Bombay High Court
S.K. Awasthy vs M.R. Bhope, Presiding Officer, 1St ... on 29 January, 1993
Equivalent citations: [1994(68)FLR841]
JUDGMENT D.R. Dhanuka, J.
1. By this petition filed under Article 226 of the Constitution of India, the petitioner-workman has impugned Award (Part-II) passed by the 1st Respondent on 17th June, 1987 in Reference (IDA) No. 107 of 1983 in so far as it denied the "benefit of reinstatement with full back wags, continuity of service" etc., to the workman. By the impugned Award, the Respondent No. 1 awarded a sum of Rs. 15,300/- as compensation in lieu of reinstatement after computing the same on the footing of three years salary, at the rate of Rs. 425/- per month.
2. This petition narrates the sordid story of alleged molestation of a helpless Nurse in Nurses' Quarter by the petitioner-watchman working in a hospital duly supported by Ward-boys, another nurse and R. M. O. of the hospital and protest made by the petitioner against the action taken by hospital trust against the petitioner. The petitioner was heavily drunk on this occasion, say his own colleagues. The petitioner still wants the relief of reinstatement in service with full back wages and all the benefits. The entire superstructure of the petitioner's case is based on an attempt to pick holes in the evidence lead on behalf of management and point out minor contradictions in testimony of witnesses before Labour Court and plead theory of benefit of doubt as if the proceeding in question were a Criminal trial. It is not even the case of the petitioner that the Trustees of Lotus trust bore any grudge against the petitioner at anytime. If the Trustees would not have taken any action against the petitioner, the trustees would have been blamed by the Society, patients and the action in the manner. The trustees are still facing trouble because of petty technicalities, law's delays and wrongful attitude of the petitioner to cause maximum possible harassment to the honest management. The petition undoubtedly involves some law points. The problem under consideration deserves to be approached from common sense point of view and by applying the test as to what would a reasonable person expect of hospital administration to do in such a situation. With the above preface, the Court must discuss all technical and other points urged on behalf of petitioner and respondent No. 2 strictly according to law.
3. At all material times, the petitioner used to work as a Watchman at "Lotus Eye Hospital" run by a Charitable Trust known as "Lotus Hospital Trust".
4. On 9th September, 1981, the Respondent No. 2 issue a charge-sheet addressed to the petitioner alleging inter alia as under :-
"It is alleged against you as under :-
That on 26th August 1981 at about 9.15 P.M. you entered residential room of Sister Saraswathy i.e., within the hospital premises. You physically pushed her on the bed in her room and tried to molest her. She shouted for help and two other employees of the hospital came for help upon which you ran out of the room and went away. You were also smelling of liquor at that time".
The said charge-sheet was admittedly received by the petitioner within about a week from 9th September 1991. The petitioner did not submit any reply to the charge-sheet. By letter dated 19th September, 1981, the management informed the petitioner that the disciplinary inquiry will be held in pursuance of charge-sheet dated 9th September, 1991. The petitioner signed acknowledgment in respect of the said notice of enquiry. The petitioner did not participate in the enquiry. Some of the witnesses did not appear during course of inquiry. The inquiry remained incomplete. The management decided to issue an order of discharge simpliciter and terminate the services of the petitioner. On 15th April, 1982, the 2nd Respondent Trust served a discharge order on the petitioner stating therein that the Contract of Employment between the 2nd respondent and the petitioner stating was duly terminated as the retention of the petitioner in service of the hospital was not in the interest of discipline and smooth working of the hospital. It was further stated in the said discharge order that the reasons for termination of service of the petitioner had been recorded in writing, but as in the opinion of the management the said reasons were of incriminating nature, the same were kept confidential. By the said order, the respondent No. 2 offered one month's salary in lieu of notice and full terminal benefits to the petitioner. The petitioner declined to accept one month's salary and terminal benefits. The Deputy Commissioner of Labour made a reference of the dispute raised by the petitioner workman in respect of petitioner's claim for reinstatement will back wages and continuity of service under Sections 10(1) and 12(5) of the Industrial Disputes Act, 1947. At one stage, the petitioner had tendered resignation in writing. Later on the petitioner withdrew the resignation and agreed to face the inquiry. The petitioner did not face the inquiry. The petitioner is occupying quarters for more than 10 years without paying penny. By an award dated 25th February, 1985 (Part-I), the Respondent No. 1, Presiding Officer, First Labour Court, Bombay, held that the above referred order dated 15th April, 1982 could not be construed as an order of discharge simpliciter and the said order was in fact a punitive order. By the said Award, the Respondent No. 2 was permitted to lead evidence to justify its action. The Respondent No. 2 examined five witnesses to justify its action. The respondent No. 2 produced and proved large number of documents. The petitioner did not enter the witness-box. The petitioner did not lead any defence evidence. On 17th June 1987, the Labour Court made its Award (Part-II). The Labour Court came to the conclusion that the Respondent No. 2 had failed to prove the charges before the Labour Court and had failed to justify the action. The Labour Court applied the standard of proof in a criminal trial while deciding this issue. The Labour Court came to the conclusion that having regard to the relevant facts and circumstances of the case, the petitioner-workman was not entitled to relief of reinstatement with or without full back wages as claimed. The Labour Court observed in its Award (Part-II) that it would meet the ends of justice if a sum of Rs. 15,300/- was awarded as compensation in lieu of reinstatement. The Labour Court derived support for the view taken by it from the precedent of O. P. Bhandari's case decided by the Hon'ble Supreme Court. This Court admitted the writ petition and directed the 2nd respondent to deposit the said sum of Rs. 15,300/- in Court and permitted the petitioner to withdraw the said amount. The petitioner has withdrawn the said amount. Since the petitioner is in possession of staff quarter and the petitioner was likely to be dispossessed immediately in view of relief of reinstatement having been denied by the Court, the petitioner sought an interim injunction from this Court in terms of prayer (d) of the petition. By order dated 14th March, 1988 passed by this Court, this Court granted interim injunction in term of prayer (d). As a result of the said order of injunction, the petitioner has continued to occupy the staff quarter for all these years unauthorisedly and without paying a penny.
