner that on 9 February 2015, a
committee member of MNKS Mr. Rupesh Mali-Wardboy was caught red-
handed committing theft and was suspended from work for four days from
11 December 2015 to 15 December 2015. Petitioner-employer alleges that
in view of suspension of the said committee member, the Respondent-
employees created ruckus in the hospital premises on 11 December 2015
and physically assaulted Mr. Vinayak Kulkarni (Personal and Admin
Officer) and Mr. Vidhyadhar H. Nare (Accountant) with iron rods and also
hurled abuses and threats to them. It is alleged that Mr. Kulkarni was
grievously hurt while Mr. Nare suffered minor injuries and both were
required to be hospitalized. An FIR was lodged against 35 workmen
involved in the alleged assault on 11 December 2015. Mr. Nare later
reported loss of personal cash of Rs.5,000/- and hospital cash of Rs.10,000/-.
The Petitioner-employer accordingly suspended the 35 workmen involved in
the incident with effect from 15 December 2015 and initiated domestic
enquiries against them. Charge-sheets dated 9 February 2016 were issued
to them. Petitioner-Hospital nominated enquiry officers to conduct
enquiries against the 35 charge-sheeted employees. The enquiry was
conducted jointly in groups of workmen by independent enquiry officers.
According to the Petitioner-Hospital, the enquiries were conducted after
following the principles of natural justice by affording due opportunity of
defence to the Respondent-employees. The enquiry officers submitted
reports holding that the charges were proved. Enquiry Reports were served
on the Respondent-employees calling for their explanation. The Petitioner-
Management thereafter imposed the punishment of dismissal on the
Respondent-employees.
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3) The Respondent-employees filed various complaints of unfair
labour practice before Labour Court under Section 28 of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour Practices
Act, 1971 (MRTU & PULP Act). Petitioner-Management filed its written
statements. The Labour Court framed preliminary Issue No.1 relating to
fairness in the enquiry and Issue No.2 about perversity in the findings of
Enquiry Officer. It appears that during the course of hearing on the
preliminary issues, the concerned Respondent-employees got acquitted in
the criminal case vide judgment and order dated 23 October 2019 passed
by the Court of Metropolitan Magistrate. After hearing the rival parties,
the Labour Court proceeded to answer both the preliminary issues in
favour of the Petitioner-Management and against the Respondent-
employees holding that the enquiry is fair and proper and that findings of
the enquiry officer are not perverse by its orders dated 18 August 2022.
4) The Respondent-employees challenged orders dated 18 August
2022 passed by the Labour Court by filing Revision Applications before the
Industrial Court. The Revision Applications have been allowed by the
Industrial Court by setting aside the orders on preliminary issues passed
by the Labour Court on 18 August 2022. The orders passed by Industrial
Court on 9 January 2024 passed in Revision Applications filed by
Respondent-employees are subject matter of challenge in the present
petitions filed by the Petitioner-employer.
5) I have heard Mr. Talsania, the learned Senior Advocate
appearing for the Petitioner-employer, who would submit that the Labour
Court had correctly decided both the preliminary issues in favour of the
Petitioner-employer and against the Respondent-employees. He would
submit that the enquiry has been conducted by affording due opportunity
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of defence to the Respondent-employees. He would take me through various
findings recorded by the Labour Court to demonstrate as to how the
enquiry is conducted by offering due opportunity of defence and how the
findings of the enquiry officer are supported by evidence on record. He
would then criticize the findings recorded by the Industrial Court to
demonstrate as to how the said findings are perverse. He would submit
that mere technical violations sought to be highlighted by the Industrial
Court could not be the reason for answering the preliminary issue No.1
against the Petitioner-Management. That the Respondent-employees ought
to have demonstrated cause of some prejudice to them and in absence of
any prejudice being caused, it was impermissible to hold that the domestic
enquiry is vitiated. In support, he would rely upon judgment of the Apex
Court in Chairman, State Bank of India and another vs. M.J. Jains,
2022 (2) SCC 301. So far as the findings of the Industrial Court on
preliminary issue No.2 relating to perversity in the findings are concerned,
Mr. Talsania would submit that there is direct evidence available on record
in the form of deposition of Mr. Kulkarni and Mr. Nare. That mere
acquittal of an employee in domestic enquiry does not automatically render
the findings recorded in the domestic enquiry non-est. That the employees
are otherwise acquitted by giving benefit of doubt and that there is no
acquittal. He would therefore submit that the Industrial Court has grossly
erred in reversing well-considered decision of the Labour Court and would
accordingly pray for setting aside the orders of the Industrial Court.
6) The petitions are opposed by Mr. Mohite, the learned counsel
appearing for Respondent-employees. He would submit that the Industrial
Court has considered the manner in which the entire enquiry is conducted
in gross violation of principles of natural justice. That conduct of entire
enquiry is mere formality since the conclusions were premeditated. He
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would submit that all the Respondent-employees have been ultimately
acquitted in the criminal trial in which they faced same charge and the
same evidence was examined. He would therefore submit that due
weightage is required to be given to the findings recorded by the Criminal
Court and therefore the finding of enquiry officer in domestic enquiry,
which are diametrically opposite to the one recorded by the Criminal
Court, cannot be allowed to stand. He would submit that no evidence is
produced before the enquiry officer about assault committed by use of iron
rod. That the photographs do not show presence of iron rod or use of
kerosene as falsely alleged in the chargesheet. That the employees were not
given due opportunity of defence by not providing them an Advocate once it
was found that the Union was not supporting them. That on account of
non-provision of an Advocate, Respondents were unable to cross-examine
the witnesses being merely Class-IV employees. That they were not paid
subsistence allowance or even medical facilities during pendency of the
enquiry. He would rely upon judgment of Apex Court in Director BCG
Vaccine Laboratory, Madras vs. S. Pandian & Ors. 1 Lastly Mr. Mohite
would submit that no prejudice is otherwise caused to the Petitioner-
employer on account of passing of impugned orders by the Industrial Court
as the Petitioner-employer would have an opportunity of justifying its
action by leading evidence before the Labour Court. He would accordingly
pray for dismissal of the Petitions.
7) Rival contentions of parties now fall for my consideration.
8) The Respondent-employees faced grave charges of assaulting
Mr. Vinayak Kulkarni with iron rod and pouring upon him kerosene and
oil paint. The chargesheet also included allegation of committing assault on
1 Civil Appeal Nos. 2093-96/1990 decided on 24 April 1996.
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Accountant Mr. Nare. The chargesheet alleged that the assault was
committed on account of issuance of suspension letter to hospital employee-
Mr. Rupesh Mali. The charge-sheet also gives account of abusive language
and threats issued to Mr. Kulkarni and Mr. Nare. In addition to domestic
enquiry, it appears that FIR was also lodged against the concerned
employees. Mr. Kulkarni was apparently treated at JJ Group of Hospitals
and was issued an injury certificate showing absence of any external
injury. Similar injury certificate was also issued to Mr. Nare. The
Respondent-employees were placed under suspension. In the domestic
enquiry, the Petitioner-employer examined Mr. Vinayak Kulkarni and Mr.
