Bombay High Court
Brihanmumbai Mahanagar Palika vs Gangaram Muthyanna Mukadam And Anr. on 12 June, 2003
Equivalent citations: (2003)IIILLJ674BOM
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Heard the learned advocates for the parties. Perused the records.
2. The petitioners are challenging the judgment and order dated February 22, 2000, passed in Appeal (IC) No. 22 of 1998 by the Industrial Court partly allowing the appeal filed by the petitioners against the judgment and order dated February 6, 1998 of the Labour Court, Mumbai, in Application (BIR) No. 116 of 1984. By the said order, the Labour Court had directed reinstatement of the respondent No. 1 (hereinafter referred to as "the respondent") with full back wages and continuity in service with effect from September 15, 1984. The Industrial Court partly allowed the appeal, modifying the order passed by the Labour Court to the extent of giving liberty to the petitioners to impose punishment instead of dismissal from service for the misconduct proved under Standing Orders 20(k) and 20(zi) while treating the respondent in continuous service with effect from September 15, 1984 and for his entitlement thereof.
3. The challenge to the impugned judgment and order is firstly on the count that the Labour Court as well as the Industrial Court failed to appreciate the evidence in proper perspective and even ignored the material evidence in the nature of testimony of Narayanrao Togalia, clerk-cum-typist of the petitioners and Exhibit C-15/H which is a statement in writing by one Dattu, confirming the payment of money as bribe to the respondent and thereby illegally rejected the contention of the petitioners that the respondent had accepted the bribe for recruitment of candidates as Navghanies. The second ground of challenge is that even assuming that the materials on record establish the misconduct in the form of loan transaction between the employees, the said misconduct on the part of the respondent having been established, the grant of back wages would not have been ordered. The refusal of back wages could have been appropriate punishment for the proved misconduct. Reliance is placed in the decisions in the matters of State of Haryana and Anr. v. Rattan Singh, and Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd. and Anr. . On other hand, the learned advocate for the respondent submitted that both the Courts on analysis of the evidence have arrived at the concurrent finding on the point of failure on the part of the petitioners to establish the charge of acceptance of bribe and it does not warrant any interference in writ jurisdiction. Considering the nature of the misconduct and the fact that loan transaction was otherwise permitted provided there is prior permission for the same, and the fact that both the Courts have ordered the reinstatement and the petitioners having been given liberty to impose some other appropriate punishment, and bearing in mind the ruling of the Apex Court in Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. and Anr. , there is no scope for interference in the impugned judgment and order.
13th June, 2003
4. As regards the contention that the Courts below have failed to analyse the evidence on record in proper perspective in relation to the charge of acceptance of bribe, it is to be seen that the charge against the respondent in that regard was specific in the sense that monies were allegedly accepted in relation to the recruitment of candidates for the posts of Navghanies, and both the Courts have arrived at the concurrent finding on this aspect that there is no evidence in support of the said charge and on the contrary there is a clear admission that the respondent was in no way concerned with the recruitment of the Navghanies. It is, however, sought to be argued on behalf of the petitioners that considering the documentary evidence, and more particularly a note-book which was seized from the respondent which discloses various entries, would apparently disclose that the respondent was accepting money for arranging the recruitment facilities to such Navghanies. According to the learned advocate, the respondent might not be directly concerned with the recruitment of Navghanies yet he might be helping in some other way those people to secure the said job by acceptance of money, otherwise the respondent had no justification to collect the money from those persons. Even though it is true that in such enquiries the provisions of the Evidence Act are not applicable, the Courts or Tribunals are not entitled to arrive at the finding merely on the basis of assumptions and inferences without any basis and in the absence of sufficient materials being placed on record in support of the allegations. The findings arrived at by the Courts below regarding the failure on the part of the petitioners to establish the charge of acceptance of bribe are neither perverse nor are contrary to the materials on record. Perhaps, the petitioners may be justified in contending that some other view may also be possible in relation to the materials on record. However, merely because some other view is possible, it is not permissible to interfere in the findings arrived at by the Courts below when such findings can neither be termed as perverse, nor contrary to the materials on record. Being so, there is no case for re- assessment of the evidence as such by this Court in writ jurisdiction.
