Bombay High Court
Brihan Mumbai Electric Supply And ... vs Nilesh Nana Gholap on 31 July, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:32365
WP.11948.2019.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11948 OF 2019
Shri Nilesh Nana Gholap .. Petitioner
Versus
The BEST Undertaking and Anr. .. Respondents
WITH
WRIT PETITION (STAMP) NO. 25671 OF 2025
Brihan Mumbai Electric Supply and Transport
Undertaking .. Petitioner
Versus
Nilesh Nana Gholap .. Respondents
....................
Mr. M.A. Patil a/w Mr. Jaydeep Shringare, i/by Mr. Pandurang
Parkar, Advocates for Petitioner in Writ Petition No.11948 of 2019
and Respondent No.1 in Writ Petition (Stamp) No.25671 of 2025.
Mr. Vishal Talsania a/w. Mr. Mohammed Oomar Shaikh i/by M.V.
Kini & Co. for Petitioner - BEST in Writ Petition (Stamp) No.25671
of 2025 and for Respondent No.1 - BEST in Writ Petition No.11948
of 2019.
Mr. Sanjay D. Rayrikar, AGP for Respondent No.2.
....................
CORAM : MILIND N. JADHAV, J.
DATE : JULY 31, 2025.
P.C.:
1. This is a group of two cross Writ Petitions. Both Petitions impugn the common judgment dated 06.02.2019 passed by the Industrial Court Mumbai in Appeal (IC) No.52 of 2018 and Appeal (IC) No.05 of 2017. Writ Petition No.11948 of 2019 is filed by the Employee - Bus Conductor and Writ Petition (St.) No.25671 of 2025 is filed by the Employer - Undertaking. By the impugned judgment, the 1 of 12 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:16:16 ::: WP.11948.2019.doc Industrial Court dismissed the Appeal (IC) No.52 of 2018 filed by Employee and partly allowed the Appeal (IC) No.05 of 2017 filed by Employer - Undertaking by confirming the order passed by Labour Court dated 01.02.2017 in Application (BIR-R) No.32 of 2015 filed under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946 (for short 'BIR Act'). By impugned common judgment the learned Industrial Court has confirmed the order dated 01.02.2017 passed by the learned Labour Court in Application (BIR-R) No.32 of 2015 granting relief of reinstatement with continuity in service without backwages and furthermore set aside the new punishment awarded by the Labour Court of reduction in grade of the employee by one step for one year. The impugned common judgment grants liberty to the Employer - Undertaking to award appropriate punishment to the Employee as provided under the Standing Orders against proved misconduct except for dismissal.
2. Briefly stated facts of the case are that the Employee was working as a Bus Conductor with Employer - Undertaking at Oshiwara Bus Depot of Traffic Department. On 28.04.2014 at about 8:45 a.m., Employee was the Conductor working on Bus route No.56/2 Bus No.1608. The bus reached Worli Bus Stop and left when the Bus Inspector on duty called the Employee and asked him to note down the time of the Bus on his trip card since the Bus had proceeded on that route before time. This led to a verbal argument between the two and 2 of 12 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:16:16 ::: WP.11948.2019.doc it is alleged that the Employee hurled abuses at the Bus Inspector, threatened him with dire consequences and also attempted to assault him. It is alleged that when the Bus Driver intervened in the incident, the Employee slapped the Bus Driver, reason being that the bus had reached Worli Bus stop ten minutes before time and Employee was worried about inviting sanction for over-speeding and reaching before time.
2.1. A departmental inquiry was initiated for Employee's assault on the basis of which a report dated 28.04.2014 was submitted by the Bus Inspector. Chargesheet under Standing Orders 20(a), (i) and (r) was issued to the Employee and after conducting inquiry he was dismissed from service w.e.f. 20.10.2014.
2.2. Being aggrieved by dismissal order, Employee preferred two departmental Appeals. However, both Appeals were rejected. The Employee filed Application (BIR-R) No.32 of 2015 under Sections 78 and 79 of the BIR Act before the Labour Court. By order dated 01.02.2017, though Labour Court held the inquiry to be fair and proper however granted relief of reinstatement without backwages and substituted the punishment by granting reduction in grade by one step for one year.
2.3. Being aggrieved by order dated 01.02.2017, the Employer - Undertaking filed Appeal (IC) No.05 of 2017 and due to denial of 3 of 12 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:16:16 ::: WP.11948.2019.doc backwages, Employee filed Appeal (IC) No.52 of 2018 under Section 84 of BIR Act. By common judgment dated 06.02.2019, Industrial Court partly allowed Appeal (IC) No.05 of 2017 filed by the Employer
- Undertaking and dismissed the Employee's Appeal on the ground that relief of reinstatement without backwages was fair and proper. 2.4. Hence, the present Writ Petition.
