Bombay High Court
Municipal Corporation Of Greater ... vs S.E. Phadtare And Ors. on 30 November, 1993
Equivalent citations: [1994(68)FLR674], (1995)ILLJ70BOM
JUDGMENT M.L. Pendse, J.
1. The appellant is a statutory corporation duly constituted under the provisions of Bombay Municipal Corporation Act, 1888, and is entirely engaged in public utility service of supply of electricity and transport services to the citizens of Bombay. The appellant had engaged large number of employees and runs a fleet of buses in the city of Bombay. The employees in the year 1982, were represented by three rival unions, viz. (a) BEST Workers Union controlled by George Fernandez; (b) BEST Employees Union controlled by Bhaurao Patil and (c) BEST Kamgar Union controlled by Datta Samant. The elections for 7 seats of the BEST Employees Co-operative Credit Society were held on December 17, 1982 at 19 centre spread over Bombay. The ballot boxes were brought to Electric House for the purpose of counting. Electric House is situated next to Colaba Police Station and is used as the head office by the undertaking and also as a terminus for buses. The counting of votes commenced at about 10 a.m. on December 18, 1982. The counting of votes was likely to create tension amongst the workers representing the three Unions and to prevent any law and order problem, the police party from Colaba Police Station was posted near Electric house. The Police party consisted of Senior Police Inspector Purohit, Police Inspectors Borade and Karande, and Sub-Inspectors Kamble, Deshmukh, Mhamane and Wadkar. In addition to these officers and constables, a platoon of State Reserve Police Force and three wireless mobile vans were deployed for bandobast duty at Electric House. The workers owing allegiance to the Union controlled by Datta Samant started gathering near gate No. 3 of Electric House, while those owing allegiance to the Union controlled by George Fernandez collected near gate No. 4. Both the gates are situated on the main Colaba Cause-way road. The counting of votes concluded at about 1 a.m. and all the 7 seats were captured by the Union controlled by George Fernandez. The result of the election annoyed and upset the workers controlled by Datta Samant. The police party, realising the likelihood of trouble between the two group of workmen, dispersed them in different directions but the workers represented by Datta Samant refused to disperse and started pelting stones.
2. The members of the Union of Datta Samant not only pelted stones at the police party which was trying to disperse the workers, but stones were pelted on the B. E. S. T. vehicles passing along the road and large number of buses were damaged. The police party tried to do so and, in fact, some of the police officers and constables received injuries. The police then resorted to mild cane charge to save the situation. The workers then started dispersing. Sub-Inspector Kamble noticed 7 workers including respondent No. 1 instigating the workers to resort to violence and pelt stones on the BEST vehicles and police party. Sub-Inspector amble thereupon arrested the 7 workers including respondent No. 1. The arrested persons were made to sit in a wireless mobile van which was available on the spot and then removed to police station. First information report was filed on December 19, 1982 at 1.30 a.m. by Sub-Inspector Johri and the nature of offence alleged was rioting by pelting stones, assault on the public servants while discharging lawful duties and mischief by damaging the BEST vehicles. The arrested persons were charged with offence punishable under sections 143, 145, 147, 148, 332 and 427 of the Indian Penal Code. Statements of Sub-Inspector Johri and Sub-Inspector Kamble who had arrested respondent No. 1, were recorded immediately.
3. On December 20, 1982, Mishra, Accident Inspector working with the Undertaking, received message to contact Police Inspector Borade of Colaba Police Station to get details of the disturbance in connection with the election of BEST Credit Society. Mishra contracted the police officer and learnt that inspite of several warning issued by the police, the arrested accused including respondent No. 1 indulged in throwing stones on BEST buses and police. After gathering the information, respondent No. 1 was served with a charge-sheet dated April 21, 1983 for the misconduct committed. The charge-sheet sets out that respondent No. 1 and his fellow employees were giving slogans loudly and pelting stones on the buses on Shahid Bhagat Singh Road and near the Museum Terminus, and in the stone throwing many buses were damaged and two police constable were injured. Respondent No. 1 was charged with the following acts and/ or omission amounting to misconduct :
(1) Committing riot or chaos at or near the Museum Terminus or behaving rudely or doing an act which is subversive of discipline.