5. Much stress was laid on Exhibit C-15/H while contending that the said document apparently discloses that one of the beneficiaries of the acts on the part of the respondent had given in writing about the payment of money to the respondent for securing the job of Navghany, and yet no credence was given to the said documentary evidence, inspite of the fact that the same was duly corroborated by the testimony of the witness examined by the petitioners. Undoubtedly, the witness Narayanrao, who is a clerk-cum-typist in the concerned department of the petitioners, had stated in his deposition that one Mr. Dattu in his presence had written the said Exhibit C-15/H and he had signed the same. Admittedly, no person by name Mr. Dattu has been examined by the petitioners. Neither the witness Narayanrao had deposed anything regarding, the contents of the statement stated to have been written by Mr. Dattu in his presence. The contention of the learned advocate for the petitioners, however, is that the provisions of the Evidence Act being not applicable to cases in such matters, the absence of these particulars would not justify discarding the testimony of Narayanrao as well as the contents of Exhibit C-15/H and in that connection attention is drawn to the decision in the matter of State of Haryana and Anr. v. Rattan Singh (supra).
6. The Apex Court in Rattan Singh's case (supra) has held that 1982-I-LLJ-146 at p. 47:
"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 had reasonable nexus and credibility....."
Referring to this ruling, it was sought to be contended that even hearsay evidence is admissible in such enquiries, and here is a case where a written document had been placed on record and that has been confirmed by the person in whose presence the said document was written and, therefore, there was no justification for the Courts below to reject the same.
7. The ratio of a judgment, it is well-settled, has to be understood with reference to the facts of the case, the point for consideration and the decision thereon. While reading the law laid down by the Apex Court, it is also necessary to see whether the ruling applies to the facts in the case. In Rattan Singh's case (supra), the Apex Court was dealing with a matter wherein a conductor of the Haryana Roadways, whose job was to collect fares from the passengers and to issue tickets to them, was accused of non-issuance of tickets to eleven passengers even though they had travelled through the bus and had paid their fares. After an enquiry, his services were terminated. The Courts below had declared the termination to be bad in law as none of the eleven passengers were examined at the domestic enquiry, and secondly, that the departmental instructions which required the checking inspector to record the statements of the passengers, was not complied with. In a challenge to the order of reinstatement passed by the Courts below, when the matter came up before the Apex Court, the above observations were made, while allowing the appeal of the employer, and it was also ruled therein that 1982-I-LLJ-46 at p. 47:
"4...... 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 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 Apex Court has further held that:
"...... The simple point is, was there some 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........"
With these observations, the Apex Court therein held that sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny and the 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 and, therefore, the Apex Court, after going through the records, set aside the orders of the Courts below.
8. The facts narrated above and the observations of the Apex Court quoted above would disclose that though strict and sophisticated rules of evidence under the Indian Evidence Act are not applicable to the proceedings before the Labour Court and the Industrial Court, yet those Courts have to consider the materials on record which are logically probative for a prudent mind and there has to be observance of the rules of natural justice. Bearing in mind the same, if one analyses the testimony of Narayanrao and the Exhibit C-15/H to deal with the arguments advanced on behalf of the petitioners, it is apparent that Narayanrao, apart from making his statement that Exhibit C-15/H was written by Mr. Dattu in his presence, has nowhere stated in what manner and how the said document is relevant for the issue in question. On the contrary, his testimony, if read further, would reveal that he was not even aware as to whether the document relates to the case in hand or not, or whether the said document relates to some other case. He has deposed in his testimony that "some bribe case was there and so Mr. Dattu was present. These statements were recorded in the office of the recruitment Section at Colaba, Bombay." Prior to this statement, he has also stated that "the statements at Exhibit C-15/I, J and K were written by me in my own handwriting." Besides, in the course of cross-examination, he has categorically stated that "I am personally not aware of the allegations against the applicant. Apparently the witness was not aware of the facts of the case. It is not his case that he knew Mr. Dattu. Admittedly, the document bears the signature as "A. Datta". The contents of the document are in Hindi. The name at the top of the document reads as "Dattu Rajaya Ankam" and the same is in Devnagri script. The contents of the document reads thus:
"February 8, 1984: For the purpose of my recruitment Rs. 200/- were received from me. This amount was paid for the purpose of my recruitment. This money was not paid for any other purpose. They were paid for the purpose of recruitment. Rs. 200/- was paid on February 8, 1984 at 11:30 near Reserve Bank signal."