5. The learned Counsel for the petitioner had addressed the Court at considerable length on all points with her thorough preparation. Unfortunately for the petitioner, I have remained unconvinced throughout. I have not been able to discover any legal merit in this petition. The learned Counsel for respondent No. 2 has assisted the Court equally well.
6. In view of the detailed submissions made by the learned Counsel on both sides, it is necessary to state the facts emerging from the record. The relevant facts emerging from the record are briefly summarised as under :-
7. (a) Sometime in the year 1973, the petitioner was employed in Lotus Eye Hospital as a Pounder. Subsequently, the petitioner was assigned the duties of a Watchman. At the material time, the petitioner was working as a Watchman at the said Hospital. Several Nurses and female employees work in the said hospital. The hospital provides staff quarters to its employees. Separate independent quarters are provided to Nurses/Sisters attached to the said Hospital. At the material time, the petitioner was occupying one of the staff quarter at the said Hospital.
7. (b) On 26th August 1981, certain incident took place at the Hospital premises. On 26th August, 1981, one Pandarinath, a Ward-boy made a written complaint to the 2nd respondent, copy whereof is Exhibit 'C' to the petition. On 26th August, 1981 Sister Achamma James also made a written complaint to the Trustees of the said hospital. On 27th August 1981, Sister Saraswathy Sivadas, a Nurse working in the said hospital at the material time and occupying one of the staff quarters forming part of "Nurse Quarters" also made a compliant to the Trustees of the 2nd Respondent. All these complaints were in respect of the same incident. It was alleged by Sister Saraswathy Sivadas (i.e., the Nurse working in the, said hospital at the material time) in her written complaint (Exhibit C-13 before the Labour Court) that on 26th August 1981 at about 9.15 p.m. the door of her room was knocked vigorously by someone; that on opening the door, she found the petitioner at the door. It was alleged that the petitioner pushed her back and entered the room, pushed her on the bed and attempted to molest her. It was alleged that Sister Saraswathy shouted and called for help and assistance from other members of hospital staff. It was further alleged in the said complaint that at that time the petitioner was smelling very badly of liquor and was fully drunk. It was alleged by Sister Saraswathy that in the situation Sister James and Ward-boy Govind came to her room and relieved her from the panic. By the said letter of complaint, Sister Saraswathy requested the Trustees to take action against the petitioner in respect of the said incident. Letter dated 26th August 1981 (Exhibit C-14 before the Labour Court) comprise of complaint made by the Ward-boy Pandarinath Pharade. The said letter corroborates the case of Sister Saraswathy. The said letter was also endorsed by several patients of the hospital. The contents of the said complaint completely incriminate the petitioner. Letter dated 26th August 1981 (Exhibit C-12 before the Labour Court) comprises of written complaint addressed by Sister James to the Trustees. This letter also substantially corroborates the allegations made by Sister Saraswathy. In the said letter also it was alleged that the petitioner used to drink regularly even in the past. But this time, the petitioner had exceeded all limits and had created too much trouble (i.e. Dhamal). In this letter, Sister James reproduced various abuses (not mentionable abuses) which were supposed to have been uttered by the petitioner to Sister James. Sister James complained to Dr. Bharat Desai, R. M. O. in the said hospital on the spot and informed him that the petitioner had come drunk and had gone to the Nurses Quarters. Dr. Bharat Desai has so stated in his testimony before the Labour Court.
