Bombay High Court
Association Of Engineering Workers vs Hindustan Motor Manufacturing Company on 14 January, 2004
Equivalent citations: [2004(102)FLR154], (2004)IILLJ790BOM
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. Heard advocates for the parties. Perused the papers. The petitioner challenges the Award dated May 29, 2001 in Reference Case No. 645 of 1994 by the Labour Court at Mumbai whereby the punishment of dismissal from service imposed upon the employee, namely, Kashinath Bhere has been confirmed.
2. Few facts relevant for the decision are that the charge sheet came to be issued against the employee on May 1, 1993 and as notice regarding the enquiry was returned with the postal remark as "unclaimed" by the employee, the domestic enquiry proceeded ex pane and four other persons against whom the common charge sheet was issued. The Enquiry Officer by his report dated July 7, 1993 held the charges levelled against the employee to have been proved and the Disciplinary Authority by its order dated July 16, 1993 while accepting the findings of the Enquiry Officer issued the order of dismissal of the employee from service on the ground of misconduct. The dispute having been raised in respect thereof, the same was referred for adjudication in terms of Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947 to the Labour Court. The Labour Court by its Award (part I) dated April 27, 2001 held that the enquiry conducted against the employee was fair and just and there was no violation of the principles of natural justice and the findings arrived by the Enquiry officer were not perverse and ultimately by Award (part II) dated May 29, 2001 confirmed the punishment imposed upon the employee. Hence, the present petition.
3. The impugned award is sought to be challenged on various grounds. However, it is not necessary to deal with those grounds and suffice relating to the challenge to the finding of the Labour Court that the enquiry was fair and proper and the findings of the Enquiry Officer being not perverse. Placing reliance on the decision of Apex Court in the matter of Khardah and Co. Ltd. v. Their workmen , the learned advocate appearing for the petitioner submitted that bare perusal of the report of the Enquiry Officer discloses that there was neither analysis of the evidence recorded in the report nor even an attempt made by the Enquiry Officer to ascertain as to how the evidence produced by the employee establishes the allegation of misconduct on the part of the employee and without application of mind has been arrived at the conclusion about the misconduct on the part of the employee. The impugned Award neither discloses the reasons for arriving at the findings arrived at by the Enquiry Officer nor discloses the application of mind by the Enquiry Officer to the matter in issue and therefore the conclusion arrived by the Labour Court that the enquiry conducted was fair and just and the finding is not being perverse is totally contrary to the materials on record and hence perverse and needs to be set aside and for the same reason the Award confirming the punishment also should be set aside.
4. The Apex Court in Khardah case (supra) after elaborately discussing the reasons for necessity of and scrutiny of the material before arriving at the findings regarding the guilt of the delinquent in relation to the charges levelled against him or her, has ruled that 1963-II-LLJ-452 at pp. 456, 457:
"If industrial adjudication attaches importance to domestic inquiries and the conclusions reached at the end of such inquiries, that necessarily postulates that the enquiry would be followed by a statement containing the conclusion of the Enquiry Officer. It may be that the Enquiry Officer need not write a very long or elaborate report; but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his conclusions and to indicate briefly his reasons for reaching the said conclusions. Unless such a course is adopted, it would be difficult for the Industrial Tribunal to decide whether the approach adopted by the Enquiry Officer was basically erroneous or whether his conclusions were perverse."
5. The Ruling of the Apex Court therefore clearly discloses the necessity for analysis of the evidence by the Enquiry Officer before arriving at the finding regarding the misconduct of the workmen. It is necessary for the Enquiry Officer to analyse the evidence and to disclose from such analysis as to how the allegations against the workmen are established by the evidence led by the employer. It is not a mere formality on the Enquiry Officer to conclude that allegations are proved by the evidence on record would suffice the requirement of law in that regard but the exercise of analysis of evidence should be disclosed from the application of mind by the Enquiry Officer to the facts brought on record vis-a-vis the allegation of misconduct by the workman and such an exercise should be revealed on the face of the record of the report of the Enquiry officer itself. In the absence thereof, as rightly submitted by the advocate for the petitioner, it cannot be said that the Enquiry Officer has applied his mind to the matter in issue nor it can be said that the findings by the Enquiry Officer are borne out from the record. On the contrary in the absence of analysis it would have to be concluded that the findings are perverse. It is also to be noted that report of the Enquiry Officer is essentially to help the Tribunal to ascertain whether the approach of the Enquiry Officer in arriving at the findings had been appropriate or erroneous and whether the conclusions are perverse or not, beside being of great help to the workmen to place his contentions before the Disciplinary Authority in the matter of imposition of punishment, if any.