Vidyadhar Nare as its witnesses. However, it appears that the Respondent-
employees did not conduct cross-examination of the said two witnesses on
the ground that they were not provided with defence representatives. On
the strength of evidence of Mr. Kulkarni and Mr. Nare, the charges are
held to be proved against the Respondent-employees by the enquiry
officers.
9) So far as the preliminary issue No.1 relating to fairness in the
enquiry is concerned, the Labour Court recorded following findings:
32. Ld. Advocate for both sides also adduced written argument. I have
gone through the written argument and found repetition of oral argument
mentioned in written argument. After going through the argument from
both sides I have carefully gone through the enquiry papers and other
documents available on record and found that while conducting
enquiry at initial stage that was conducted in English language with
endorsement which reveals that all the contents were explained to the
workers in Marathi language. Thereafter, workers made application to
conduct enquiry in Marathi language and accordingly enquiry was
conducted in Marathi language. Respondents adduced its witness and at
that time enquiry officer asked to workers for cross examination which
was denied, after closing evidence of respondents, Enquiry officer called
workers to adduce evidence, at that time workers were denied to adduce
evidence. From the entire papers of enquiry, it appears that time to time
workers filed application for getting appointment of advocate on the
expenditure of respondents, but from the pleadings of the complainants
itself, it appears that till the starting of enquiry they were active members
of Maharashtra Nav Nirman Kamgar Sena, and time to time MNKS filed
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litigations before Hon'ble Industrial Court and respondents claiming
various reliefs for the benefits of workers.
33. On 26/07/2016 MNKS union filed complaint application before Police
Commissioner at Fort, Mumbai stating that workers were going to Hunger
Strike till death alleging that on 11/12/2015 worker's complained to
Byculla Police Station for giving complaint against Mr.Vinayak Kulkarni,
Mr.Nare Mr.Santosh Nikam to police did not take serious cognizance.
Record shows that previous to 26/07/2016 already departmental enquiry
was going on. Ld. Advocate for complainants also produced one letter
dated 27/11/2020 to show that workers were not represented by any union
which is addressed to Management. I have gone through the letter and
found that workers of Masina Hospital sent letter to respondents stating
that they were not representing by any union, but as the letter bears date
27/11/2020 that can not be considered to decide the position of workers at
the time of carrying departmental enquiry. On the contrary letter MNKS
union dtd.26/07/2016 clearly reveals that till 26/07/2016 workers were
represented by the MNKS Union and during pendency of enquiry MNKS
Union represented workers before Police Commissioner by filing
representation regarding to facts involved in departmental enquiry
carried by Masina Hospital there is no explanation adduced as to why
representative of MNKS union was not represents the workers
when,during that period and time the said union represents the workers
before other authority by raising same issue. Hence, I do not found
substance in the argument of Ld. Advocate Shri Mohite that during period
of enquiry workers were not represented by any union, therefore, it is
required to Masina Hospital to arrange payment of fees for engaging
lawyer for workers to represent their side. Therefore, in my humble
opinion decision cited in Director BCG Vaccine Laboratory, Madras
V/s. S. Pandian & Ors, and Sandvik Asia Ltd. V/s. Sandvik
Asia Employees' Union and others, will not be applicable to the
facts of present case.
34. Complainants come with case that they are acquitted in Criminal Case
No.575/PW/2016 regarding to same incidence upon which respondents
carried departmental enquiry, and the said judgments will be binding and
findings of enquiry officer will not be applicable, hence order of dismissal
is vitiated decision and liable to set aside. Moreover enquiry officer
carried enquiry on the basis of bias decision in favour of respondents. He
did not consider the facts that 35 workers can not be able to utter same
words on same time. It is the allegations upon workers that 35 workers
beaten to employee of respondents that's are Mr. Vinayak Kulkarni and
Mr.Nare by iron rod, if in reality such incidence occurred, it will be
impossible to relieve them on same day or next day without having any
serious injury on their body.
35. I have carefully gone through the judgment passed by Metropolitan
Magistrate and found that during discussion the Ld. Metropolitan
Magistrate held that, "the prosecution not proved according to
provisions of law. On perusal of evidence of prosecution witness is
there is veriance regarding to number of accused involved in the
commission of offence and evidence brought on record by the prosecutor,
therefore benefits of doubt is always goes in favour of accused." From
the contents of judgement it appears that, the Ld. Metropolitan
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Magistrate acquitted the workers by giving benefits of doubt and there is
not at all any findings regarding to happening or non happening of the
incidence. I have carefully gone through the enquiry papers and found that
enquiry officer had considered the contents of CD and gave opportunity to
cross examine the witness produced by the Masina hospital. He also
narrated contents of proceeding which was carried in English
language in Marathi language to workers and there is no complaint found
that any worker did not understand the translation of contents in
Marathi language of the proceeding which carried in English. Thereafter,
proceeding was carried in Marathi language in presence of all workers
and time to time gave opportunity to each worker for participating in
the enquiry, for cross examination, for adducing evidence, but on each
occasion workers denied to carry cross examination and to adduce
evidence, therefore I come to the conclusion that enquiry officer carried
proper domestic enquiry by giving fair opportunity to the workers,
therefore, in my humble opinion decision in (1)Sur Enamel and
Stamping Works (P) Ltd. V/s.Their Workemen AIR 1963 (SC) Page
367,(2)The Chairman, Board of Mining Examinaton and Chief
Inspector of Mines and Anr. V/s. Ramjee, AIR 1977 (SC) 965,
(3)Ramesh Chand V/s. L.D.Malik & Anr.1986(52)FLR 629,(4)Bank of
India V/s. Apurba Kumar Saha III 1995 BC13(SC), (5)State Bank of
India and Ors. V/s. Atindra Nath Bhattacharyya and Ors.2019 AIR
(SC)4777 will be applicable to the facts of present case.
36. The decision in Karnataka Power Tansmission Coporation
Ltd. Rep. by Managing Director (Admin. And HR) V/s. C.
Nagaraju & Anr. 2020 I CLR page 18 will not be
applicable to the facts of present case as in that matter acquittal was
considered on the ground of prosecution witness turned hostile, and from
the facts of the said decision, it is clearly appears that the disciplinary
authority is not bound by the judgment of Criminal Court.
37. Therefore, I come to the conclusion that enquiry officer conducted
enquiry in fair, legal and proper by giving equal opportunity to
both sides. Therefore, I answer issue no.1 in affirmative.