The document nowhere refers to the amount having been paid to the respondent either by his name or as Mukadam. Can this evidence, by any stretch of imagination, be said to be logically probative for a prudent mind to link the same with the charge against the respondent? The witness himself neither knows the facts of the case, nor he knows the contents of the document, nor he knows that any amount was paid by any person nor he knows whether any amount was paid by Mr. Dattu to the respondent, nor he has witnessed any incident of payment of money by any person to the respondent, either in connection with any arrangement for recruitment or otherwise and being so, no fault can be found with the findings arrived at by the Courts below, rejecting the evidence in relation to the Exhibit C-15/H. The decision of the Apex Court in Rattan Singh's case (supra) in no way helps the petitioners to assail the said finding or to invite this Court to interfere in the said finding in any manner.
9. In the circumstances, therefore, the contention that the Courts below erred in rejecting the case of the petitioners regarding the acceptance of money by the respondent as bribe for assurance for arranging recruitment of Navghanies, is to be rejected as being without any substance.
10. Only other point which remains to be considered is in relation to the punishment. The Industrial Court while partly allowing the appeal has modified the order passed by the Labour Court, confirming the punishment imposed by the employer upon the respondent and ordered that though the misconduct under Standing Order No. 20(k) and 20(zi) has been established, the punishment of dismissal from service is not justified and therefore the respondent is entitled for reinstatement with continuity in service and for back wages, giving opportunity to the petitioners to impose some other punishment. In other words, the petitioners are empowered to impose the punishment other than in relation to the termination of services and/or withholding of back wages. It is the contention of the petitioners' advocate that bearing in mind the misconduct established on record, and the fact that the respondent was indulging himself in money transactions with the employees, without prior permission of the petitioners, even though the reinstatement may be justified, the payment of back wages is not justified in any manner and in that regard attention is drawn to the decision in the matter of Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd., and Anr. (supra).
11. The Industrial Court while modifying the order in relation to the punishment has observed that the Standing Orders provide that an employee can give loan and collect the same with prior permission of the General Manager of the petitioners and being so, had there been such permission obtained by the respondent, there would have been no misconduct on his part in relation to the transaction established on record and that therefore the punishment of dismissal is not warranted for such misconduct and lesser punishment will be appropriate one. The learned advocate for the respondent, however, has submitted that once the reinstatement is ordered, the direction for payment of back wages has to follow and in that regard attention is drawn to the decision in the matter of Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd., and Anr. (supra).
12. In Jitendra Singh Rathor's case, the Apex Court has ruled that 1984-II-LLJ-10 at p. 11:
"5. Wide discretion is vested in the Tribunal under this provision and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is well-settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatement and keeping the delinquency in view could withhold payment of a part or the whole of the back wages. In our opinion, the High Court was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty ....."
13. The Apex Court in the matter of Hindustan Tin Works Pvt. Ltd. (supra), while dealing with the issue that where the termination of service is found to be invalid, whether the reinstatement, as a matter of course, should be awarded or compensation could be adequate relief, and whether withholding of full back wages could be justified, has held that 1978-II-LLJ-474 at p. 477:
"9....... Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when the relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer ....."
The Apex Court has further held that at p. 478:
"11. In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to the laws and not humour. It is not to be arbitrary, vague and fanciful but legal and regular."
14. Bearing in mind the above rulings of the Apex Court, therefore, there is no strait-jacket formula prescribed for awarding relief in relation to the back wages, moment the reinstatement is ordered by vacating the illegal order of termination of services. Normal rule would be direction to pay the back wages. However, when such a direction is objected to, it is incumbent for the Labour Court or the Industrial Court, as the case may be, to take into consideration all the circumstances and exercise its discretion judiciously. Being so, it is necessary to see whether in the case in hand there has been such judicious exercise by the Industrial Court while directing the payment of the entire back wages to the respondent.