6. Perusal of the Enquiry report in the case in hand, undoubtedly discloses that it runs into as many as 26 pages. However, out of said 26 pages as many as 10 pages thereof are utilised merely for reproduction of the issue and for narration of the proceedings relating to the issuance of the charge sheet and service of charge sheet. Out of the remaining 20 pages, about 18 pages disclose summary of testimonies of the witnesses examined in the course of the enquiry. The analysis of the evidence, if at all it can be said to be one, and the finding by the Enquiry Officer are comprised in one paragraph, i, e. the paragraph No. 38 and it reads that "in view of my findings on the above issues 1 to 23 in the affirmative I hold that the following acts of misconduct levelled against Sarvashree K.D. Bhere, S.R. Waze, P.K. Jikamde, A.S. Darde, S.G. Gang in the charge sheet dated May 1, 1993 which has been reproduced hereinabove have been proved." The affirmative finding referred to in the said paragraph is to be found in paragraph No. 10 of the Report, which reads that my findings on the above issues No. 1 to 23 are in affirmative. The paragraph 11 speaks about the reasons for findings and it reads that the reasons in support of my findings above were discussed herein below in respect of issues No. 1 to 23. Paragraph Nos. 12 to 37 summarises the testimonies of the witnesses. The said paragraph nowhere analyses the evidence vis-a-vis allegations of misconduct by the workmen, in other words in four sentences which merely disclose the conclusion that the issues are being answered in affirmative and the acts of misconduct alleged against the employee are proved. Apart from that no efforts have been made by the Enquiry Officer to ascertain whether any testimony of any of the witnesses disclose the involvement of the employee in any of the acts of misconduct alleged against the employee. It is not the general conclusion in the manner the Enquiry Officer has drawn in his report could be said to be a finding in relation to allegation of the misconduct based on appreciation of evidence to hold that the findings are borne out from the record. The report should disclose the overall analysis of the evidence in relation to the allegations of the misconduct against the workmen and in the absence thereof the findings cannot be held to be borne out from the record, and on the contrary in the absence of such exercise on the part of the Enquiry Officer disclosed from its report, the findings will have to be held to be perverse.
7. As the report in question nowhere discloses analysis of evidence nor any efforts on the part of the Enquiry Officer to link any part of the evidence with the allegation of misconduct on the part of the employee, the findings arrived at by the Enquiry Officer are to be held as perverse. On that ground alone the Award (part 1) needs to be set aside. Once the finding of the Enquiry officer are held to be perverse, certainly there cannot be any occasion for the Labour Court to confirm the order of termination of service of the workmen and in such circumstances when the employer had prayed for opportunity to lead further evidence in support of the charges, such an opportunity has to be given to the employer. Indisputably in the written statement filed before the Labour Court, the respondent employer had clearly stated that if the Court comes to the conclusion that the enquiry is not fair, proper and justified, then it is prayed that this Hon'ble Court may be pleased to allow the company to lead the evidence to substantiate the charges....... Apparently right to lead the evidence in support of charges in case of findings by the Enquiry Officer being found perverse as reserved by the respondent company. While setting side the impugned award, the matter will have to be remanded to the Labour Court to give an opportunity to the respondent company to substantiate charges against the petitioner.
8. In the result, while leaving open all the issues sought to be raised by the parties, the impugned awards are hereby quashed and set aside and the matter is remanded to the respondent company to lead evidence in support of the charges against the employee and thereafter for the Labour Court to dispose of the case in accordance with the provisions of law. Considering the fact that the matter relates to the year 1994, needless to say that the Labour Court is expected to dispose of the matter as expeditiously as possible and in any case on or before December 31, 2004. The petition made absolute with no order as to costs.
9. Parties to act on an ordinary copy of this order duly authenticated by the P. A. of this Court.