10) The Labour Court thus held that the enquiry was conducted in
Marathi language as per the request of the Respondent-employees. It
further observed that despite grant of an opportunity to cross-examine the
Petitioner-Management witnesses, the employees refused to conduct their
cross-examination nor did they lead their own evidence. The Labour Court
further held that the demand of the Respondent-employees for provision of
services of Advocate at the expenses of the Petitioner-employer was
unfounded. It held that Respondent-employees were active members of the
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MNKS and that the said Union had filed litigations before the Industrial
Court for benefit of the said Respondent-employees. Labour Court also took
note of the fact that the said Union has filed complaint before the police
threatening hunger strike by the Respondent-workers on 26 July 2016. It
held that the enquiry had commenced much before 26 July 2016 showing
thereby that the Respondent-employees were well represented by the said
Union. Thus, the very pretext of non-representation by Union cited by the
Respondent-employees for engagement of Advocate at expenditure of the
employer is found to be false by the Labour Court. The Labour Court
observed that the Union was conveniently representing the Respondent-
employees by giving notice of hunger strike and deliberately shied away
from defending them before the enquiry officer.
11) The Industrial Court has however recorded following findings for
holding the enquiry to be unfair:
38. .... It appears that, Ld. Labour Court failed to consider that, enquiry
officer on the very first day of enquiry i.e. on 22.03.2016 started to conduct
enquiry without giving opportunity to revision petitioners for filing of their
reply/representation to charge-sheet. The said action of enquiry officer is
in violation of the principal of natural justice but Ld. Labour Court failed
to consider the same. So, also enquiry officer without the consent of
revision petitioners on his own accord taken the decision of conducting
enquiry of all delinquents/revision petitioners jointly without explaining
the procedure about conducting the said enquiry. The enquiry officer is not
empowered to adopt the procedure of copy-paste without giving
opportunity of cross examination to each delinquent/revision petitioners.
The aforesaid conduct of the enquiry officer clearly shows that he was
acting with bias mind in the interest of management of respondent
hospital. But the Ld. Labour Court failed to consider the aforesaid conduct
of enquiry officer. So also, the enquiry officer failed to understand the
procedure of enquiry to delinquents/revision petitioners in the language
which understand to them as well as in enquiry report nowhere mentioned
that enquiry proceeding which started on 22.03.2016 has explained to
delinquents/revision petitioners. The said aspects are also not considered
by Ld. Labour Court while passing impugned order. Ld. Labour Court
failed to consider that, enquiry officer is not taken cognizance of the
letter/application of revision petitioners dated 31.03.2016 in respect of
requesting to issue show cause notice in Marathi language due to they are
not understanding anything. The said aspect is also not considered by Ld.
Labour Court while passing the impugned order.
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39. Further, appears that, enquiry officer on 05.04.2016 conducted enquiry
in absence of one of the revision petitioner namely Sushila Ambalal
Waghela inspite of her letter dated 05.04.2016 which is vide Exh. 26. So
also, enquiry officer not providing enquiry proceeding of the said day to
said Smt. Waghela, though, it is obligatory on the part of the enquiry
officer. On the contrary, enquiry officer adjourned the enquiry proceeding
on the ground of giving opportunity to management representative (MR)
for submitting reply to Exh. 11 dated 31.03.2016. The said conduct of the
enquiry officer shows that, enquiry officer violated principal of natural
justice and conducted enquiry in collusion with management of
respondent Hospital.
40. Further, appears that, on 19.04.2016, enquiry officer conducted
enquiry in absence of Santosh Chottu Sharma and Savita Shivaji More
who are revision petitioners and even not supplied enquiry proceeding of
that day to said Sharma and More. The said conduct of the enquiry officer
also shows that he violated the principal of natural justice and conducted
enquiry in collusion with management of respondent Hospital. The
enquiry officer gave whatever reasoning in respect of conducting enquiry
jointly is not proper and contrary to the provisions of law. The enquiry
officer while giving decision on Exh. 11's application observed that, he has
given sufficient opportunity to revision petitioners to engage defence
representative which can be their collogue, office bearer of the union. But
mentioned contrary statement of management representative (MR) by
stating that management representative has given no objection for
engaging advocate. The above-mentioned irregularity/ illegalities which
appears from enquiry report are not considered by Ld. Labour Court while
passing impugned order.
41. Again it appears that, learned labour court while passing impugned
order fails to consider that, concern employees / revision petitioner are
though member of MNS (Union). But the said union is not supporting to
revision petitioners on any counts. Hence in view of guidelines and
observation of Hon'ble Supreme Court and Hon'ble Bombay High court.
Which laid down in the judgment of Director, BCG Vaccine vs. S
Pandian and others reported in 1996 II LLJ 634 (SC), Sandvik Asia
Ltd. vs. Sandvik Asia Employees Union and Others reported in
2002 I CLR 99 (Bombay HC), failed to observe that, enquiry officer
committed error while rejecting application of revision petitioners for
appointing defence Counsels on behalf of them and the cost of said
counsels bears by management of respondent hospital. Because revision
petitioner are/were class IV employees/workmen and they are/were under
suspension while enquiry is going on. As well as revision petitioner are not
having any other source of income.
42. Again appears that, on 19.04.2016, revision petitioners submitted one
application alongwith copy of judgment of Hon'ble Supreme Court which
decided on 24.04.1996 for requesting the enquiry officer to issue direction
to the management of respondent Hospital for continuing medical
facilities. As well as in view of another application on same day vide
Exh.30, revision petitioners requested to conduct enquiries of revision
petitioners individually. But enquiry officer while conducting enquiry
stated that, he has no jurisdiction to decide the issue of continuing medical
facilities on basis of submission of management representative (MR) of
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respondent Hospital. The said conclusion of enquiry officer shows that, he
was acting as an agent of the management of respondent Hospital and in
the interest of management without bothering to put-up the said issue
before management for consideration even on humanitarian ground.
Because, it is a legal right of revision petitioner to enjoy existing medical
facilities which are available to them as they were only kept under
suspension and employer-employee relationship is in existence. So also,
management of respondent Hospital failed to pay subsistence allowance to
revision petitioners. But, the Ld. Labour Court while passing impugned
order failed to consider above mentioned bias conduct of the enquiry officer
which gave benefit to management of respondent Hospital. The enquiry
officer on application of revision petitioners vide Exh. 30 gave whatever
reasoning is illegal. Again enquiry officer on 28.11.2016 conducted the
enquiry in absence of one of the revision petitioner namely Sadhna
Dewlekar, but recorded in the proceeding all the delinquents were present.
The application vide Exh. 42 dated 28.04.2016 of the revision petitioner in
respect of changing the enquiry officer, enquiry officer conducted the
enquiry with predetermined manner and conducted enquiry by using his
personal knowledge and information in respect of revision petitioners. The
above mentioned lacuna which appears in enquiry report are not
considered by Ld. Labour Court while passing impugned order.
