Bombay High Court
Kirloskar Cummins Ltd. vs Subhash Shripati Darekar on 20 February, 1997
Equivalent citations: (1997)99BOMLR340
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Srikrishna, J.
1. This writ petition under Article 226 of the Constitution of India is directed against an order of the Industrial Court Pune, dated 28th August, 1991 in Revision Application No. 22 of 1991, made in exercise of its powers under Section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the Act').
2. The First Respondent was employed in the service of the Petitioner Company in its factory at Pune as a Helper. On 10th September, 1982, he was on duty and his duty hours were from 8.30 A.M. to 5.30 P.M. with lunch break from 11.15 A.M. to 12.00 noon. At about 11.15 A.M. the Assistant Security Officer, Manohar Prabhakar Gate, was observing whether the scooters and cycles had been properly parked or not. At this time the First Respondent was seen hurriedly leaving the cycle stand where he had parked his motorcycle. When the First Respondent left the cycle stand, he was carrying nothing, but going back inside the Factory. While the First Respondent was leaving the cycle stand, the said Assistant Security Officer, Manohar Prabhakar Gate, suspected the First Respondent's activities, and summoned the Welfare Officer, Shahane, Head Watchman, Malegaonkar, workmen Chaudhari and Bhosale and Kshirsagar, Engineer. Then the First Respondent was called to the cycle stand and informed that the Officers desired to take search of his motorcycle which had two side carriers. The said carriers were opened and found to be empty. The motorcycle had two dickies, one on each side. When the left side dicky was opened, it contained only the Tool Kit. The First Respondent was then directed to open the right side dicky. The First Respondent replied that his motorcycle had no dicky on the right side. When it was found that there was right side dicky, the First Respondent was forced to open it. The First Respondent half opened it and shut it saying that there was nothing in the dicky. When the right side dicky was opened, a bundle was seen stowed away inside. The First Respondent explained it away by saying that the bundle contained the bread which he had brought for his lunch. Not being satisfied with this explanation, the Officers opened the dicky; it was found to contain a copper wire about 14 feet long and weighing 2.5 kgs. The copper wire was of the type which was used in the Company for its manufacturing activity.
3. The First Respondent was served with a charge-sheet dated 11th September, 1982 charging him with misconduct of theft or dishonesty in connection with Employer's business of property within the meaning of Model Standing Order No. 24(d). A detailed enquiry was held which resulted in the First Respondent being found guilty of the charge vide the Enquiry Officer's Report dated 23rd May, 1983. Considering that the charge proved against the First Respondent was serious enough to warrant his dismissal, the Petitioner dismissed the First Respondent from service with effect from 3rd June, 1983.
4. The First Respondent challenged the dismissal order by his Complaint (ULP) No. 49 of 1983 before the Labour Court, Pune. By an order dated 10th November, 1987 the Labour Court dismissed the complaint. The First Respondent carried Revision Application (ULP) No. 56 of 1987 there against to the Industrial Court, Pune. By an order dated 17th October, 1989, the Industrial Court, Pune, allowed the Revision and remanded the complaint for evidence on merits A Writ petition carried against the remand by the Petitioner Employer was summarily rejected with leave to challenge the remand order at a future date, if found necessary.
5. The parties led evidence before the Labour Court. The Petitioner examined Suresh Gangadhar Kshirsagar, Maintenance Engineer, Balkrishna Govind Shahane, Welfare Officer, Yeshwant Digambar Malegaonkar, Watchman, Manohar Prabhakar Gate, Assistant Estate Manager, and also produced a panchanama of recovery of the copper wire which was made in the presence of two workers. The First Respondent examined himself in his support. Upon appreciation of the evidence recorded by him, the learned Judge of the Labour Court accepted the testimorly of the witnesses examined by the Petitioner and disbelieved the evidence of the First Respondent. The Labour Court by its order dated 14th March 1991 held that the charge of theft or dishonesty in connection with the Employer's business or property had been made out and that the dismissal order was justified and proper. The Labour Court rejected the First Respondent's contention that the punishment of dismissal was shockingly disproportionate to the misconduct proved against him. Thus, the Complaint (ULP) No. 196 of 1989 itself came to be dismissed by an order of the Labour Court dated 14th March, 1991.
