Bombay High Court
Mahindra And Mahindra Limited vs Sunil Yeshwant Pandit And Anr. on 10 January, 2002
Equivalent citations: 2002(3)BOMCR602, [2002(94)FLR564]
Author: Nishita Mhatre
Bench: Nishita Mhatre
JUDGMENT Nishita Mhatre, J.
1. Respondent No. 1 was employed as a fitter in the Nasik factory of the petitioner from 1-9-1983. It appears that on 26-7-1985, when respondent No. 1 was leaving the factory premises on his scooter, the security supervisor on taking search of his scooter found Shank Drill Bits of different diameters under the scooter mat. Respondent No. 1 was charge-sheeted for the offence of theft on 28-7-1985. An enquiry was instituted against him wherein evidence of the security supervisor and the administrative officer of the company was led on behalf of the petitioner and evidence of one Mr. Woodman was recorded on behalf of respondent No. 1. The Enquiry Officer came to the conclusion that respondent No. 1 was guilty of misconduct and that the charges levelled against him had been proved by the petitioner. The petitioner dismissed respondent No. 1 from service on 31-1-1986.
2. Aggrieved by this, respondent No. 1 approached the Deputy Commissioner of Labour, Nasik under the Industrial Disputes Act, 1947 and a reference was made for adjudication of the dispute before the Labour Court. Proceedings were filed before the Labour Court. In its written statement, the petitioner had sought permission to lead evidence in the event the Labour Court came to the conclusion that the enquiry held against respondent No. 1 was not fair and proper.
3. The Labour Court framed two issues, namely, (i) Whether the domestic enquiry held against the workman Shri Sunil Yashvant Pandit is fair, proper and legal; (ii) Does the employer prove misconduct alleged against the workman if the domestic enquiry is vitiated for any reason. The Labour Court held that the domestic enquiry against the workman was fair, proper and legal and, therefore, the second issue did not survive.
4. Evidence was led by the petitioner employer regarding the proportionality of the punishment proposed to be imposed as also the gainful employment of the petitioner during the period after his dismissal. The Labour Court while deciding the Award Part II framed the following issues: (i) Whether the punishment of dismissal awarded to the workman/second party is shockingly disproportionate? (ii) Is the workman/second party entitled to reinstatement with continuity of service and full back wages? (iii) What order and relief? The first two issues were decided in affirmative by the Labour Court. The Labour Court came to the conclusion that respondent No. 1 is entitled to reinstatement with continuity of service and full back-wages.
5. The learned Counsel appearing for the petitioner submits that the Labour Court has erred while deciding Award Part II as the Labour Court sat in appeal to the findings on the Enquiry Officer. He submits that the Enquiry Officer had based his findings on preponderance of probabilities and had held that the charges levelled against the workman were proved. He further submits that the question of ownership of the property that is, the drill bits, did not arise as respondent No. 1 never claimed that the drill bits were his own.
6. Mr. Singh also takes exception to the fact that the Labour Court has decided the matter without categorically coming to the conclusion that the findings of the Enquiry Officer are perverse and has merely decided the matter afresh on the basis of the evidence led before the Enquiry Officer and has come to a different conclusion. He further submits that the employer had no knowledge as to whether the Labour Court had found the findings of the Enquiry Officer were perverse and had consequently no opportunity to lead evidence although permission has been sought in the written statement itself. He further submits that in the event, the findings of the Enquiry Officer are held to be incorrect, it was incumbent on the Labour Court to give an opportunity to the employer to lead evidence afresh and to prove the charge of misconduct against respondent No. 1.
7. He relies on several judgments, namely Indian Iron and Steel Company Ltd. & another v. Their Workmen, 1958(I) L.L.J. 260(S.C.), Fida Film & Hotel Co. Pvt. Ltd. v. Theatre Employees Union & others, 1986(I) C.L.R. 255, Bharat Forge Company Ltd. v. A.B. Zodge & another, 1996(II) C.L.R. 345, Bharat Sugar Mills v. Jai Singh, 1961(II) L.L.J. 644(S.C.), Workmen of Firestone Tyre & Rubber Co. v. Management, 1973(I) L.L.J. 278(S.C.), Bombay Port Trust v. Vishnu Vithal Vichare, 1997(II) C.L.R. 7852(Bombay), Swastik Rubber Products v. Pandurang Ramchand, 1999(81) F.L.R. 113 Bombay, unreported judgment of this Court in A.R. Joshi v. Air India Ltd. & another, Writ Petition No. 1523 of 1997 a/w Writ Petition No. 1479 of 1999, in support of his submission that an opportunity ought to have been given to the employer to lead evidence before coming to the conclusion that the punishment was shockingly disproportinonate.