43. Further, carefully gone through the enquiry report, it appears that, on
28.04.2016, enquiry officer failed to direct respondent hospital for
providing medical facilities to father of Ms. Kavita Mansavkar who
suffering from heart problem and cancer decease. The letter of said Kavita
is at Exh. 45. The said application of Ms. Kavita rejected by enquiry officer
without referring it to the management of respondent's hospital. So also,
enquiry officer has not supplied copies of enquiry proceeding to revision
petitioners which is held on 28.04.2016. The enquiry officer rejected the
application dated 28.04.2016 of revision petitioners which is vide Exh. 44
for demanding CCTV footage of respondent hospital in respect of enquiry
conducted on certain dates and time. The enquiry officer on 08.06.2016,
taken on record certain documents produced by the management, but in
enquiry report nowhere mentioned that the copies of said documents have
been supplied to the revision petitioners as well as not provide that
documents to the revision petitioners. On the contrary, recorded the
evidence of witness of management without supplying copies of said
documents which are vide Exh. 62 & 63. So also, completed the testimony
of the witnesses of management of the Respondent Hospital only
mentioning that revisions petitioners refused/declined to conduct the cross
examination of concerned witnesses. Thus, in view of above
method/conduct of enquiry officer appears that, though enquiry officer
given opportunity to revision petitioner for conducting cross examination
of concern witnesses, then also appears that the said enquiry proceeding is
going on ex-parte. The aforesaid conduct of the enquiry officer disclose
that, he had violated principal of natural justices and acted in collusion
with management of respondent Hospital. The above-mentioned
irregularities/error or illegalities which committed by the enquiry officer
while conducting the enquiry are not considered by Ld. Labour Court
while passing impugned order.
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12) The first reason recorded by the Industrial Court for setting
aside the orders passed by Labour Court is commencement of enquiry
without giving an opportunity to the Respondent-employees for filing their
reply/representation to the chargesheet. In the case of Sanjay Balmiki and
others (Writ Petition No.8814 of 2024), the Industrial Court held the first
date of enquiry was 22 March 2016. However, the chargesheet was issued
to the concerned Respondent-employees on 9 February 2016. Thus,
sufficient opportunity was provided for filing reply to the chargesheet.
Perusal of the enquiry proceedings would indicate that what was done on
22 March 2016 was only preliminary enquiry. The finding of the Industrial
Court about failure to grant an opportunity to file Reply/representation is
thus perverse.
13) The second reason recorded by the Industrial Court for setting
aside Labour Court's orders is joint conduct of enquiry and the Industrial
Court has criticized the Enquiry Officer for adopting copy-paste proceeding
without giving an opportunity of cross-examination to each delinquent
employees. Here the issues of conduct of joint enquiry and grant of
opportunity of cross-examination are mixed up by the Industrial Court. I
do not see any prohibition on the part of an employer to conduct joint
enquiry, if the charges and evidence is similar. Mere conduct of joint
enquiry does not mean that opportunity of cross-examination is denied to
the concerned employees. Therefore, the finding that the Enquiry Officer
was acting with bias in his mind, merely because joint inquiry is
conducted, is totally unsustainable and perverse.
14) The next reason cited by the Industrial Court is about non-
conduct of enquiry in the language understood by the Respondent-
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employees. However, Labour Court has recorded a finding of fact that the
enquiry was conducted in Marathi language but proceedings were recorded
in English. In the light of the position that the Respondent-employees
refused to cross-examine the witnesses despite affording an opportunity to
do so would indicate that the allegation of maintaining proceeding of an
enquiry in English language has otherwise not caused any prejudice to the
Respondent-employees.
15) The Industrial Court has further held that the enquiry was
conducted in absence of some of the employees. However, what must be
borne in mind is the fact that all the Respondent-employees have refused to
avail opportunity of cross-examining the witnesses by citing the pretext of
lack of representation by the Union. Therefore, mere absence of one of the
delinquent employees during the course of conduct of joint enquiry has not
really caused any prejudice to the Respondent-employees.
16) Another reason cited by the Industrial Court for holding
enquiry to be unfair is denial of medical facility to the Respondent-
employees during the conduct of enquiry. I fail to understand as to how the
Enquiry Officer was supposed to ensure extension of medical facilities to
the delinquent employees or their family members. Extension of medical
facilities has absolutely nothing to do with the conduct of enquiry or grant
of opportunity of defence to the Respondent-employees.
17) In my view, the reasons recorded by the Industrial Court for
setting aside the findings of Labour Court on preliminary issue No.1 are
clearly perverse and unsustainable. The Petitioner-employer has afforded
due opportunity of defence to the Respondent-employees, who apparently
collectively decided not to cross-examine the witnesses by citing false
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pretext of lack of representation by Union, when in fact the very same
Union was representing them by issuing threats of hunger strike. The
expectation of the Respondent-employees for provision of representation by
practicing advocate at the costs of Petitioner-employer was clearly
unwarranted. It was the responsibility of the Respondent-employees to
arrange the services of the defence representative. Some of the
Respondent-employees were office bearers of the concerned Union, at whose
behest and instigation, apparently the entire episode has taken place. It is
therefore unbelievable that the Union did not provide for defence
representative for defending the Respondent-employees in the enquiry. In
any case, whether the Union of Respondent-employees provided services of
defence assistant to them or not, it was their own responsibility to ensure
that they are duly represented by the defence representatives. It is not the
responsibility of the Petitioner-Management to provide services of
practicing advocate to the delinquent employees. It is also not a matter of
coincidence that none of the 35 employees were unable to arrange services
of defence representative for conducting cross-examination of Petitioner-
Management witnesses. In my view therefore, it was a deliberate and
conscious call taken by all the delinquent employees not to cross-examine
the witnesses possibly for creating a ground for challenging enquiry
proceedings before the Labour Court. Once it is held that opportunity of
cross-examination was deliberately and consciously not availed by the
delinquent employees, all technical pleas of non-payment of subsistence of
allowance, non-extension of medical facilities, absence of some of the
delinquent employees in joint enquiries, commencement of enquiry on the
first date etc. become meaningless. Far from cause of any prejudice to the
Respondent-employees, this appears to be a deliberate ploy by them to
create a ground for challenging the enquiry before the Labour Court by not
participating in the cross-examination process.
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18) It is well settled principle of law that mere breach of principles
of natural justice, do not ipso facto vitiate a domestic enquiry. Reliance by
Mr. Talsania on judgment of the Apex Court in State Chairman, State
Bank of India and another vs. M.J. James 2 is apposite in which it is
held in paragraphs 23 and 29 to 31 as under:
23. Now, we need to advert our attention on the aspect of the choice of
representation in domestic inquiry. Both sides rely on the dictum of this Court
in Crescent Dyes & Chemicals Ltd. v. Ram Naresh Tripathi [Crescent Dyes &
Chemicals Ltd. v. Ram Naresh Tripathi, (1993) 2 SCC 115 : 1993 SCC (L&S) 360]
and National Seeds Corpn. Ltd. v. K.V. Rama Reddy [National Seeds Corpn.