7. (c) In this situation, the Respondent No. 2 passed an order of suspension of the petitioner with immediate effect. A copy of the order of suspension is annexed to the petition. On 9th September, 1981, the management issued a charge-sheet to the petitioner. I have already made brief reference to the said charge-sheet in the earlier part of this order. The petitioner did not accept the said charge-sheet when tendered by the management. The said charge-sheet was, therefore, forwarded to the petitioner by registered post with acknowledgment due. It is now admitted by the petitioner that the petitioner did receive the said charge-sheet within about a week's time from 10th September 1981. The learned Counsel for the petitioner has made statement to the Court to this effect. On 19th September, 1981, the 2nd Respondent served a notice on the petitioner to the effect that the necessary enquiry would be held against the petitioner on 19th September 1981, in respect of charges set out in the charge-sheet dated 9th September 1981, already served. The petitioner was called to remain present at the enquiry. The management obtained the signature of the petitioner on the copy of the said letter dated 19th September, 1981 duly served on the petitioner on 21st September, 1981. By the said letter dated 9th September, 1981, the petitioner was called upon to submit his written explanation within three days from service of the charge-sheet. No written explanation was submitted by the petitioner in reply to the said charge-sheet. The petitioner did not co-operate with the management in respect of the enquiry. Soon after the incident, the management had called upon the petitioner to state his version in writing. On 27th August 1981, the petitioner addressed a letter to the Honourable Administrator of the Hospital stating therein very briefly that on 26th August 1981, the petitioner had gone to the quarter of Sister Saraswathy at about 9.15 P.M. for the purpose of delivering a letter. In the said letter of explanation, the petitioner alleged that Sister Saraswathy had told the petitioner to deliver the said letter to Sister Saraswathy in the morning on 27th August, 1981. According to the petitioner, nothing else happened on that day. According to the petition, the petitioner did not enter the room of Sister Saraswathy at all. According to the version of the petitioner as set out in the said letter, later on when the change of words between Sister James and the petitioner. According to the petitioner, certain unpleasant incident took place at that time between the petitioner and Pandarinath. A copy of the said letter was marked as Exhibit C-17 before the Labour Court. A copy of the said letter is tendered by the learned Counsel for the management across the Bar. On or about 7th September 181, the petitioner submitted his letter of resignation to the management stating therein that the petitioner had decided to resign from his job in view of the prevailing atmosphere in the hospital against him. By his letter dated 29th September 1981, the petitioner informed the management that the petitioner was willing to face the enquiry and the above referred letter of resignation be treated as withdrawn. Copy of the above referred Letter of Resignation marked as Exhibit C-18 before the Labour Court and copy of the letter withdrawing the said resignation marked as Exhibit C-19 before the Labour Court are also tendered by the learned Counsel for the management before this Court.
7. (d) After holding incomplete inquiry in the matter, the Respondent No. 2 decided to issue order of discharge after recording reasons for order of discharge after recording reasons for termination of services of the petitioner confidentially. The said reasons were later on disclosed by the management in the proceedings before the Labour Court. It was recorded in the said statement of reasons that the witnesses including the Complainant (i.e., Sister Saraswathy) were afraid of the petitioner and the attempt to hold an enquiry was, therefore, given up. It was stated in the said statement of reasons that in view of the written complaint received by the management from several members of the staff there was a strong suspicion in the mind of the management in respect of "misconduct" of the petitioner as disclosed in the written-complaints. It was recorded in the said statement of reasons that it was considered unsafe to continue such a continuation would be detrimental to the fair reputation of the hospital and its smooth working. The Hospital is a sensitive industry. The entire reputation of the Hospital was at stake. There was panic in the Hospital. One can reasonably visualise the reluctance of Sister Saraswathy to depose again and again regarding charge of attempt of molestation. Sister Saraswathy left the job. Perhaps she left India. The learned Counsel for the petitioner herself thought it proper to proceed with the hearing of this petition on this footing.
7. (e) The petitioner filed a statement of claim before the Labour Court on 21st June, 1983. In the said statement of claim not a word is said in respect of petitioner's version regarding the said incident. In para 5 of the said statement of claim it was alleged as under :
"Not even a charge-sheet was given".
This statement is admittedly false. In the said statement of claim it was further averred that the authorities had enacted a drama and there was neither a complaint nor a complaint to give evidence before the Inquiry Officer. In para 9 of the statement of claim it was alleged as under :-
"There is another possibility to the entire episode. It is learnt that the Sister was married but was not living with her husband in the Quarters. The workmen concerned was a handsome youth and there may be some scheming on the part of woman. She might have been disappointed in her attempts and by way of revenge on the workman might have spread this story".
To my mind, this averment is totally irresponsible and imaginary. No litigant is at liberty to black-mail others or misuse the judicial forum in the manner done. I, therefore, asked searching questions to the learned Counsel for the petitioner on this version of the petitioner. The learned Counsel for the petitioner has fairly conceded that such an averment ought not to have been made in the statement of claim and it is not possible to support such an averment. The learned Counsel for the petitioner stated that it was unfortunate that such an averment was incorporated in the statement of claim drafted by someone from the Union without any legal assistance. In the written statement filed on behalf of the management it was inter alia contended that the management had acted bona fide in terminating the services of the petitioner. It was contended that there were many lady employees who were required to stay within the hospital premises and who were required to move during the night time in course of their duties. It was alleged in the said written statement that the management had lost confidence in the petitioner and there was no alternative left for the Hospital authorities other than to terminate the services of the petitioner. In the said written statement details were disclosed in respect of the incomplete enquiry held by the management and the reasons justifying passing of the above referred discharge order terminating the services of the petitioner. It was averred in the said written statement that some of the witnesses and particularly the lady witness as concerned were facing embarrassing situation and apprehended harassment during the course of cross-examination if they were to give evidence during the course of inquiry.