This charge was in accordance with Standing Order 20(i).
(2) Wilful damage to or sabotage or loss of the goods or property of the Undertaking.
This Charge was in accordance with Standing Order No. 20(d).
The charge-sheet specifically provides that if the charges are established, respondent No. 1 is liable to be imposed with punishment mentioned in clause (c) to (h) of clause (1) of Standing Order 21. The charge-sheet further recites that respondent No. 1 is permitted to be defended by a representative under Section 30 of the Bombay Industrial Relations Act, 1946, or by an employee of the choice of respondent No. 1.
4. Respondent No. 1 appeared before the Enquiry Officer and claimed that after finishing duty, he had come to Electric House and was standing with other staff members near Apsara Show Room. Respondent No. 1 admitted that he was present when the results of the elections were declared but claimed that thereafter immediately he left Electric House and walked up to University building which is at a distance of more than a furlong. Respondent No. 1 claimed that a police wireless van caught respondent No. 1 and other arrested persons near the University building and they were brought down to Colaba Police Station. Respondent No. 1 denied having instigated the co-employees to indulge in violence or throw stones at BEST buses and the police party. Respondent No. 1, claimed to be the office bearer of the Union represented by Datta Samant.
5. Before the Enquiry Officer, apart from examining Accident Inspect Mishra, testimony of Sub-Inspector Kamble, who had arrested respondent No. 1, was recorded. The Enquiry Officer by an exhaustive order held that the testimony of Sub-Inspector being a responsible officer who was posted for bandobast duty at the relevant time. The Enquiry Officer notes that the fact that Kamble arrested respondent No. 1 was not debated. The Enquiry Officer further held that since the charges proved against respondent No. 1 are of a very serious nature as the acts, apart from tarnishing, the image of the Undertaking, had caused heavy damage to the property of the Undertaking, punishment of dismissal is necessary. Accordingly, by order dated June 13, 1983 respondent No. 1 was dismissed from service. Respondent No. 1 carried appeal before the Assistant Traffic Superintendent as prescribed under the Standing Orders but he appeal ended in dismissal by order dated August 18, 1983. Respondent No. 1 preferred second appeal but he that also met with the same fate on December 21, 1983.
6. Respondent No. 1 then forwarded an approach letter as prescribed under the provisions of section 42(4) of Bombay industrial Relations Act and thereafter filed a petition under sections 78 and 79 of the said Act before the Presiding Officer of Labour Court seeking reinstatement with full back wages and continuity of service. Respondent No. 1 claimed that the departmental enquiry was not fair, legal and proper and the Enquiry Officer's findings were perverse. It was claimed that the Charge-sheet served on respondent No. 1 was vague and the departmental enquiry could not have been held while criminal proceedings were pending. It was also claimed that the Enquiry Officer was in error in denying permission for Vaswani to represent respondent No. 1 in the enquiry proceedings. The contention that the enquiry was not fair was controverted by the Undertaking by pointing out that every opportunity was given to the employee to defend the proceedings. The Labour Court framed various issues and the Undertaking, without prejudice to their contention that the enquiry was fair, offered to lead evidence in support of the charges leveled against respondent No. 1. The Labour Court thereupon recorded the evidence of respondent No. 1 and Sub-Inspector Kamble and Accident Inspector Mishra. On consideration of the evidence, the Labor Court came to the conclusion that the enquiry was not fair and proper because the employee was not permitted to be represented by Vaswani, an office bearer of the Union. The Labour Court further held that the findings of Enquiry Officer were not proper. The Labour Court held that the Undertaking failed to establish that respondent No. 1 committed misconduct. This finding was recorded on the basis that the evidence of Sub-Inspector Kamble was not acceptable. On the strength of this finding, the Labour Court by order dated October 27, 1989 directed that respondent No. 1 be reinstated with full back wages and continuity of service.