8. Mr. Bapat, learned Counsel for respondent No. 1, submits that all that the Labour Court has done is exercised its powers under section 11-A of the Industrial Disputes Act (hereinafter referred to as 'the Act'). He submits that the Labour Court has accepted that the enquiry held against respondent No. 1 was fair and proper. However, on the basis of the evidence on record, the Labour Court has come to a different conclusion, which he is entitled to under the powers conferred by virtue of section 11-A of the Act. He further submits that the Labour Court has rightly concluded that the evidence led before the Enquiry Officer did not indicate that the respondent was guilty of the misconduct and theft and, therefore, has held that the misconduct has not been proved. He further submits that where the Labour Court has not held that the enquiry is vitiated due to perversity of the findings of the Enquiry Officer, therefore there was no reason to give any opportunity to the employer to lead evidence to fill in the lacunae which may exist at the time when the enquiry was decided. The learned Counsel also submits that once the Labour Court came to the conclusion that there was no misconduct on the part of respondent No. 1 then the only alternative that the Labour Court had was to reinstate respondent No. 1 which the Labour Court has rightly done. He urges that assuming that there was a misconduct, it is always open for the Labour Court by exercising powers under section 11-A to determine as to whether the gravity of the misconduct is such as to warrant the punishment of dismissal.
9. I am inclined to agree with the submission made by the learned Counsel for the respondent. What the Labour Court has done is that it reappreciated the evidence led before the Enquiry Officer and has come to the conclusion that respondent No. 1 has not committed any misconduct. He bases his findings on the fact that the ownership of drill bits is not proved and, therefore, has come to a different conclusion that the Enquiry Officer erred in his findings. This is merely an exercise of the powers vested in the Labour Court under section 11-A of the Act to reappreciate the evidence and reappraise the same.
10. The Apex Court in the case of Workman of F.T. & R. Co. v. The Management, considered the powers of the Labour Court and the scope of section 11-A to interfere with the dismissal. The Apex Court has held that under section 11-A, the Labour Court or Tribunal is empowered to reappraise the evidence and examine the correctness of the findings and to interfere with the finding if necessary. It has observed as follows:
"It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately, it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it and when it has to adjudicate upon the dispute referred to it in which and employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by section 11-A."
11. Mr. Singh's submission that the Labour Court has erred by not permitting the employer to lead evidence to justify the action of dismissal cannot be countenanced. His reliance on the decisions mentioned above is also misplaced. In the case of Bharat Forge (supra), the Apex Court was dealing with a case where the enquiry was properly held, yet the findings of the Enquiry Officer were found to be perverse by the Tribunal. In those circumstances, no opportunity was given to the management to lead evidence. The Apex Court held that where the findings recorded are found to be perverse by the Tribunal, it is necessary to permit the employer to lead evidence to substantiate the charges provided the employer has requested this permission at the appropriate stage. This judgment, in my view, has no application to the facts of the present case where the Labour Court has not come to the conclusion that the findings of the Enquiry Officer are perverse.
12. The next judgment relied upon by Mr. Singh in the case of Fida Film & Hotel (supra) also was a case in which the findings of the Enquiry Officer were held to be perverse and yet no permission was granted by the Labour Court to lead evidence. Considering this, this Court decided that when the Tribunal or the Labour Court comes to the conclusion that the findings of the Enquiry Officer are without any evidence whatsoever and, therefore, perverse, an opportunity must be given to the employer to substantiate the charge against the workman. This judgment also cannot help the case of the petitioner for the same reasons as set out above.
13. The next judgment relied on by Mr. Singh in Zandu Pharmaceuticals Works Ltd. v. D.S. Mishra & another, 1992(I) C.L.R. 634, was a case in which the workman was charge-sheeted on two counts of misconduct. With respect to one of the misconducts, the Labour Court held that the findings of the Enquiry Officer were perverse whereas in respect of other misconduct, the Labour Court found that the findings were not perverse, but improper. The Division Bench took the view that since the second charge was not substantiated as there was no evidence in support of the findings of the Enquiry Officer, the findings were in fact perverse and not improper and, therefore, remanded the matter and permitted the employer to lead evidence to substantiate both the misconducts.