Ltd. v. K.V. Rama Reddy, (2006) 11 SCC 645 : (2007) 1 SCC (L&S) 512] which
hold that the right to be represented by a third person in domestic
inquiries/tribunals is based upon the precept that it is not desirable to restrict
right of representation by a counsel or agent of one's choice. The ratio does not
tantamount to acceptance of the proposition that such a right is an element of
principles of natural justice, and its denial would immediately invalidate the
inquiry. Representations are often restricted by a law, such as under Section 36 of
the Industrial Disputes Act, 1947, as also by Certified Standing Orders.
29. Legal position on the importance to show prejudice to get relief is also
required to be stated. In State Bank of Patiala v. S.K. Sharma [State Bank of
Patiala v. S.K. Sharma, (1996) 3 SCC 364] a Division Bench of this Court
distinguished between "adequate opportunity" and "no opportunity at all" and
held that the prejudice exception operates more specifically in the latter case.
This judgment also speaks of procedural and substantive provisions of law
embodying the principles of natural justice which, when infracted, must lead to
prejudice being caused to the litigant in order to afford him relief. The principle
was expressed in the following words : (SCC p. 389, para 32)
"32. Now, coming back to the illustration given by us in the preceding
paragraph, would setting aside the punishment and the entire enquiry on
the ground of aforesaid violation of sub-clause (iii) be in the interests of
justice or would it be its negation? In our respectful opinion, it would be
the latter. Justice means justice between both the parties. The interests of
justice equally demand that the guilty should be punished and that
technicalities and irregularities which do not occasion failure of justice are
not allowed to defeat the ends of justice. Principles of natural justice are
but the means to achieve the ends of justice. They cannot be perverted to
achieve the very opposite end. That would be a counterproductive
exercise."
30. Earlier decision in M.C. Mehta v. Union of India [M.C. Mehta v. Union of
India, (1999) 6 SCC 237] examined the expression "admitted and undisputable
facts", as also divergence of legal opinion on whether it is necessary to show
2 (2022) 2 SCC 301
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"slight proof" or "real likelihood of prejudice"; or legal effect of "an open and shut
case", with reference to the observations in S.L. Kapoor v. Jagmohan [S.L.
Kapoor v. Jagmohan, (1980) 4 SCC 379] and elucidates in the following words :
(M.C. Mehta case [M.C. Mehta v. Union of India, (1999) 6 SCC 237] , SCC pp. 245-
47, paras 22-23)
"22. Before we go into the final aspects of this contention, we would like to
state that cases relating to breach of natural justice do also occur where all
facts are not admitted or are not all beyond dispute. In the context of those
cases there is a considerable case law and literature as to whether relief
can be refused even if the court thinks that the case of the applicant is not
one of "real substance" or that there is no substantial possibility of his
success or that the result will not be different, even if natural justice is
followed. See Malloch v. Aberdeen Corpn. [Malloch v. Aberdeen Corpn.,
(1971) 1 WLR 1578 (HL)] . (per Lord Reid and Lord
Wilberforce), Glynn v. Keele University [Glynn v. Keele University, (1971) 1
WLR 487] , Cinnamond v. British Airports
Authority [Cinnamond v. British Airports Authority, (1980) 1 WLR 582
(CA)] where such a view has been held. The latest addition to this view
is R. v. Ealing Magistrates' Court, ex p Fannaran [R. v. Ealing Magistrates'
court, ex p Fannaran, (1996) 8 Admn LR 351] (Admn LR at p. 358) (see de
Smith, Suppl. p. 89) (1998) where Straughton, L.J. held that there must be
"demonstrable beyond doubt" that the result would have been different.
Lord Woolf in Lloyd v. McMahon [Lloyd v. McMahon, 1987 AC 625 : (1987)
2 WLR 821 (HL)] (WLR at p. 862) has also not disfavoured refusal of
discretion in certain cases of breach of natural justice. The New Zealand
Court in McCarthy v. Grant [McCarthy v. Grant, 1959 NZLR 1014]
however goes halfway when it says that (as in the case of bias), it is
sufficient for the applicant to show that there is "real likelihood -- not
certainty -- of prejudice". On the other hand, Garner Administrative
Law (8th Edn., 1996, pp. 271-72) says that slight proof that the result
would have been different is sufficient. On the other side of the argument,
we have apart from Ridge v. Baldwin [Ridge v. Baldwin, 1964 AC 40 :
(1963) 2 WLR 935 (HL)] , Megarry, J. in John v. Rees [John v. Rees, 1970
Ch 345 : (1969) 2 WLR 1294] stating that there are always "open and shut
cases" and no absolute rule of proof of prejudice can be laid down. Merits
are not for the court but for the authority to consider. Ackner, J. has said
that the "useless formality theory" is a dangerous one and, however
inconvenient, natural justice must be followed. His Lordship observed that
"convenience and justice are often not on speaking terms". More recently
Lord Bingham has deprecated the "useless formality" theory in R. v. Chief
Constable of the Thames Valley Police Forces, ex p Cotton [R. v. Chief
Constable of the Thames Valley Police Forces, ex p Cotton, 1990 IRLR 344]
by giving six reasons. (See also his article "Should Public Law Remedies be
Discretionary?" 1991 PL, p. 64.) A detailed and emphatic criticism of the
"useless formality theory" has been made much earlier in "Natural Justice,
Substance or Shadow" by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-
63) contending that Malloch [Malloch v. Aberdeen Corpn., (1971) 1 WLR
1578 (HL)] and Glynn [Glynn v. Keele University, (1971) 1 WLR 487] were
wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323),
Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court
cannot prejudge what is to be decided by the decision-making authority. de
Smith (5th Edn., 1994, Paras 10.031 to 10.036) says courts have not yet
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committed themselves to any one view though discretion is always with
the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that
while futile writs may not be issued, a distinction has to be made
according to the nature of the decision. Thus, in relation to cases other
than those relating to admitted or indisputable facts, there is a
considerable divergence of opinion whether the applicant can be compelled
to prove that the outcome will be in his favour or he has to prove a case of
substance or if he can prove a "real likelihood" of success or if he is entitled
to relief even if there is some remote chance of success. We may, however,
point out that even in cases where the facts are not all admitted or beyond
dispute, there is a considerable unanimity that the courts can, in exercise
of their "discretion", refuse certiorari, prohibition, mandamus or injunction
even though natural justice is not followed. We may also state that there is
yet another line of cases as in State Bank of Patiala v. S.K. Sharma [State
Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364] , Rajendra
Singh v. State of M.P. [Rajendra Singh v. State of M.P., (1996) 5 SCC 460]
that even in relation to statutory provisions requiring notice, a distinction
is to be made between cases where the provision is intended for individual
benefit and where a provision is intended to protect public interest. In the
former case, it can be waived while in the case of the latter, it cannot be
waived.