8. There is no challenge to Award (Part-I) dated 25th February 1985. This writ petition shall have to be decided on the footing that the action taken by the Respondent No. 2 was punitive in nature. The management was given an opportunity to lead evidence to justify its action. The petitioner was at liberty to lead rebuttal evidence.
9. During the course of the enquiry before the Court, the Respondent No. 2 produced large number of documents including Exhibits Nos. C-12, C-13, C-14, C-17, C-18 and C-19. The Respondent No. 2 examined one Pandarinath Savaji Pharade as their first witness. The said witness Pandarinath Savaji Pharade was working as a Ward-boy in the Hospital since the year 1979. The said Pandarinath admitted during the course of his examination-in-chief that Exhibit C-14 i.e., letter of complaint dated 26th August, 1981, copy whereof is annexed to this petition, was signed by him and that the same was written by another Ward-boy by name Shri Anjal on his instructions.
Shri Pandarinath admitted in his examination-in-chief that the other signatures on the document Exhibit C-14 were of the patients who were present at that time. The said document appears to be a genuine document. During the course of his cross-examination, Shri Pandarinath stated that there was a fight between him and the petitioner on 26th August, 1981. It is natural. Other members of the staff must have protested against misbehaviour of the petitioner. During the course of his cross-examination, Shri Pandarinath further stated as under :-
"I was not knowing as to what was written in it (meaning thereby in the Exhibit C-14). I did not know about the incident personally".
In my opinion, this sort of testimony in cross-examination does not detract from the genuineness of corroborative testimony of the petitioner by addressing and signing letter Exhibit C-14 on the spot.
10. The management then examined Sister James as their second witness in support of plea of justification raised by the management. Sister James confirmed that Exhibit C-12 being the written complaint signed by her. Sister Saraswathy had left the service and was not available. Sister James identified the signature of Sister Saraswathy Sivadas on the Complaint Exhibit C-13. Sister James stated on oath that Sister Saraswathy had left the employment. By the evidence of Sister James, document Exhibit C-12 and the document Exh. C-13 were duly proved. By the evidence of witness Pandarinath Pharade, document Exhibit C-14 was duly proved. During the course of the cross-examination, Sister James turned hostile and started giving evidence contrary to her evidence in examination-in-chief and contents of the document Exhibit C-12. This part of testimony of Sister James is unfortunate and unconvincing. During the course of her cross-examination, Sister James alleged that Exhibit C-12 was written by her at the instance of the R. M. O., meaning thereby Dr. Desai. Sister James alleged in her cross-examination, that she had been forced to give a writing to this effect by the R. M. O. Dr. Desai. This part of the allegation made by Sister James is held to be false by the Labour Court in view of clear and convincing testimony of Dr. Desai, the R. M. O., to the contrary. Sister James alleged in her cross-examination that she had not seen Awasthy (i.e. the petitioner) drunk at any time in her service. Sister James was allowed to be cross-examined on behalf of the management as she had become a hostile witness. During the course of her cross-examination on behalf of the management, Sister James reiterated that she was compelled to writ Exhibit C-12 by Dr. Desai. Dr. Desai, who was no longer in the service of Lotus Eye Hospital, gave his evidence before the Labour Court stating that Sister James to the Office Superintendent. Dr. Desai denied that he had dictated the contents of the complaint Exhibit C-12 to Sister James or asked her to write it down. The management examined two witnesses to prove the facts leading to holding of incomplete inquiry and action of discharge taken against the petitioner. I do not think it necessary to discuss the evidence of these two witnesses, as these two witnesses were rather formal witnesses on behalf of the management and were perhaps examined with a view to identify signatures on various documents and produce the record of the departmental enquiry to whatever extent it was held. I do not propose to refer to the evidence recorded during the course of the said enquiry in view of the judgment of the Hon'ble Division Bench of our High Court to the effect that once the evidence was led before the Labour Court, the matter should be decided with reference to the evidence before the Court only and it was not permissible to refer to the evidence led during the course of domestic enquiry.