3. Mr. Patil, learned Advocate appearing for the Employee would submit that both the Subordinate Courts erred in denying backwages despite holding that punishment of dismissal was disproportionate and substituted the same with a much lesser penalty. He would submit that such a finding would imply that misconduct of the Employee was not of a grave nature warranting his dismissal and therefore ought to have been granted backwages alongwith reinstatement.
3.1. He would submit that the incident in question was not a premeditated or deliberate act but a reaction happened on the spur of the moment. He would submit that both Courts below have recorded that the said incident was not so serious as to merit penalty of dismissal hence in that event both Courts ought to have granted backwages to the Employee. He would submit that Employee rendered unblemished service with the Employer - Undertaking and there was no past record of misconduct either.
4 of 12 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:16:16 ::: WP.11948.2019.doc 3.2. He would submit that there was delay in initiating and concluding the departmental inquiry which was unjustified as the incident occurred on 28.04.2014 and dismissal was eventually effected only on 20.10.2014. He would submit that punishment imposed on the Employee was disproportionate to the alleged misconduct and hence he would urge the Court to allow the present Writ Petition No.11948 of 2019.
4. Mr. Shaikh, learned Advocate for Respondent No.1 - Undertaking in Writ Petition No.11948 of 2019 would submit that the Labour Court exceeded its power by interfering with the departmental inquiry decision by substituting the punishment of dismissal with reinstatement. He would submit that the Employee was found guilty of a serious misconduct involving physical assault on his Superior Officer and use of abusive language which falls within Standing Orders 20(a),
(i) and (r).
4.1. He would submit that departmental inquiry was conducted in accordance with the principles of natural justice and its findings are well reasoned and based on prima facie evidence. He would submit that the Employee never challenged the inquiry being illegal or perverse. He would submit that denial of backwages is proper as the Employee neither proved that he was unemployed nor showed any 5 of 12 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:16:16 ::: WP.11948.2019.doc exceptional hardship. However in the present case the Labour Court has travelled beyond its power of scrutinizing the propriety and legality of the dismissal order. He would submit that both the Courts below rather erred in passing the reinstatement order. Hence he would urge the Court to reject the Writ Petition No.11948 of 2019.
5. In so far as Writ Petition (St.) No.25671 of 2025 is concerned, Mr. Talsania appears for the Employer - Undertaking. Since this Petition is filed by the Undertaking separately after the Writ Petition No.11948 of 2019 was heard finally by this Court and kept for passing of orders, I have permitted Mr. Talsania to address the Court. He would submit that the Undertaking is aggrieved with the restraint order granting liberty to the Undertaking to award appropriate punishment provided under the Standing Orders against the proved misconduct, save and except the punishment of dismissal. He would persuade me to consider the fact that misconduct of the Employee involved serious allegations of insubordination and physical aggression which stood proven. He would submit that the domestic inquiry has been held to be fair and proper in compliance with the principles of natural justice and once it is so determined then putting a restraint on the Undertaking by virtue of the impugned judgment to award any punishment other than dismissal ought not have been directed. 5.1. He would submit that the statute does not permit the Labour 6 of 12 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:16:16 ::: WP.11948.2019.doc Court to substitute his own judgment or punishment especially when the inquiry process is found to be fair and its conclusions are well- supported. He would submit that once the inquiry was held to be fair and proper, then the act of restraining the Employer - Undertaking for imposing punishment of dismissal passed by the Industrial Court is in excess of its jurisdiction. He would submit that restraint by the Industrial Court constitutes a direct encroachment on the managerial prerogative for awarding punishment and is therefore unsustainable. He would therefore persuade the Court to negate and set aside the restraint on the Employer - Undertaking to award appropriate punishment as provided under the Standing Order against proved misconduct except for the punishment for dismissal and leave it to the Undertaking to award any punishment as it deems fit.
6. I have heard, Mr. Patil, learned Advocate for the Employee; Mr. Shaikh, learned Advocate for Employer - Undertaking in Writ Petition No.11948 of 2019 and Mr. Talsania, learned Advocate for Petitioner in Writ Petition (St.) No.25671 of 2025 and with their able assistance perused the record of the case. Submissions made by both the learned Advocates at the bar have received due consideration of the Court.
7. At the outset, it is seen that after the incident on 28.04.2014, a chargesheet was issued by Employer - Undertaking. A departmental 7 of 12 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:16:16 ::: WP.11948.2019.doc inquiry was conducted by the Inquiry Officer after giving opportunity of hearing to the Employee. The Inquiry Officer found both charges proved against the Employee after due compliance of the principles of natural justice and taking note of the gravity of the charges which were found proved and after taking into account all other factors, punished him with the penalty of removal from service on 20.10.2014 for the serious misconduct involving physical assault on the Superior Officer and use of abusive language while on duty which falls under Standing Order 20(a), (i), and (r). Prima facie from the record placed before me it is evident that the departmental inquiry conducted was in accordance with the principles of natural justice and it was held to be fair and proper by both the Courts below.