6. The First Respondent impugned the order of the Labour Court in Revision Application (ULP) No. 22 of 1991 before the Industrial Court, Pune. By the impugned order dated 28th August, 1991, the Industrial Court set aside the order of the Labour Court and dismissed the Complaint (ULP) No. 196 of 1989, directing the Petitioner to reinstate the First Respondent in service on his original post with continuity and full back-wages. Being aggrieved, the Petitioner is before this Court.
7. I have been taken through the evidence on record, the order of the Labour Court dated 14th March, 1991 and the impugned order of the Industrial Court dated 28th August, 1991.1 have had the benefit of hearing the submissions of the learned Advocates appearing for both sides. Even a cursory look at the order of the Industrial Court gives the impression that the Industrial Court was under the erroneous belief that it was exercising appellate powers. That there is no appeal provided against an order of the Labour Court under Section 28 read with Item 1 of Schedule IV of the Act, is the position in law. Though the provisions of Section 44 of the Act conferring superintending powers upon the Industrial Court have been interpreted to mean that the power is one of judicial superintendence, similar to the power of this Court under Article 227 of the Constitution of India, nonetheless, the powers of judicial superintendence exercisable by the Industrial Court under Section 44 of the Act have been held to be limited to ensure that the subordinate Court keeps itself within its jurisdictional limits. The Industrial Court's power do not include the power of interfering with findings of fact, unless there is perversity. [See in this connection Hindustan Prachar Sabha and Ors. v. Dr. (Miss) Rama Sen Gupta and Anr. (1986) C.L.R. 77 : 1986 (52) FLR 312.
8. The Industrial Court has done precisely what it could not have done. It has interfered with the findings of fact under the guise of exercising revisional powers. The only reason given by the Industrial Court for disbelieving the entire gamut of evidence led on behalf of the Petitioner was that the copper wire in question did not bear any markings and since the right side dicky had no lock, it must have been planted in the dicky by someone else. In this view of the matter, the Industrial Court, held that the charge of dishonesty had not been made out. In my view, this reasoning is not only beyond the jurisdiction of the Industrial Court, but is also perverse. That the copper wire was found inside the right side dicky of the motorcycle, is not even disputed by the First Respondent. The conduct of the First Respondent at the time of the search throws a beacon light on his guilty and dishonest mind. First, he denies that the motorcycle had a right side dicky; then, he attempts to open it slightly and immediately shuts it on the ground that it was empty; then, a cloth bundle is seen in the right side dicky and he attempts to explain it away as a piece of bread wrapped in cloth. Even when the cloth bundle is taken out and examined, and found to contain copper wire weighing 2.5 kgs., the First Respondent did not say that he was innocent and that it had been planted inside the dicky by some one else. This conduct of the First Respondent was correctly appreciated by the Labour Court who rightly came to the conclusion that the First Respondent was guilty of the misconduct with which he was charged. The Labour Court was not trying a criminal case where the concept of benefit of doubt could have been made available to the accused. The confusion in the mind of the Industrial Court arose, presumably, because of import of principles of criminal jurisprudence into industrial jurisprudence without appreciating the fundamentally different roles played by the two.
9. In my view, the order of the Labour Court is fully justified on facts and the Industrial Court had no jurisdiction to set aside the factual findings, since it has no, appellate powers. In the guise of exercising revisional powers (judicial superintendence ?), the Industrial Court virtually exercised appellate powers and that too perversely. I, therefore, satisfied that the impugned order of the Industrial Court needs interference in the exercise of constitutional jurisdiction of this Court under Article 226 of the Constitution of India.
10. In the result, the writ petition is allowed. The impugned order of the Industrial Court dated 28th August, 1991 is hereby quashed and set aside.
11. Mr. Rao, learned Advocate for the First Respondent, made a plea that some leniency may be shown in the matter in view of the fact that the First Respondent had sixteen years' service to his credit at the time when he was dismissed. In my view, no such leniency can be shown. However, the only concession I would make is that, if within a period of three weeks from today, the First Respondent tenders his resignation in writing to the Petitioner Company, the Petitioner Company shall accept it effective retrospectively from the dale of his dismissal. Barring this, no other leniency can be shown to the First Respondent.
12. Rule is accordingly made absolute with no order as to costs.