11. During the course of her arguments, the learned Counsel for the petitioner took the Court through the entire Award, being Award (Part-II) and rightly so. As I was going through the said Award, I felt tentatively that the finding of the Labour Court to the effect that the management had failed to prove the charge before the Labour Court appeared to be perverse and different parts of reasoning contained in the said Award in support thereof were mutually conflicting. I felt rather uneasy. According to my tentative opinion, the management of the hospital had acted bona fide and it was perhaps a case of disgraceful conduct which no hospital management could tolerate. I invited the learned Counsel on both sides to debate all aspects of the matter fully as larger issues of public interest were involved in the matter. I then asked a question to myself as to whether it was permissible for the Writ Court to examine the validity of the said finding recorded by the Labour Court, of course, within the parameters of jurisdiction of the Writ Court in view of there being no specific challenge to the finding of misconduct having not been proved by the management in the affidavit in reply, or whether it was not at all permissible for the Writ Court so to do. Perhaps the learned Counsel for Respondent No. 2 was of the view that no such plea need be taken in an affidavit-in-reply. In this view of the matter, I requested the learned Counsel on both sides to address the Court fully on all aspects including the procedural and jurisdictional aspects in view of the uneasy feeling of the Court. The Respondent No. 2 has not filed any writ petition challenging this part of the finding contained in the Award i.e., finding to the effect that that the management had failed to prove the allegations against the petitioner. The Respondent No. 2 has not contended in the affidavit-in-reply that the above-referred finding is perverse of that the said finding suffers from error of law apparent on the face of record. In this view of the matter, it became necessary to go into the question as to whether the Respondent No. 2 ought to be permitted to assail this finding at the hearing of this writ petition on the basis of the annexures to the petition itself without relying on any additional facts. The learned Counsel for the petitioner submitted that for all practical purposes the Respondent No. 2 had accepted the finding that the management had failed to prove the charge and justify the action and only question before the Court was merely as to whether the Labour Court was justified in denying relief of reinstatement with back wages and restricting the relief awarded to the petitioner to award of Rs. 15,300/- as compensation in lieu of reinstatement. The learned Counsel for Respondent No. 2 made an oral application to the Court for permitting her to assail the above-referred finding within the parameters of jurisdiction of Writ Court on the basis of annexures to very writ petition without relying on any additional facts. The learned Counsel for Respondent No. 2 invited the attention of the Court to the provisions contained in Order 41, Rule 22 and Order 41, Rule 33 of the Code of Civil Procedure as and by way of analogy. Order 41, Rule 33, Code of Civil Procedure empowers the appellate Court to pass any order it deems fit even though the appeal is filed against part of the decree and no cross appeal or cross objections are filed by the respondents as more particularly set out therein. In my opinion, Order 41, Rule 33 or Order 41, Rule 22 of the Code of Civil Procedure cannot be applied to a writ petition by analogy. A writ petition is not an appeal. The jurisdiction and powers of Writ Court shall have to be ascertained independently of Order 41, Rule 22 or Order 41, Rule 33 of the Code of Civil Procedure. In one sense, powers of writ Court are wider and in another sense narrower.
12. In its judgment in the case of Dwarkanath v. Income-Tax Officer, , the Hon'ble Supreme Court observed that the powers of High Court under Article 226 of the Constitution were very wide and it could reach injustice wherever found. In Averi India Ltd. v. Second Industrial Tribunal, West Bengal & Ors. , the Hon'ble Supreme Court observed that the respondent order on basis of a plea not taken before the Tribunal and not taken in the return i.e., affidavit in reply filed before the High Court. I further as I have decided that it is not possible referred finding contained in the Award in absence of a plea in the affidavit-in-reply.
13. At one stage, I was inclined to permit Respondent No. 2 to impugn the said finding and set aside the same if it was found to suffer from error apparent or misdirection in law or if it was found to be perverse and manifestly unjust. In view of the prevailing practice on the Original Side to construe pleadings strictly, would have to be kept undisturbed and intact affidavit-in-reply due to misconception of legal position or otherwise. The said finding remains on record not because it is correct but because of the same having not been specifically impugned in the affidavit-in-reply. However, in view of the full debate at the Bar and in all fairness to the parties, I propose to record an alternate finding on merits of the issue as to whether the said finding suffers from error apparent, misdirection in law and is manifestly unjust or perverse. To my mind, the learned Labour Court had clearly misdirected himself in law and had recorded a totally perverse finding on this issue. My reasons for expressing this opinion are as under :-
(a) The respondent No. 1 observed in the impugned Award (Part II) as under :-
"the contents of the complaints have not been established as per standard of the evidence in the criminal case."
It is well settled that the Indian Evidence Act is not applicable to the evidence recorded before the Labour Court or Industrial Tribunal and even hearsay evidence is admissible. It is also well settled that the standards of a criminal trial cannot be applied in a departmental enquiry or in an enquiry before the Labour Court or Industrial Court even if the charge is of criminal nature. The standard of proof required to be applied is of preponderance of probabilities. The contents of complaints Exhibits C-12, C-13 and C-14 were clearly proved even if the said documents were required to be formally proved. No formal proof is required to be adduced in respect of documents produced before the Labour Court or Industrial Court as in a civil or criminal Court. Probative value of the document may differ depending upon totality of evidence led. Thus documentary evidence led at the enquiry cannot be ignored. Even hearsay evidence led before the Labour Court or Industrial Court cannot be ignored. In this case, the Labour Court misdirected himself in law by ignoring documents Exhibits C-12 to C-14 and by applying standard of evidence required in a criminal case.
(b) In para 19 of the impugned Award, the learned Judge of the Labour Court observed as under :-
"There is no doubt about the fact that the charge-sheet was not served on the workman".
In para 20 of the said Award, the learned Judge observed that the charge-sheet was duly served on the petitioner. In para 20 of the said Award, the learned Judge reproduced extracts from the said charge-sheet. Thus the statements made in para 19 and para 20 of the said Award are mutually conflicting. This contradiction shows non-application of mind or confusion in respect of this part of the Award.
(c) In para 23 of the said Award, it is mentioned as under :
"As regards Mr. Govind, no explanation has been given by the Opponent".
