Bombay High Court
Shapoorji Pallonji & Co. Pvt. Ltd. vs D.H. Deshmukh And Anr. on 30 January, 1999
Equivalent citations: [1999(82)FLR112], (1999)IIILLJ1573BOM
JUDGMENT N.J. Pandya, J.
1. Petitioners are the employers of the Respondent No. 2 who came to be dismissed in July, 1984. Till the year 1986, he was facing criminal trial arising out of the alleged act of theft in the premises of the petitioners. The Respondent No. 2 was employed as watchman. Allegations were that he was caught red handed having stolen iron bars being used by the Petitioners-Company in its activities of building contractor.
2. He came to be acquitted in the criminal trial in 1986 and by January, 1987 got the conciliation proceedings initiated resulting into a Reference where the learned Presiding Officer of the VIth Labour Court, Bombay decided Reference (IDA) 698/87 holding that the enquiry has not been held properly. Hence, it be struck down. This would mean that the Petitioner can lead evidence before the trial Court.
3. This finding as to the enquiry not fair and legal is stated to be challenged by way of this petition. Admittedly, the enquiry was very short because according to the petitioner, guilt was admitted by Respondent No. 2 on July 5, 1984. The enquiry was initiated by issuing the charge sheet on April 30, 1984. The Enquiry Officer felt that as there was admission, no further evidence was necessary and he recorded the finding of guilt resulting into the dismissal of the Respondent No. 2.
4. About the late raising of claim in conciliation and therefore there being delay in reference, also need not detain though urged, because criminal case was pending in which the Respondent No. 2 came to be acquitted only in the year 1986. Within four months the trial was moved.
5. Coming back to the aforesaid position with regard to the admission, if one turn to the statement of claim, page 32 annexure F, it is categorically stated that after the charge sheet was given on April 30, 1984, he was called for enquiry on July 5, 1984. According to the Respondent No. 2, the Enquiry Officer asked him to sign on a typed paper under the text of giving the transfer order for working at another site. After the signing was over he was asked to go home and on July 7, 1984 he was served with the termination order.
6. The workman was examined before the Trial Court. The translated version is at Exh. 1, page 42, wherein the Examination-in-Chief clearly states that he was asked to sign the letter. He claims that he is illiterate and he could not read or understand what was written. He repeats that he was made to sign after being told that they were necessary for his transfer. The translation version of this admission is at page 25. This being the translated version, it will be taken as submitted on behalf of the petitioner that the original was in Hindi and it bears the signature of the petitioner also in Hindi. The Enquiry Officer's report, Exh.C also record the fact that though the Enquiry record was kept in English but the proceedings were conducted in Hindi after ascertaining from the Respondent No. 2 as to which language he would understand.
7. Assuming for the time being that Enquiry in fact was conducted in Hindi, to the knowledge of the respondent No. 2 and in his presence, his allegation about the said confession not being genuine still remains. It was urged on behalf of the petitioner that the finding with regard to the illiteracy of the respondent No. 2 should be ignored because it was not set out in the statement of claim and therefore it should be held as afterthought. For this, remarks found in the Supreme Court judgment at page 85 in the case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and Anr. reported in (1979-II-LLJ-194) (SC) was urged. Going by that decision, if for the time being the literacy aspect is set aside, the Examination-In-Chief of the workman as to his having been made to sign on the pretext being a transfer order still remains and the Enquiry Officer who has been examined and the version set out by way of copy at page 44 if referred to does not contain even a whisper in this regard.
8. No doubt in the cross examination, paragraph 3, at page 44 there is reference to the reply to the charge not being recorded in Hindi and that he did not ask for written explanation of the workman as to the charges, nothing further is to be found in the cross examination on the aforesaid aspect. This is hardly surprising when the Respondent No. 2 had come out with the aforesaid stand in his statement of claim and had sought to prove it by his own statement on oath which was for the petitioner-company to disprove this allegation. How to disprove is left to them. They have chosen to examine only one witness i.e. Radhakrishna Pandurang, witness No. 1 of the petitioner-company, page 44 where no attempt whatsoever has been made to refute this claim.
9. On record therefore the allegation as made by the Respondent No. 2 remained virtually unchallenged. It is this tete what is admitted did not refute.
10. However, if the admission itself is in controversy and is categorically resiled away from on the basis that he never made conscious admission, let alone it being voluntary or otherwise, the very credibility of that admission would be under challenge and unless met with, it would lose its evidentiary value. Decision in the case of the Central Bank of India v. Karunamoy Banerjee reported in (1967-II-LLJ-739) (SC) Supreme Court Labour Judgment page 89 would be of no avail to the petitioner. On the same line is the case of the Rajasthan High Court reported in 1980 L.I.C. page 683 in the case of The Associated Cement Co. Ltd. v. Abdul Gaffar and Anr. wherein it was held that if there is conflict between the version of the workman and that of Enquiry Officer, rule of prudence required that version of the Enquiry Officer be accepted. This would be the position provided there is version given by the Enquiry Officer. In absence of the same, obviously the decision cannot help the petitioner.
11. The net result, therefore is that the petition fails. No reason is made out for this Court to interfere with the same. It is rejected. Rule discharged.
12. Issuance of certified copy is expedited.