23. We do not propose to express any opinion on the correctness or
otherwise of the "useless formality" theory and leave the matter for
decision in an appropriate case, inasmuch as, in the case before us,
"admitted and indisputable" facts show that grant of a writ will be in vain
as pointed [S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379] out by Chinnappa
Reddy, J."
(emphasis in original)
31. In State of U.P. v. Sudhir Kumar Singh [State of U.P. v. Sudhir Kumar Singh,
(2021) 19 SCC 706 : 2020 SCC OnLine SC 847] referring to the aforesaid cases
and several other decisions of this Court, the law was crystallised as under : (SCC
para 42)
"42. An analysis of the aforesaid judgments thus reveals:
42.1. Natural justice is a flexible tool in the hands of the judiciary to reach
out in fit cases to remedy injustice. The breach of the audi alteram partem
rule cannot by itself, without more, lead to the conclusion that prejudice is
thereby caused.
42.2. Where procedural and/or substantive provisions of law embody the
principles of natural justice, their infraction per se does not lead to
invalidity of the orders passed. Here again, prejudice must be caused to
the litigant, except in the case of a mandatory provision of law which is
conceived not only in individual interest, but also in public interest.
42.3. No prejudice is caused to the person complaining of the breach of
natural justice where such person does not dispute the case against him or
it. This can happen by reason of estoppel, acquiescence, waiver and by way
of non-challenge or non-denial or admission of facts, in cases in which the
Court finds on facts that no real prejudice can therefore be said to have
been caused to the person complaining of the breach of natural justice.
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42.4. In cases where facts can be stated to be admitted or indisputable,
and only one conclusion is possible, the Court does not pass futile orders of
setting aside or remand when there is, in fact, no prejudice caused. This
conclusion must be drawn by the Court on an appraisal of the facts of a
case, and not by the authority who denies natural justice to a person.
42.5. The "prejudice" exception must be more than a mere apprehension or
even a reasonable suspicion of a litigant. It should exist as a matter of fact,
or be based upon a definite inference of likelihood of prejudice flowing from
the non-observance of natural justice."
19) I am therefore of the view that the findings recorded by the
Industrial Court on preliminary issue No.1 relating to fairness in the
enquiry are clearly unsustainable and liable to be set aside.
20) Coming to issue No.2 relating to perversity in the findings of
Enquiry Officer, the Industrial Court has recorded following findings:
44. Then appears that, in discharge summary of Mr. Vinayak Arvind
Kulkarni, shows injury to said Vinayak to his head, chest and ear but in
charge-sheet shown the injuries to said Vinayak Kulkarni on back,
abdomen, ear and eyes. The said controversy clearly shows that the
injuries of said Vinayak Kulkarni are false and bogus. So also, in the said
discharge summary of Mr. Vinayak mentioned that he is not facing,
omitting or other problem as per CT Scan of said Vinayak, no where
shown any abnormality about brain. The said Kulkarni was discharged on
12.12.2015. Thus, in view of said discharge summary appears that, the
allegations made in the charge-sheet that the injury caused on back
abdomen and assaulted with iron rode and pour kerosene and oil paint are
prima facie false and bogus. The said Kulkarni was simply admitted for a
day. Really, if there would have be assault by iron rode and pouring
kerosene and oil paint, it would not have been possible to discharge said
Kulkarni in a day. Then as per the discharge summary of Mr. Vidyadhar
H. Nare, appears that in the said discharge summary shown injury to said
Vidyadhar to abdomen and nowhere it has been mentioned about the
injury on head and back. But in charge-sheet shown injury to Vidyadhar
Nare on head and back, the said Nare discharged on the same day. The Ld.
Labour Court while passing impugned order failed to consider the above-
mentioned controversies about the injuries which appears to Vinayak
Kulkarni and Vidyadhar Nare. Thus, the Ld. Labour Court while passing
impugned order failed to determined the above mentioned illegalities,
irregularities and violation of principal of natural justice which
committed/ appears after carefully gone thorough the enquiry report of
enquiry officer. Hence, the Ld. Labour Court held that, the enquiry
conducted by the enquiry officer is fair and proper is not legal, proper and
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acceptable as per the provisions of law and to the mind of any prudent
man or judicial mind.
45. The enquiry officer has held that, all revision petitioners/ delinquents
are guilty of charges under clause 24(a), 24(d), 24(k) & 24(r) of standing
orders though there are no any allegations in the charge-sheet about the
misconduct as stated in the above-mentioned clauses of standing orders.
The said observation of enquiry officer appears in collusion with
management of respondent hospital only with intention to give
opportunity to management of respondent Hospital to victimized the
revision petitioners/ delinquents. Thus, the finding which are given by the
enquiry officers, is perverse then also Ld. Labour Court while passing
impugned order held that, in the reasoning and finding of enquiry officer
not appears any perversity is not legal and proper.
46. Then after carefully perusal of enquiry report it appears that enquiry
officer relied upon C.D. and Photographs which were vide Exh. 62, 63,
65,66,67, 68, 69, 70, 71 & 72. But the C.D. produced by respondent
Hospital during enquiry proceedings contained only slide shows of
photographs and not a motion pictures showing how the alleged incidents
taking place. Then, after perusal of photographs, appears that, the
allegations levelled against revision petitioners/delinquents are false and
bogus. So, also does not disclose individual act of delinquents/revisions
petitioners. Thus, Ld. Labour Court while passing the impugned order
failed to consider above mentioned perversity which appears in the
reasoning and findings of the enquiry officer. So also not considered the
findings which are given by the enquiry officer is based on assumption and
presumption. As well as not considered that enquiry officer failed to
consider that, for the same incident registered which crime number
against delinquents/revision petitioners for the offence punishable under
Section 143, 146, 323, 324, 504, 506(ii) read with Section 34 and 149 of
Indian Fennel Code. In the said criminal case concerned Metropolitan
Magistrate, Mazgaon (Sewree) acquitted all the accuses of that crime who
were/ are delinquents in the enquiry conducted by the enquiry officer. It is
settled law that, if there are similar charges in the criminal case as in
departmental enquiry and if delinquents are honorarily acquitted on
merits. The weight has to be given to the findings of Metropolitan
Magistrate and not to the finding of enquiry officer which is quasi judicial
proceeding. But Ld. Labour Court while passing impugned order failed to
considering the aforesaid perversity which appears in the reasoning and
finding of the enquiry officer.
21) In my view, the Industrial Court has clearly erred in
disbelieving the deposition of Mr. Vinayak Kulkarni and Mr. Nare, who are
examined in the domestic enquiry. The Industrial Court has also
unnecessarily gone into the seriousness of injuries caused to Mr. Kulkarni
ignoring specific deposition given by him before the Enquiry Officer that he
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was in fact assaulted. In domestic enquiry, the test of proving charge is
preponderance of probability. There is unchallenged testimony of Mr.