(Meaning thereby that no explanation for not examining Mr. Govind as a witness had been given by the management). In the very next sentence, the learned Judge observed as under :-
"It is somewhere stated that Mr. Govind has also left the services of the Opponent".
Both these passages forming part of the same Award are mutually conflicting and indicate confusion of thought.
The learned Labour Court totally failed to consider the effect of the petitioner having not entered the witness-box. The petitioner did not attempt to prove defence version set out in his letter dated 27th August, 1981. The petitioner had admittedly gone to the apartment of Sister Saraswathy in the night time. According to the petitioner, he had gone there to deliver a letter to her. This story is ex facie unconvincing. The petitioner was duty bound to enter the witness box and examine Hangla Prasad. Perhaps the petitioner had no courage to do so. The Labour Court failed to do so and misdirected himself in law on this aspect. Initial onus is always on the management to justify its action. Once some evidence is led on behalf of the management, it is necessary for the employee to lead rebuttal evidence and make the defence version at least probable.
(e) The learned Labour Court totally ignored the vital documents like Exhibits C-12 to C-14 which were duly proved before him.
14. Mrs. Meena Doshi, the Learned Counsel for Respondent No. 2 has referred to three important Judgments on this aspect which are of considerable significance for deciding this petition. The learned Counsel for Respondent No. 2 cited Judgment of the Hon'ble Supreme Court in the case of State of Haryana v. Rattan Singh, (1982 I LLJ 46), wherein law on the subject was authoritatively and clearly laid down. In this case, the services of the Bus Conductor employed by Haryana Roadways were terminated by the management relying on the evidence of Inspector of Flying Squad. It was alleged by the employer that the Bus Conductor had allowed the passengers to travel without tickets although moneys were collected from the passengers for the fare. The passengers were not examined as witnesses during the course of domestic enquiry. The services of the Bus Conductor were terminated. A Civil Suit was filed by the Bus Conductor challenging the impugned order of termination of service. The suit was decreed. The first appeal and the second appeal filed by the management were dismissed. The Hon'ble Supreme Court was seized of the appeal on special leave being granted. Krishna Iyer, J., speaking for the Apex Court laid down the applicable principles in this case with complete clarity. The principles laid down by the Apex Court are clearly applicable to this case. In this case, V. R. Krishna Iyer, J. speaking for the Apex Court observed that in a domestic inquiry, the strict and sophisticated rules of evidence under the Indian Evidence Act are not applicable. During the course of his Judgment, the learned Judge further observed as under :-
"All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has a reasonable nexus and credibility".
In this case, the Court observed that the domestic Tribunal and the Courts below had misdirected themselves in law in insisting upon the fact that the passengers ought to have been examined as witnesses before the Tribunal. All that the Court is required to look for is as to whether there was some relevant evidence to justify the finding. Applying this test, the Court held that the evidence of Inspectors, Flying Squad was sufficient. It was held that the workman was entitled merely to monetary benefits flowing from a simple termination.
15. In J. D. Jain v. The Management of State Bank of India (1982 I LLJ 54), the Hon'ble Supreme Court in terms held that in departmental proceedings the guilt need not be established beyond reasonable doubt and hearsay evidence was clearly admissible in domestic inquiries. The Bank had taken action of terminating the services of one of its employees on the ground that the said employee concerned had defrauded a customer of the Bank. The customer of the Bank being the victim of the fraud, was not examined before the Inquiry Officer. The Central Government Industrial Tribunal directed reinstatement of the appellant with full back having not been examined. The High Court of Delhi set aside order of the Tribunal on the ground that the Tribunal had committed an error of law apparent on face of the record and the finding of fact. The Hon'ble Supreme Court followed the propositions of law formulated by Krishnan Iyer, J. in the case of State of Haryana v. Rattan Singh and dismissed the Appeal.
17. The Labour Courts and Industrial Courts must approach the problem in light of these principles enunciated by the Hon'ble Supreme Court while examining the order passed in domestic inquiry or while holding the inquiry themselves by permitting the management to lead evidence before the Tribunal. In Union of India v. T. R. Varma, , the Hon'ble Supreme Court held that the Evidence Act had no application to inquiries conducted by Tribunals even though they may be judicial in character.
18. In the case of Srinarayan Meva Pal Gupta v. Padamjee Pulp Paper Mills Ltd. (1991 (62) FLR 606), Pense, J. speaking for the Division Bench of this Court observed as under :-
"It was also contended that letter (exhibit-21) signed by number of employees including workers hailing from Uttar Pradesh should not have been relied upon because the signatories were not examined before Labour Court. We are unable to find any merit in the submission for more than one reason........"
19. In Hira Nath Mishra & Ors. v. The Principal, Rajendra Medical College, Ranchi & Anr. , the Apex Court was concerned with the issue of observance of natural justice. The Inquiry Committee appointed by the Principal of a Medical College was appointed to enquire into the complaint of the inmates of the girls' hostel against certain male students of the College about their indecent behaviour with them in the College compound. The Apex Court held that in this situation the rules of natural justice did not require that the statements of girl students should be recorded in presence of male students concerned or that the latter should be furnished with the report of the Inquiry Committee.