7. The Undertaking challenged the order of the Labour Court by filing appeal as prescribed under Section 84 of the Bombay Industrial Relations Act before the Industrial Court, Bombay. The appellate authority held that the enquiry was fair and just but the findings of the Enquiry Officer were not proper. The appellate authority held that the misconduct with which respondent No. 1 was charge-sheeted was not proved because the testimony of Sub-Inspector amble could not be accepted. Reasons for not accepting the testimony as will be examine are difficult to imagine. On the strength of this finding, the appeal was dismissed. The Undertaking then preferred Writ Petition No. 3377 of 1991 to this Court. The learned single Judge by the impugned order dated November 1991 held that though the decision recorded by appellate authority is not happy or totally satisfactory, the conclusion is correct or at least possible view of the matter and, therefore, there is no justification for interference. With this observation the petition was summarily dismissed and this order is under challenge in this appeal.
8. Mr. Singhvi, learned Counsel appearing on behalf of the Undertaking, submitted that the findings recorded by the appellate authority is perverse. The learned Counsel submitted that the reasons given by the appellate authority to discard that testimony of Kamble is impossible to imagine. The learned Counsel urged that it is not in dispute that the police party was deployed near Electric House on realising that the trace union represented by Datta Samant the trade union represented by Datta Samant was likely to create problem. The fact that Sub Inspector Kamble was on duty at the relevant time and Kamble had arrested respondent No. 1 is not in dispute. Mr. Singhvi urged that it is not permissible to record perverse finding only with a view to help an employee who had indulged in rioting and stone throwing on BEST vehicles. It was urged that the appellate authority held that the enquiry was fair and proper and principles of natural justice were not violated and after recording that finding, it is impossible to conclude that respondent No. 1 is entitled to reinstatement with full back wages. We find considerable merit in the submission urged by the learned Counsel. Mr. Deshmukh, learned Council representing respondent No. 1, on the other hand, submitted that the authorities below have correctly discarded the testimony of Kamble and it is not permissible to disturb that finding in exercise of writ jurisdiction. It was submitted that in the statement recorded the identity of the accused whom he had arrested and Kamble was also not able to identify respondent No. 1 during the enquiry. Mr. Deshmukh submitted that the acts alleged against respondent No. 1 do not amount to misconduct. The learned Counsel further submitted that even assuming that respondent No. 1 had indulged in rioting and had instigated and had throw stones on BEST buses causing severe damage, still it is not open for the Enquiry Officer to punish respondent No. 1 as the said misconduct was not on the premises of the Undertaking.
9. In view of the above rival submission, the first point that arises for determination is as to whether the appellate authority was justified in discarding the testimony of Kamble ?
As mentioned above, there is no dispute that counting of votes were undertaken at Electric House and the members of Union represented by George Fernandez and Datta Samant were present in sufficiently large number at the time of declaration of the results. It is also not in dispute that a large police party was deployed for bandobast on apprehension that some of the workers are likely to indulge in violence. It is further not in dispute that the incident did take place and the police party were required to disperse the mob by using force and Sub-Inspector Kamble arrested 7 accused persons who had indulged in rioting and pelting stones. It is not in dispute that respondent No. 1 was arrested and was taken to Colaba Police Station and was subsequently charged for committing various offences in the Criminal Court. With this background, it is necessary to turn to the testimony of Kamble which was recorded by the Labour Court. We are fully conscious that tin exercise of writ jurisdiction, it is not open for this Court to reappreciate the evidence and we do not propose to undertake that exercise. We are merely referring to the testimony of Kamble with a view to demonstrate how perverse finding has been recorded by the appellate authority. Kamble disposed by the appellate authority. Kamble deposed that the atmosphere at the Electric House had become tense after declaration of the results. Kamble then stated that the Undertaking had arranged for some buses to take the employees to their homes. The group represented by the Union of Datta Samant were sitting on the road and suddenly started pelting stones. The police made a cane charge to disperse the workers but the group suddenly became violent and started pelting stones at the police vans and BEST buses. Kamble further deposed that he personally arrested employees but he could remember only the names of 3 employees including the name of respondent No. 1. In cross-examination Kamble stated that he could recognise the workers belonging to a particular Union because of the flags carried by them ad also from the slogans which they were shouting. Kamble deposed about drawing panchanama of the scene of the offence which records the fact that stones were thrown and buses were damaged. Kamble deposed that out of the 7 persons arrested by him, some were instigating and some were pelting stones. In cross-examination Kamble was asked whether he could state as to whether the employees arrested by him started throwing stones first or the employees arrested by other police officer started throwing stones earlier. The witness naturally answered that he cannot answer such question, but made a positive statement that he noticed 9 employees throwing stones and the buses being damaged. By plain randing of the testimony of Kamble, we fail to appreciate how the claim made by Kamble can be disbelieved. It is not the contention of respondent No. 1 that the police officer Kamble had a particular interest to involve the workmen belonging to a particular Union. In fact, Sub-Inspector Kamble even did not previously knew that workmen.