8. It is seen that the Labour Court exercised its discretion under Section 78 of the BIR Act and reduced the penalty of dismissal with reduction in grade by one step for one year while denying backwages. However the Industrial Court in Appeal modified the order of Labour Court by setting aside the reduced punishment and directed reinstatement without any punishment and backwages.
9. I have perused the orders passed by the Labour Court and the Industrial Court. It is pertinent to note that both the Subordinate Courts have passed well-reasoned and balanced orders on the basis of the material placed on record and after following the principles of 8 of 12 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:16:16 ::: WP.11948.2019.doc natural justice. The Industrial Court while considering the nature of misconduct and other circumstances took a rather sympathetic view to reinstate the Employee but has rightly denied backwages. Those findings are based on material evidence and do not suffer from any perversity or error whatsoever.
10. It is seen that the Employee neither challenged the validity of the inquiry procedure nor led any evidence to establish that he remained unemployed during the period of his dismissal. In the absence of such pleading or proof denial of backwages cannot be faulted.
11. In so far as the Employer - Undertaking's Writ Petition is concerned, in view of the above reasons, the same cannot be sustained. The reasons which are returned by the learned Industrial Court prima facie justify passing of the judgment. It is seen from the record that the reason for the quarrel between the Employee and the Bus Inspector was due to the Bus Inspector having called him back to the bus depot and having questioned him as to why the bus proceeded on the said route before time. Thus it is seen that the precursor to the incident was invocation of the argument by the Bus Inspector with the Employee - Conductor in the first instance.
12. That apart, what weighed with the learned Labour Court for substituting the punishment of the dismissal awarded by the Employer 9 of 12 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:16:16 ::: WP.11948.2019.doc
- Undertaking and the learned Industrial Court for setting aside the same was the past record of the Employee which was completely unblemished and clean. The Employer - Undertaking did not place on record any incriminating material about the past record of the Employee being tainted or unclean. Accordingly the learned Industrial Court has returned appropriate and cogent reasons in paragraph Nos.18 to 20 of the impugned judgment dated 06.02.2019 in this regard. Paragraph Nos.18 to 20 are reproduced below for immediate reference:-
"(18) While going through the entire proceeding and order of Ld. Labour Court nowhere found any material to come up a conclusion that, the past record of Conductor employee is bad and unclean. If that was the position, the appellant employer was having liberty to convince the Ld. Labour Court how the past record of Conductor employee is bad and unclean and how the punishment of dismissal is proper against the proved misconduct. If perused dismissal order dated 20.10.2014, therein also did not find any contention about alleged past bad record of Conductor. Further, the Ld. Labour Court in absence of any past record came to the conclusion that, the punishment is disproportionate.
(19) Again if perused the grounds of appeal it appears that, there is some substance in grounds, but, only to the extent of substituting punishment. While answering punishment of dismissal the appellant employer was also required to considered past record. But to that effect, also did not find any efforts. Therefore it can be adduced that, to improve the attitude of Conductor one more opportunity was required to be given. But instead of providing opportunity the appellant employer directly came to the conclusion that, dismissal is a proper punishment.
(20) While concluding findings this Court come to the conclusion that, the Ld. Labour Court while granting relief of reinstatement without back-wages considered all the facts and circumstance available before it. Therefore it cannot be said that, for setting aside order of reinstatement without back-
wages the grounds are justifiable. As far substitution of punishment is concerned, this Court if of view that, this order exceed the jurisdiction of Labour Court. Hence, findings on this point answered in partly affirmative."
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13. Though it is argued that it is well settled that once misconduct is proved, the scope for judicial interference in disciplinary punishment is limited, the present case does not however demonstrate that the findings or conclusions of both the Courts below are arbitrary, unreasonable or in violation of settled legal principles if a holistic view of the entire incident as it transpired is taken. The direction to award punishment to the Employee other than dismissal, in my opinion is a balanced order in view of the dereliction of the Employee in so far as the incident is concerned.
14. I am of the view that punishment of dismissal in the present facts and circumstances discussed hereinabove would be disproportionate to the incident in question. Though the charge of insubordination is against the Employee - Conductor, it was not he who was driving the Bus as it had reached 15 minutes before time on the said route. Hence, I agree with the judgment passed by the learned Industrial Court and it calls for no interference whatsoever.
15. In view of the aforesaid observations and findings which prima facie emanate from the record, the judgment dated 06.02.2019 passed by the learned Industrial Court being a well reasoned and cogent judgment is upheld and confirmed. Resultantly both the Writ Petitions filed by the Employee and the Undertaking fail.
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16. Writ Petition No.11948 of 2019 and Writ Petition (St.) No.25671 of 2025 are both dismissed and disposed.
[ MILIND N. JADHAV, J. ] Ajay 12 of 12 ::: Uploaded on - 31/07/2025 ::: Downloaded on - 31/07/2025 22:16:16 :::