Vinayak Kulkarni and Mr. Nare that they were assaulted abused and
threatened. The delinquent employees have not cross-examined the said
two witnesses. Their testimonies have gone unchallenged. It is therefore
inconceivable that the findings of the Enquiry Officer qua the charges of
assault, abuse and threats can be said to be perverse. In my view, there is
sufficient evidence on record to bring home charges against the
Respondent-employees.
22) It would be apposite to refer to few judgments on the issue of
nature of evidence needed to bring home the charges in domestic inquires.
In Kuldeep Singh V/s. Commissioner of Police and Others 3 it is held
as under:
10. A broad distinction has, therefore, to be maintained between the decisions which
are perverse and those which are not. If a decision is arrived at on no evidence or
evidence which is thoroughly unreliable and no reasonable person would act upon it, the
order would be perverse. But if there is some evidence on record which is
acceptable and which could be relied upon, howsoever compendious it may be,
the conclusions would not be treated as perverse and the findings would not be
interfered with.
(emphasis added)
23) In State of Haryana Versus. Rattan Singh4 it is held as under:
4. It is well settled that in a domestic enquiry the strict and sophisticated rules
of evidence under the Indian Evidence Act may not apply. All materials which
are logically probative for a prudent mind are permissible. There is no allergy
to hearsay evidence provided it has reasonable nexus and credibility. It is true
that departmental authorities and Administrative Tribunals must be careful in
evaluating such material and should not glibly swallow what is strictly
speaking not relevant under the Indian Evidence Act. For this proposition it is
not necessary to cite decisions nor text books, although we have been taken
through case-law and other authorities by counsel on both sides. The essence
of a judicial approach is objectivity, exclusion of extraneous materials or
considerations and observance of rules of natural justice. Of course, fairplay is
the basis and if perversity or arbitrariness, bias or surrender of independence
3 (1999) 2 SCC 10
4 (1977) 2 SCC 491
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of judgment vitiate the conclusions reached, such finding, even though of a
domestic tribunal, cannot be held good. However, the courts below
misdirected themselves, perhaps, in insisting that passengers who had come
in and gone out should be chased and brought before the tribunal before a
valid finding could be recorded. The 'residuum' rule to which counsel for the
respondent referred, based upon certain passages from American
Jurisprudence does not go to that extent nor does the passage from Halsbury
insist on such rigid requirement. The simple point is, was there some
evidence or was there no evidence -- not in the sense of the technical rules
governing regular court proceedings but in a fair commonsense way as men
of understanding and worldly wisdom will accept. Viewed in this way,
sufficiency of evidence in proof of the finding by a domestic tribunal is
beyond scrutiny. Absence of any evidence in support of a finding is
certainly available for the court to look into because it amounts to an error
of law apparent on the record. We find, in this case, that the evidence of
Chamanlal, Inspector of the Flying Squad, is some evidence which has
relevance to the charge levelled against the respondent. Therefore, we are
unable to hold that the order is invalid on that ground.
(emphasis supplied)
24) Applying the principles enunciated in various judgments of the
Apex Court on the standard of proof required in a domestic inquiry, can it
be said in the present case, that there is absolutely no evidence to prove the
charges? The answer to the question, to my mind, appears to be emphatic
in the negative. There is evidence of two witnesses who have been
assaulted and the case does not involve the eventuality of total absence of
evidence for the Industrial Court to hold that the findings of the enquiry
officer are perverse.
25) Coming to the issue of acquittal of the Respondent- employees
in the criminal case, it is well established principle of law that the purpose
of conduct of criminal prosecution and domestic enquiry are entirely
different. Domestic Enquiry is held to instilling a sense of discipline at the
work place whereas criminal prosecution is conducted for punishing an
accused for the crime that he has committed. The test of proof in the
criminal prosecution is proof beyond reasonable doubt, whereas charges in
the domestic enquiry are to be proved on the test of preponderance of
probability. In criminal case, charges need to be proved beyond reasonable
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doubt whereas in domestic enquiry, presence of some evidence, however
compendious if may be, is sufficient to bring home the charges. Perusal of
the judgment of the Metropolitan Magistrate dated 23 October 2019 would
indicate that the Respondent-employees are given benefit of doubt. The
prosecution was unable to prove before the Magistrate that Mr. Kulkarni
was assaulted by use of iron rod. The Criminal Court has placed weightage
on absence of injuries in the injury certificate issued by J.J. Group of
Hospitals. The Magistrate has refused to look into the video recording
recorded on the Compact Disc (CD) as the same was not proved by the
prosecution according to provisions of law. The Magistrate has disbelieved
the panchnama relating to seizure of clothes and other articles. In my view
therefore, the standard of proof applied by the Magistrate while acquitting
the Respondent-employees cannot be applied in a domestic enquiry. There
is direct evidence before the Enquiry Officer in the form of testimony of
Mr. Kulkarni and Mr. Nare. The employees took a calculated risk of not
conducting their cross-examinations. In my view therefore, it would be too
dangerous to discard the entire evidence available before the Enquiry
Officer only on account of acquittal of the Respondent-employees in the
criminal prosecution.
26) The Apex Court in Union of India and others vs Dalbir
Singh5, has held in paras-24, 25 and 28 as under :
24. This Court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd. [Ajit Kumar
Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 : 2005 SCC (L&S) 1020] held
that the degree of proof which is necessary to order a conviction is different from
the degree of proof necessary to record the commission of delinquency. In criminal
law, burden of proof is on the prosecution and unless the prosecution is able to
prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted
by a court of law. In a departmental enquiry, on the other hand, penalty can be
imposed on the delinquent officer on a finding recorded on the basis of
"preponderance of probability". It was held as under : (SCC p. 776, para 11)
5 (2021) 11 SCC 321
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"11. As far as acquittal of the appellant by a criminal court is concerned,
in our opinion, the said order does not preclude the Corporation from
taking an action if it is otherwise permissible. In our judgment, the law is
fairly well settled. Acquittal by a criminal court would not debar an
employer from exercising power in accordance with the Rules and
Regulations in force. The two proceedings, criminal and departmental, are
entirely different. They operate in different fields and have different
objectives. Whereas the object of criminal trial is to inflict appropriate
punishment on the offender, the purpose of enquiry proceedings is to deal
with the delinquent departmentally and to impose penalty in accordance
with the service rules. In a criminal trial, incriminating statement made
by the accused in certain circumstances or before certain officers is totally
inadmissible in evidence. Such strict rules of evidence and procedure
would not apply to departmental proceedings. The degree of proof which is
necessary to order a conviction is different from the degree of proof
necessary to record the commission of delinquency. The rule relating to
appreciation of evidence in the two proceedings is also not similar. In
criminal law, burden of proof is on the prosecution and unless the
prosecution is able to prove the guilt of the accused "beyond reasonable
doubt", he cannot be convicted by a court of law. In a departmental enquiry,
on the other hand, penalty can be imposed on the delinquent officer on a
finding recorded on the basis of "preponderance of probability". Acquittal of
the appellant by a Judicial Magistrate, therefore, does not ipso facto
absolve him from the liability under the disciplinary jurisdiction of the
Corporation. We are, therefore, unable to uphold the contention of the
appellant that since he was acquitted by a criminal court, the impugned
order [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., 2004 SCC OnLine Cal
59] dismissing him from service deserves to be quashed and set aside."