20. In this case, the Labour Court has ignored the relevant principles and the relevant evidence and dealt with the issue as if the Court was a Criminal Court trying the petitioner on charge of a criminal offence and technical rules of Evidence Act were attracted. In Management of Balipara Tea Estate v. Its Workmen , the Hon'ble Supreme Court observed that the Industrial Tribunal had misdirected itself in law by approaching the problem, from the angle as if it was holding a trial for a criminal offence. In this case, the Labour Court has virtually ignored evidence of written complaint admittedly signed by Complainant Saraswathy merely because Sister Saraswathy was not available for giving evidence before the Labour Court. If a witness turn hostile, his or her entire evidence need not be ignored. It is open to the Court to rely on first testimony or former statement of a witness if it considers safe to do. This principle has also been ignored by the Labour Court. The learned Counsel for the petitioner has cautioned the Court by stating that if letters written to the management by other employees were to be admitted in evidence without writers thereof being called, the unscrupulous management might manipulate such letters and cause prejudice to charge-sheeted workman. The apprehension expressed by learned Counsel is unjustified and irrelevant. Such evidence is admissible and cannot be ignored. Appreciation of evidence is left to prudent mind and wisdom of the Inquiry Officer in the first instance and Courts in last instance.
21. In the case before us, the Labour Court has dealt with the evidence led before it by applying standards of a Criminal trial and by proceeding on the footing as if he was holding a criminal trial where the charge must be proved beyond reasonable doubt and the evidence led must strictly conform to the technical norms prescribed by Indian Evidence Act. The Labour Court recorded its finding on the first issue on the footing that the written complaints or written documents (Exhibits C-12 to C-14) could not be looked into as the contents thereof were not proved according to standards of criminal trial. If hearsay evidence is admissible in such enquiries as laid down by Krishna Iyer, J. in State of Haryana's case, written complaint of Saraswathi could not be just ignored in the Court merely because she could not be examined as a witness before the Court. If the Court would have treated all these complaints as admissible evidence and taken into consideration while appreciating totality of evidence led before it, it was a different matter.
22. In a criminal trial, no adverse inference can be drawn against an accused if the accused does not enter the witness-box. It is the cardinal principle of criminal jurisprudence that ordinarily the accused is not bound to open his mouth and the presumption of innocence would operate throughout. No such principle is applicable in a Civil proceeding or in domestic inquiry or in a proceeding before a Labour Court, Industrial Court or Industrial Tribunal. If the management discharges initial onus which lies on it to prove the allegations and the workman fails to discharge the shifted onus the case of the workman must suffer. In this case, the management did discharge its initial onus to prove the allegations and the petitioner workman failed to rebutt the evidence led on behalf of the management.
23. In view of the above discussion, I record my finding as a Writ Court that the finding of the Labour Court to the effect that the Respondent No. 2 failed to prove the allegation or justify its action-suffers from misdirection in law and is totally perverse. I am not setting aside the said finding due to procedural and technical error on the part of Respondent No. 2 in not impugning the said finding in its return i.e., in the affidavit-in-reply presumably on the footing that the parties to the proceedings could always urge all contentions whether pleaded or not.
24. I shall now proceed to discuss the question which directly arises in this petition. The learned Counsel for the petitioner has submitted that reinstatement with back wages is a normal rule once it is found that the termination of service of the workman is invalid on the ground of management having failed to prove the allegations against the workman and justify its action. The learned Counsel for the petitioner has submitted that the instant case was not covered by any of the exceptions to the general rule judicially recognised in decided cases by the Apex Court. The learned Counsel for the petitioner has invited the attention of the Court to large number of authorities on the subject. There can be no dispute about the propositions of law formulated by the learned Counsel for the petitioner. The only question which arises for consideration of the Court is as to whether the Labour Court committed any error apparent in respect of the application of relevant principles when it refused to grant relief of reinstatement or full back wages to the petitioner and restricted the relief to three years' salary i.e. Rs. 15,300/- only.
25. In Assam Oil Company Ltd. v. Its Workmen, , the Hon'ble Supreme Court set aside the order of reinstatement and directed payment of compensation of Rs. 12,500/- in lieu thereof. In para 12 of its Judgment, the Hon'ble Supreme Court observed that the normal rule was that in cases of wrongful dismissal, the dismissed employee was entitled to reinstatement but there could be cases where it would not be expedient to follow the normal rule and to direct reinstatement. Gajendragadkar, J., speaking for the Court further observed as under :-
"It is no doubt true that the affect of the employer's plea that he has lost confidence in the dismissed employee cannot ordinarily be exaggerated; but in special circumstances of the case we are inclined to hold that it would not be fair either to the employer or to the employee to direct reinstatement.