14. In Goa Co-operative Printing Press Ltd. v. Industrial Tribunal & another, : 1999(1) L.L.N. 151, the learned Single Judge of this Court (R.M.S. Khandeparkar, J.) was dealing with the powers of the Labour Court under sections 78 and 79 and has held that since the findings of the Enquiry Officer were perverse, the Tribunal ought to have afforded the employer an opportunity to lead evidence to substantiate the charges against the workman. This judgment also cannot help the employer as it proceeds on the fact that the enquiry was vitiated as the findings were perverse. Again in the case of A.R. Joshi (supra), in an approval application, a similar view had been taken where the findings were found to be perverse by the Tribunal. Mr. Singh then relied on Bombay Port Trust and the case of Swastik Rubber Products (supra). In both these cases, the view taken is similar that where the findings of the Enquiry Officer are held to be perverse, the enquiry itself is vitiated and hence, the employer must be given an opportunity to substantiate the charges against the workman.
15. While exercising the power under section 11-A, the Labour Court has to first determine as to whether the enquiry has been held correctly and fairly procedurally; i.e., whether the workman has been given an opportunity to defend himself at the enquiry; whether copies of the evidence led before the Enquiry Officer has been led in presence of the workman; whether the workman has been permitted to be defended by either his co-workman or the union representative or such other person mentioned in the Standing Orders governing the establishment. The Labour Court must then decide as to whether the enquiry is vitiated because the findings of the Enquiry Officer may be perverse. The findings of the Enquiry Officer can be said to be perverse when there is no evidence or when the conclusions drawn by the Enquiry Officer are such that no reasonable person would adopt or that the findings are so outrageous or absurd that it would shock the judicial conscience of the Labour Court or the Tribunal to accept the same. If the Labour Court decides that the enquiry is vitiated on this ground although it may have been conducted properly, procedurally, the Labour Court must give an opportunity to the employer to lead evidence if the employer has requested for such an opportunity at an appropriate stage as held in several decisions of the Apex Court and several High Courts. In the event that the Labour Court decides that the findings are not perverse but are such that it would come to a different conclusion, it is open for the Labour Court in exercise of section 11-A to reappraise the evidence and come to a different conclusion. In such an event, it is not necessary for the Labour Court to give an opportunity to the employer to lead evidence. While exercising powers under section 11-A, as held by the Supreme Court, the Labour Court virtually sits in appeal against the findings recorded by the Enquiry Officer. The Industrial adjudicator has the power to decide as to the adequacy of the evidence and the conclusion on facts drawn by the Enquiry Officer. It is not necessary to give the employer an opportunity to lead evidence in every case where the Labour Court differs with the findings of the Enquiry Officer, unless the findings are perverse.
16. In the present case as stated above, the Labour Court has drawn a different conclusion based on the evidence led before the Enquiry Officer and it has rightly observed that the petitioner was unable to prove the ownership of the drill bits and, therefore, when the charge itself was based on the fact that the petitioner owned the drill bits the charge had not been adequately proved. Further, as observed by the Labour Court, there was evidence on record before the Enquiry Officer that the parking lot is accessible at all times to anyone and, therefore, the drill bits could have been planted by somebody else.
17. I see no reason to interfere with the findings of the Labour Court that the respondent is not guilty of misconduct. The evidence before the Enquiry Officer shows that the witnesses (security personnel) had directly approached the respondent and looked under the scooter mat when he was leaving the company. It is improbable that the security personal would only look under the scooter mat directly and not search the other parts of the scooter or the person of the respondent while he was leaving the premises if they were carrying out a routine check. When the misconduct itself has not been proved, the only option left is to grant reinstatement with continuity of service and full back-wages. In the present case, the respondent deserves to be reinstated. However, as regards the back-wages, the respondent is entitled to the same after setting off the amount that was paid to him under section 17-B of the Industrial Disputes Act.
18. In the circumstances of the case, writ petition is dismissed. Rule discharged. No order as to costs.
19. Issuance of certified copy of this order is expedited.