10. The appellate Court in paragraph 19 of the judgment observed that the testimony of police witness does not have any other standard of application difference than the common witness. There cannot be any quarrel with the proposition. The appellate Court then observed that Police Inspector Kamble was present at the time of the incident but that does not show that he had witnessed the incident. It is difficult to understand what according to the appellate authority Inspector Kamble was watching, when specifically posted or bandobast duty. The appellate authority then gives four reasons to discard the testimony of Kamble. The first reason is that as Kamble and other police officers were present at the spot, they should have stopped the stone throwing immediately but they did note do so. We are afraid, we cannot even understand what the appellate Court had in its mind. The second reason is that Sub-Inspector Kamble may not be interested in the Undertaking but at the same time was interested in proving his own charges. This reason is entirely devoid of merit. Kamble was specifically deployed for bandobast duty and had arrested the persons who were indulging in rioting and the statement of Sub-Inspector Kamble was recorded forthwith. It is difficult to understand how the testimony of Kamble can be rejected by a general observation that he was interested in proving his own charges. The third reason given by the appellate authority is that the statement of Sub-Inspector Kamble recorded on lodgment of first information report is not a substantive part of the evidence in the enquiry or other proceedings before the Labour Court. This reasons is also entirely devoid of merit. The statement of Kamble recorded by the police was not merely produced during the enquiry or before the Labour Court but Sub-Inspector Kamble entered the witness box both before the Enquiry Officer and before the Labour Court. It is, therefore, impossible to accept the reasoning of the appellate authority that the testimony of Sub-Inspector Kamble before the Labour Court is not substantive evidence.
1st December, 1993.
The last reason furnished by the appellate authority is that the statement of Sub-Inspector Kamble is not admissible in view of Section 162 of the Code of Criminal Procedure. The reasoning is entirely fallacious. The provisions of the Code of Criminal Procedure are not attracted in respect of a statement recorded by the police and which is to be used in a departmental enquiry. Apart from the fact, in the present case, it is not the statement recorded by the police which is produced but the witness himself is examined both before the Enquiry Officer and the Labour Court. In our Judgment, the Labour Court had misdirected in considering the testimony of Kamble both on facts and in law. It appears that the appellate authority had pre-determined that the testimony of Kamble is to be discarded, and then found different reasons which are unsustainable. In our, judgment, the testimony of Kamble requires to be accepted as it does not suffer from any infirmity. The appellate authority also observed that unless the testimony is corroborated by other witnesses, it is not possible to place reliance. We are unable to share the view of the appellate authority. There is no rule of evidence which requires that the testimony cannot be accepted without corroboration. In our judgment, the appellate authority was clearly in error in discarding the testimony of Kamble and holding that the Undertaking failed to establish the charges leveled against respondent No. 1. The testimony of Kamble conclusively establishes the participation of respondent No. 1 both in the act of rioting and tin damaging BEST buses at the relevant time.
11. Mr. Deshmukh submitted that even assuming that the finding recorded by the authorities or discarding the testimony of Kamble is erroneous, still it is not open to their Court to reverse the decision in exercise of writ jurisdiction. The learned Counsel urged that the single Judge, after observing that the decision is not happy and totally satisfactory, declined to exercise writ jurisdiction and this Court, while sitting in appeal, may reiterate the observation of the leaned single Judge but need not set it aside. We are not inclined to accept this submission. The writ jurisdiction is to be exercised for correcting obvious injustice and the restraint exercised by this Court while exercising writ jurisdiction cannot be treated as a licence for passing any perverse orders by the lower authority. In our judgment, the decision is perverse and unsustainable on the material on the record.