(emphasis supplied)
25. This Court in Noida Entrepreneurs Assn. v. Noida [Noida Entrepreneurs
Assn. v. Noida, (2007) 10 SCC 385 : (2008) 1 SCC (Cri) 792 : (2008) 1 SCC (L&S)
672] held that the criminal prosecution is launched for an offence for violation of
a duty, the offender owes to the society or for breach of which law has provided
that the offender shall make satisfaction to the public, whereas, the departmental
enquiry is to maintain discipline in the service and efficiency of public service. It
was held as under : (SCC p. 392, para 11)
"11. A bare perusal of the order which has been quoted in its totality goes
to show that the same is not based on any rational foundation. The
conceptual difference between a departmental enquiry and criminal
proceedings has not been kept in view. Even orders passed by the executive
have to be tested on the touchstone of reasonableness. [See Tata
Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC
651] and Teri Oat Estates (P) Ltd. v. State (UT of Chandigarh) [Teri Oat
Estates (P) Ltd. v. State (UT of Chandigarh), (2004) 2 SCC 130] .] The
conceptual difference between departmental proceedings and criminal
proceedings have been highlighted by this Court in several cases.
Reference may be made to Kendriya Vidyalaya Sangathan v. T.
Srinivas [Kendriya Vidyalaya Sangathan v. T. Srinivas, (2004) 7 SCC 442 :
2004 SCC (L&S) 1011] , Hindustan Petroleum Corpn. Ltd. v. Sarvesh
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Berry [Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry, (2005) 10 SCC
471 : 2005 SCC (Cri) 1605] and Uttaranchal RTC v. Mansaram
Nainwal [Uttaranchal RTC v. Mansaram Nainwal, (2006) 6 SCC 366 :
2006 SCC (L&S) 1341] .
'8. ... The purpose of departmental enquiry and of prosecution are two
different and distinct aspects. The criminal prosecution is launched for an
offence for violation of a duty, the offender owes to the society or for breach
of which law has provided that the offender shall make satisfaction to the
public. So crime is an act of commission in violation of law or of omission
of public duty. The departmental enquiry is to maintain discipline in the
service and efficiency of public service. It would, therefore, be expedient
that the disciplinary proceedings are conducted and completed as
expeditiously as possible. It is not, therefore, desirable to lay down any
guidelines as inflexible rules in which the departmental proceedings may
or may not be stayed pending trial in the criminal cases against the
delinquent officer. Each case requires to be considered in the backdrop of
its own facts and circumstances. There would be no bar to proceed
simultaneously with departmental enquiry and trial of a criminal case
unless the charge in the criminal trial is of grave nature involving
complicated questions of fact and law. Offence generally implies
infringement of public duty, as distinguished from mere private rights
punishable under criminal law. When the trial for a criminal offence is
conducted it should be in accordance with proof of the offence as per the
evidence defined under the provisions of the Evidence Act, 1872 [in short
"the Evidence Act"]. The converse is the case of departmental enquiry. The
enquiry in a departmental proceedings relates to conduct or breach of duty
of the delinquent officer to punish him for his misconduct defined under
the relevant statutory rules or law. That the strict standard of proof or
applicability of the Evidence Act stands excluded is a settled legal position.
... Under these circumstances, what is required to be seen is whether the
departmental enquiry would seriously prejudice the delinquent in his
defence at the trial in a criminal case. It is always a question of fact to be
considered in each case depending on its own facts and circumstances.'
[Ed. : As observed in A.P. SRTC v. Mohd. Yousuf Miya, (1997) 2 SCC 699,
pp. 704-05, para 8.] "
28. The burden of proof in the departmental proceedings is not of beyond
reasonable doubt as is the principle in the criminal trial but probabilities of the
misconduct. The delinquent such as the writ petitioner could examine himself to
rebut the allegations of misconduct including use of personal weapon. In fact, the
reliance of the writ petitioner is upon a communication dated 1-5-2014 made to
the Commandant through the enquiry officer. He has stated that he has not fired
on higher officers and that he was out of camp at the alleged time of incident.
Therefore, a false case has been made against him. His further stand is that it
was a terrorist attack and terrorists have fired on the camp. None of the
departmental witnesses have been even suggested about any terrorist attack or
that the writ petitioner was out of camp. Constable D.K. Mishra had immobilised
the writ petitioner whereas all other witnesses have seen the writ petitioner
being immobilised and being removed to quarter guard. PW 5 Brij Kishore Singh
deposed that 3-4 soldiers had taken the self-loading rifle ("SLR") of the writ
petitioner in their possession. Therefore, the allegations in the charge-sheet dated
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25-2-2013 that the writ petitioner has fired from the official weapon is a reliable
finding returned by the departmental authorities on the basis of evidence placed
before them. It is not a case of no evidence, which alone would warrant
interference by the High Court in exercise of power of judicial review. It is not the
case of the writ petitioner that there was any infraction of any rule or regulations
or the violation of the principles of natural justice. The best available evidence
had been produced by the appellants in the course of enquiry conducted after long
lapse of time.
27) I am therefore of the view that even the findings recorded by
the Industrial Court on Issue No. 2 of perversity are clearly unsustainable.
28) Reliance by Mr. Mohite on judgment of the Apex Court in
Director BCG Vaccine Laboratory, Madras (supra) does not make the
case of Respondent-employees any better. The Petitioner-Management
representative was not a practicing advocate or a legally trained mind and
therefore Respondent-employees were otherwise not entitled to engage
services of practicing advocate. It is not that Respondent-employees
suggested name of any practicing advocate but vaguely demanded that the
Petitioner-employer must provide Advocate at the cost of the Petitioner-
employer. This is something which is inconceivable in a domestic enquiry.
Therefore, the order passed by the Apex Court in Director, BCG Vaccine
Laboratory, Madras (supra) does not really assist the case of
Respondent-employees.
29) After considering the overall conspectus of the case, I am of the
view that the impugned orders passed by the Industrial Court on 9
January 2024 are unsustainable and liable to be set aside.
30) The petitions accordingly succeed. Orders dated 19 January
2024 passed by Industrial Court are set aside and the orders passed by the
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Labour Court on 18 August 2022 are upheld. The Labour Court shall
however proceed to answer the balance issues considering the role
attributed to each of the Respondent-employees.
31) With the above directions, all the Petitions are allowed and
disposed of. There shall be no order as to costs.
(SANDEEP V. MARNE, J.)
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2025.02.25
14:34:19 +0530