Justifiable loss of confidence is a well recognised exception to the general rule of reinstatement. In Hindustan Steel Ltd. v. A. K. Roy & Ors. , a similar view was taken by the Apex Court. The services of an employee were terminated by the management on basis of an undisclosed police report. The order of discharge was held to be illegal as it was punitive in nature. Both the Tribunal and the High Court had directed reinstatement of the employee. In para 10 of his Judgment, Shelat J. speaking for the Bench laid down that in such cases reinstatement was neither desirable nor expedient. The Hon'ble Supreme Court set aside the order of reinstatement and awarded compensation in lieu thereof equivalent to two years, salary. In para 10 of the said Judgment, the Hon'ble Supreme Court referred to large number of cases decided by it earlier wherein it was held that loss of confidence was one of the well recognised grounds to deny reinstatement. Mere putting forward of ground of loss of confidence is not enough to deny reinstatement. There must be some basis or tangible material or circumstantial evidence to indicate that the plea of employer to deny reinstatement to the workman was bona fide. In this case there was enough material on record to indicate that the management has justifiably lost confidence in the petitioner. The petitioner cannot be forced to comply a Watchman of the hospital in the circumstances of the case. The Tribunal is required to decide each case on its own merits and exercise its discretion after considering the question as to whether the circumstances of the case require that an exception should be made to the normal rule of reinstatement and compensation would meet the ends of justice. The Hon'ble Supreme Court took similar view in Ruby General Insurance Co. Ltd. v. Chopra P. P. (1970 I LLJ 63) and in the case of L. Michael v. M/s. Johnson Pumps India Ltd. (1975 I LLJ 262) and in Chandu Lal v. The Management of M/s. Pan American World Airways Inc. (1985 FLR 142). I have carefully gone through the Judgment of the Hon'ble Supreme Court in case of O. P. Bhandari v. Indian Tourism Development Corporation Ltd. (1987 LIC 25) where compensation equivalent to 3.33 years salary was awarded in lieu of reinstatement. In the case before us, the while denying reinstatement and awarding compensation equivalent to 3 years salary. No case is made out for judicial intervention of Writ Court. I uphold the award of Labour Court in so far as it denied the relief of reinstatement to the petitioner. This part of the Award is fair and reasonable. Circumstances of the case clearly bring the case within the exception to the normal rule.
26. Relying on the Judgment of the Hon'ble Supreme Court in the case of O. P. Bhandari v. Indian Tourism Development Corporation Ltd. cited, supra, the Labour Court came to the conclusion that having regard to the facts and circumstances of the case, award of three years salary as compensation in lieu of reinstatement would meet the ends of justice, the learned Counsel for the petitioner submits that in any event the Labour Court ought to have awarded full back wages and further compensation in lieu of reinstatement. It is not no hard and fast rule. The Law Reports are full of cases where the Courts have awarded the relief of lump sum compensation. In O. P. Bhandari's case, the compensation awarded was equivalent to 3.33 years service. In this case, the petitioner was awarded compensation equivalent to three years full salary at the rate of last drawn salary. In my humble opinion, the Award leans in favour of the petitioner.
27. Taking an overall view of the matter, I have reached the conclusion that there is no justice in the case of the petitioner. The amount of compensation already awarded to the petitioner is more than adequate. The conduct of the petitioner in making false statement regarding charge-sheet having not been served and putting forward an imaginary story in para 9 of the statement of claim aggravates the situation. The conduct of the petitioner is blameworthy.
28. Taking an overall view of the matter, I hold that no case of interference with the Award of the Labour Court is made out by the petitioner.
29. In the result, the petition fails and is dismissed with no order as to costs. Rule is discharged.
30. The petitioner was permitted to occupy the service quarters during the course of his employment. By an interim injunction granted by this Court in terms of prayer (d) of the petition the possession of the petitioner in respect of the said premises was protected. Relief of reinstatement is denied. The petitioner is found to be unfounded. The petitioner is a trespasser in respect of the said quarter. The petitioner is, therefore, bound to vacate the said service quarters forthwith. It would be a traversity of justice if Respondent No. 2 is now required to adopt separate eviction proceedings against the petitioner and allow return of the possession of the staff quarters delayed any more. The Respondent No. 2 is at liberty to furnish particulars of the staff quarter in occupation of the petitioner to the Prothonotary and Senior Master.
31. The petitioner is, therefore, ordered and directed to vacate the staff quarter in his possession and hand over the vacant possession thereof to Respondent No. 2 on or before 28th February 1993. In default, the Respondent No. 2 would be at liberty to execute this order and also adopt contempt proceedings. In case the petitioner files a written undertaking before this Court to the effect that the petitioner will hand over vacant possession of the said premises, unless stay is obtained from the Appellate Court in the meanwhile, the petitioner would be granted further time to vacate the said premises upto 31st May, 1993 as a matter of indulgence though the petitioner deserves no sympathy as his family members are also using the said premises. If the petitioner desires to avail of this option, the petitioner shall have to mention the matter to the Court and file the necessary undertaking in usual format.
32. Mrs. Doshi, the learned Counsel for Respondent No. 2 reserves right to claim compensation for wrongful user of the said quarters at a reasonable rate for the period commencing from 1st March, 1993. The Trustees of Respondent No. 2 are gracious enough not to claim any compensation for use of the quarter for the period prior thereto.
33. No order as to costs. Certified copy to be issued expeditiously.