12. Mr. Deshmukh then urged that the statement of Kamble made before the Labour Court is at variance with the statement recorded by the police officers at the time of lodgment of first information report. The learned Council urged that in the statement recorded at the earliest stage Kamble did not disclose the names of 7 persons whom he had arrested and whom Kamble claims were either investigating the workers to resort to violence or were pelting stones. Mr. Deshmukh read part of the statement to advance his submission. It must be pointed out that the effort of the Counsel was nothing short but to mislead the Court. The Counsel read the statement of Sub-inspector Johri and not of Sub-Inspector Kamble. When the attention of the Counsel was drawn to the fact that deliberately statement of Johri is read to suggest that it is the statement of Kamble, the Counsel had no answer. In the statement of Kamble which was recorded immediately after the incident, Kamble had specifically stated :
"I with the assistance of my staff arrested the following persons (point to Balram Shankar Lal, Pandharinath Damodar Jadhav, Arjun Babu Nalwade, Sopan Eknath Phadtare, Vishnu Bhaurao Godge). These persons were instigation the workers to resort to violence. Krishna Waman Rane, Pralhad Ratan Sonawane were pelting stones on the BEST vehicles and police party."
A mere perusal of the statement of Kamble leave no manner of doubt that Kamble had involved respondent No. 1 as a participant No. 1 on the spot. As Kamble had disclosed the names of the persons who were arrested at the time of the incident and has specifically referred them in the statement recorded by the police, respondent No. 1 did not even cross-examine Kamble while he was in the witness box before the Labour Court. Its obvious that Mr. Deshmukh tried to mislead the statement of Kamble to claim that Kamble had not disclosed the names of the workers arrested including respondent No. 1 and had not identified him. The submission, therefore, requires to be turned down.
13. Mr. Deshmukh then submitted that the charge-sheet served upon respondent No. 1 was vague and that has caused prejudice to respondent No. 1 in defending the enquiry. The submission cannot be accepted for more than one reason. A perusal of the charge-sheet leaves no manner of doubt that all relevant facts were set out and respondent No. 1 was charged for acts or omissions which amounts to misconduct in accordance with Standing Order 20. The Standing Orders are settled by the Commissioner of Labour under Section 35(2) of the Bombay Industrial Relations Act and by the industrial Court under section 36(3) of the Act. The charge-sheet invites the attention of respondent No. 1 to act of committing riot or chaos at or near Museum Terminus and also causing wilful damage or loss of goods or property of the Undertaking. Mr. Deshmukh tried to suggest that it was not clear to respondent No. 1 as to what exactly he had done. It may not be clear to Mr. Deshmukh but it was clear to respondent No. 1 and also to the Enquiry Officer and the Labour Court. The contention that the charge-sheet served upon respondent No. 1 was vague was raised before the Labour Court and the Labour Court did not find any merit in the same. The contention was not even advanced before the appellate authority. In our judgment, the contention is devoid of any merit.
14. Mr. Deshmukh also submitted that the acts committed by respondent No. 1 even if amounts to misconduct, the charge that it was subversive of discipline is not established. We do not see any difference between the acts or omissions which amount to misconduct and the acts which are subversive of discipline. This contention is also devoid of any merit.