15. As already seen above, the Industrial Court while directing the payment of back wages has taken into consideration the fact that giving of loan and collecting the same with the prior permission of the petitioners is no misconduct in terms of the Standing Orders and that therefore the transaction done by the respondent, if it was preceded by the necessary permission, there would have been no misconduct on the part of the respondent. Indeed, the Clause 20(zi) provides that the taking or giving of any loans between any two employees who are in a position of superior/subordinate of the undertaking except with the permission of the General Manager or any officer duly authorised by the General Manager in his behalf, would amount to misconduct. The Standing Orders applicable to the parties, therefore, clearly provides that for the purpose of taking or giving loan between two employees, prior permission of the General Manager or of the duly authorised officer is necessary and without such permission, the act of giving or taking of loan between two employees would amount to misconduct where the punishment, as prescribed under the Standing Order No. 21, which also includes the punishment of discharge from the service, can be imposed. It is well-settled that once the misconduct is proved and the punishment is imposed by the management and when the matter comes before the Court, the findings arrived at in the domestic enquiry are found to be perfectly justifiable, or in case they are found to be perverse or the enquiry to have been vitiated, the further proof produced by the management establishes the misconduct, then in either of the cases the Court is not entitled to interfere with the quantum of the punishment imposed by the management, unless it is found to be shockingly disproportionate to the proved misconduct of the employee. It is also well-established that it is not mere reproduction of the phrase like "shockingly disproportionate" or that "it is not proportionate to the misconduct" that can justify interference by the Labour Court or the Industrial Court in the punishment imposed by the management. It is necessary for the Labour Court or the Industrial Court to analyse the materials on record to justify interference in the punishment imposed by the management and based on such analysis it could arrive at the conclusion about the punishment being disproportionate or not. Undoubtedly, in the case in hand, the Industrial Court has referred to the provision regarding the permission to the employees to enter into transaction of loan and in case of permission being taken, the same does not amount to a misconduct and, therefore, the Industrial Court has held the order of dismissal to be disproportionate punishment to the proved misconduct. However, while directing payment of entire back wages, the Industrial Court has not at all considered as to whether it is obligatory for the management to grant permission in each and every case asked for by the employee or not, and merely because there is a provision for seeking permission for such transaction, it has concluded that the respondent would be entitled for back wages. Certainly, such an exercise cannot be said to be a judicious exercise by the Industrial Court while dealing with the issue pertaining to the entitlement of back wages pursuant to setting aside of dismissal order, more particularly when such a direction is objected to. It was necessary for the Industrial Court to take into consideration all the contentions raised by the parties, including the points as to whether it was obligatory for the management to grant the permission for the transaction of loan between two employees when asked for by the employees, whether in the case in hand there was sufficient justification for grant of such permission or not, whether the provision regarding grant of permission can be of help to the employee wherein it is not a single incident of acceptance of money but more than one incident, and whether in such cases the provision in relation to the permission for such transaction can come to the rescue of the employee to contend that the punishment of dismissal is shockingly disproportionate to the proved misconduct. The Industrial Court has not applied its mind to any of these aspects of the matter and merely because there is a provision for permission, has jumped to the conclusion that the punishment imposed being disproportionate to the proved misconduct the respondent is entitled for back wages on his reinstatement. Certainly, therefore, the petitioners are justified in making grievance regarding the direction for payment of full back wages. The finding in that regard, therefore, having been arrived at without proper application of mind and including the well-established provisions of law, the same cannot be sustained and needs to be set aside and the matter to be remanded to the Industrial Court to decide the issue regarding the payment of back wages afresh, bearing in mind the provisions of law and the observations hereinabove.
16. In the result, therefore, the petition partly succeeds i.e., in relation to the point of direction for payment of back wages. The impugned judgment and order, as far as it directs payment of full back wages on reinstatement of the respondent, is hereby quashed and set aside and the matter is remanded to the Industrial Court to decide the said issue regarding the back wages afresh, bearing in mind the observations hereinabove and in accordance with the provisions of law. Needless to say that since the matter is pertaining to the year 1984, the Industrial Court shall expedite the hearing of the matter and shall dispose of the same, after hearing the parties, within three months from the date of receipt of the writ of this Court. The rule is made absolute accordingly with no order as to costs. Certified copy expedited.