15. Finally Mr. Deshmukh submitted that it is not established that the misconduct of respondent No. 1 was committed on the premises of the Undertaking, and, therefore, respondent leveled. Reference was made to the definition of 'premises of the Undertaking' in the Standing Order 3(h). The expression means and includes the place of employment and all landed properly, built or unbuilt, belonging to the undertaking together with the necessaries, open spaces, gardens, etc., thereto attached but does not include residential quarters and tenements occupies by employees on rent and their attached compounds. Reference was made to decision of the Supreme Court in M/s. Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut and Others , and it was urged that the misconduct alleged is not on the premises of the Undertaking. It is not possible to accept the submission for more than one reason. In the first instance, the Supreme Court in the decision in Mulchandani Electrical and Radio Industries Ltd. v. The Workmen , held that an employer had a right to take action against a delinquent employee in respect of misconduct which may have occurred outside the premises of the employer but which has a causal connection and proximate connection with the place of the work. The decision in Mulchandani's case was referred to in the Glaxo's case on which Mr. Deshmukh placed reliance and the judgment in Mulchandani's case was reaffirmed. The Supreme Court in Glaxo's case specifically observed that the question as to whether there is a causal connection or a nexus with the place of work will have to be determined with reference to the facts and circumstances of each case. Therefore, the contention of Mr. Deshmukh that a the act of rioting and stone throwing on BEST buses had taken place outside the premises of the Undertaking, it is not open to hold respondent No. 1 guilty of misconduct, cannot be accepted. Secondly, the contention that the misconduct was not on the premises of the Undertaking is also not correct on the facts and circumstances of the case. The charge-sheet as well as the evidence led before the Enquiry Officer as well as the Labour Court clearly establish that the act of rioting was committed at the head office of the Undertaking viz., Electric House, Colaba. The rioting had also taken place at Museum Bus Terminus which was also the premises of the Undertaking. Apart from this, respondent No. 1 was guilty for instigating other workers and pelting stones at the BEST buses which were on the road. Pelting stones at the BEST buses and causing damage amounts to damaging the property of the Undertaking and it is futile to suggest that even if stones are pelted and damage is done, to BEST buses, the action will not amount to misconduct because the buses were not on the premises of the undertaking. The Undertaking is rendering service of transporting passengers in buses and tin the nature of things, it is impossible to conceive that the BEST buses will remain only on the premises of the Undertaking. The BEST buses which ply on the road, continue to be the property of the Undertaking and if any employee of the Undertaking damages any of its buses, then the conduct clearly amounts to misconduct which attracts the Standing orders. It is necessary to take a pragmatic approach in such matters and not a technical approach in such matters and not a technical approach which would defeat the cause of justice and would cause untold hardship to the Undertaking which is rendering public service. The contention urged on behalf of respondent No. 1 would give charter to the employees to misbehave in the running buses and avoid the consequence.
16. Mr. Deshmukh then submitted that in any event, the provisions of Section 11-A of the Industrial Disputes Act should be applied and the punishment imposed should be suitably reduced. It is not possible to accept this contention. In the first instance, the provisions of Section 11-A of the Industrial Disputes Act are not applicable in respect of proceedings conducted by the Labour Court under Sections 78 and 79 of the Bombay Industrial Relations Act. Secondly, out of the 8 employees who were charge-sheeted an whoever punished, 4 employees had agreed to forgo the back wages and the undertaking agreed to take them back in service. The Undertaking gave same offer to respondent No. 1 but the offer was flatly refused and it was claimed that not only respondent No. 1 is entitled to reinstatement but also full back wages. Mr. Deshmukh at the outset submitted that respondent No. 1 is the office bearer and he is not prepared to put an end to the litigation and wants a decision from the Court. There is one more aspect of the matter which cannot be over-looked. There is a growing indiscipline amongst the workers controlled by the Union and resort to violences is common. The workers controlled by some of the Unions are under the impression that even if they indulge in violent activities and damage public property, Courts will come to their rescue and permit them to continue their nefarious activities. We are afraid, we cannot permit such impression to go around. This Court always takes liberal view when the interests of the employees are involved but we decline to stretch the beneficiary legislation to such an extent as to make mockery of discipline. In the present case, the workmen had no grievance whatsoever against the employee and merely because the Union led by Datta Samant lost the internal election amongst the workmen, the workmen resorted to violence. The workers even pelted stones at BEST buses which were parked near Electric House and on the public vehicles. In our judgment, respondent No. 1 who was obviously the office bearer and was instigating the workers to resort to violence and was pelting stones, was properly dismissed from employment. In the circumstances, the contention that the punishment should be suitably reduced cannot be entertained. In our judgment, the Labour Court was clearly in error in disturbing the orders passed by the Undertaking and the appellants are entitled to the relief.
17. Accordingly, the appeal is allowed and the order dated November 20, 1991 passed by the learned single Judge in Writ Petition No. 3377 of 1991 as well as the order dated August 19, 1991 passed by the Industrial Court, Bombay, in Appeal No. 161 of 1989, and the order dated October 27, 1989, passed by 11th Labour Court, Bombay in Application No. 561 of 1984 are set aside and the order of dismissal passed by the Undertaking in departmental proceedings is upheld. In the circumstances of the case, there will be no order as to costs.