Bombay High Court
The Cosmos India Rubber Pvt. Ltd. vs Mumbai Mazdoor Sabha And Ors. on 20 January, 1989
Equivalent citations: [1989(59)FLR33], (1993)IIILLJ18BOM
JUDGMENT Mookerjee, C.J.
1. The learned single Judge who initially heard this Writ Petition was of the opinion that it would be more advantageous if the matter be heard by a Bench of two or more Judges. In his order the learned single Judge has referred to two reported decisions of this Court regarding the scope of an inquiry under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
2. One Prabhakar Bhau Patil was the workman of the Petitioner Company, On 20th September 1976 the company had served a charge-sheet upon him. On 4th February 1977 another set of charges were served upon the said Prabhakar Bhau Patil. The Petitioners company caused a departmental inquiry to be held in respect of the said charges. The workman who was represented by a defence representative had participated in the inquiry. On 21st April, 1977 the said domestic inquiry was held ex-parte against the workman and was concluded. The Petitioner company by letter dated 30th April 1977 purported to discharge the workman.
3. The Respondent Mumbai Mazdoor Sabha on behalf of the said discharged workman had filed a Complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, before the 1st Labour Court at Bombay. The Mumbai Mazdoor Sabha, Respondent No. 1, had averred in its Complaint inter alia that the company was guilty of unfair labour practices in the matter inter alia on the ground that the inquiry which was conducted and concluded ex-parte on 21st April, 1977 was in violation of principles of natural justice and the workman has been discharged by way of victimisation. The Mazdoor Sabha, the Respondent No. 1 accordingly prayed for setting aside of dismissal and for reinstatement of the workman.
4. In its written statement the Petitioner company had denied the said allegation regarding unfair labour practices. The company contended that the workman was guilty of serious misconduct; the inquiry against him was fair and proper and prayed that the Complaint be dismissed.
5. After recording evidence adduced by both parties, the Presiding Officer 1st Labour Court, Bombay, by his order dated 4th January 1983 held that the inquiry against the workman was not fair and proper because to the prejudice of the workman in the domestic inquiry was held ex-parte on 21st April, 1977. The 1st Labour Court after setting aside the said inquiry, directed the parties to lead evidence on merits.
6. The said order dated 4th January 1983 passed by the 1st Labour Court, Bombay, is a subject-matter of challenge in the present Writ Petition. Mr. Patel, learned counsel for the Petitioner company has strenuously submitted before us that the impugned order of the 1st Labour Court was contrary to the law laid down by the Hon'ble Mr. Justice Jahagirdar in Maharashtra State Road Transport Corporation v. Niranjan Sridhar Gade and Anr. 1984 Mah.L.J. page 983 regarding the scope of an inquiry under Section 28 read with Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. According to the learned counsel for the petitioner, in holding an inquiry into the complaint under Section 28 of the said Act, the Labour Court had no power or authority to adjudicate about the fairness and propriety of the domestic inquiry conducted by the Petitioner. Secondly, it was submitted that there had been no violation of principles of natural justice by not granting adjournment of the inquiry on 21st April 1977, and in any event the same did not amount ourned at the instances of the workman. It has been also pointed out that according to the findings made by the 1st Labour Court on 21st April 1977 not only the workman was absent but his defence representative without any cause had also absented himself.
7. The expression "unfair labour practices" according to Section 3(16) of the 10 Act means unfair labour practices as defined in Section 26 of the Act. Section 26 lays down that unless the context requires otherwise, 'unfair labour practices' mean any of the practices listed in Schedules II, III and IV. Schedule IV sets out general unfair labour practices on the part of employers. Undoubtedly in conducting an inquiry in respect of a complaint made under Section 28(1) of the Act against an employer, the Labour Court is required to consider all or any of the practices set put in Schedule IV had in fact been committed by an employer. In other words, the scope of an inquiry under Section 28 against an employer would be confined to matters set out in Schedule IV and such inquiry proceedings would not be in the nature of an appeal in the sense an appeal Court functions as a Court of error providing for a rehearing of the entire matter. We have carefully perused the decision of Justice Jahagirdar in Maharashtra State Road Transport Corporation v. Niranjan Sridhar Gade and Anr (supra). The learned single Judge has not laid down any proposition contrary to the view, taken by us about the scope and effect of Section 28 read with Schedule IV of the Act. Before the learned single Judge, the employer Transport Corporation had filed a petition under Article 227 against an order passed by the Presiding Officer, Labour Court in Nasik holding that the termination of the service of a Driver of the Transport Corporation amounted to unfair labour practices within the meaning of Clauses (b), (d), (f) and (g) of Item 1 of Schedule IV of the Act (1 of 1972). The Writ Petition before Jahagirdar J. succeeded. In the facts of the said reported case, the learned Judge held that the Labour Court was not right in finding that by denying copies of the deposition of witnesses examined in the preliminary inquiry the rule of natural justice had been violated. The learned single Judge held that in the said case except two none of the other persons whose statements were recorded in the preliminary inquiry had been examined in the domestic inquiry. So according to the learned single Judge it is wholly unnecessary to supply copies of their statements recorded in the preliminary inquiry. The learned single Judge also noted that the rule of natural justice would have been vitiated only if in the domestic inquiry the inquiry officer had relied upon materials which had not been put to the delinquent workman. In the inquiry impugned in the Writ Petition disposed by Jahagirdar J., the Labour Court had purported to review the evidence regarding the charge against the delinquent workman that the conductor of the bus had handed over moneys collected from the passengers to him. In view of this position, the learned single Judge had observed that it was not open to a Labour Court which was not sitting as a Court of Appeal to sit upon the judgment over the findings recorded by the inquiry officer in a domestic inquiry unless those findings were perverse. The Labour Court in the said case had exceeded its jurisdiction in reversing the findings recorded by the domestic inquiry in this regard. In view of this, Jahagirdar J., had set aside the order of the Labour Court, Nasik, in the complaint case in question.
8. The learned counsel for the Petitioner himself has before us the decision of Padhye J., in Amravati District Central Cooperative Bank Ltd., Amravati v. Shamrao Tanbaji Ladavikar and Ors. reported in 1982 Mah.L.J. page 434. In our view the decision of Padhye J., in fact is against the contentions raised on behalf of the Petitioner. In the case before Padhye J., the Labour Court found that the evidence recorded in the domestic inquiry against the workman was vitiated because of non-observance of principles of natural justice. The same could not be taken into account while deciding the complaint. Accordingly, the Labour Court had granted permission to the employer to establish the inquiry against the workman was vitiated because of non-observance of principles of natural justice. The same could not be taken into account while deciding the complaint. Accordingly, the Labour Court had granted permission to the employer to establish the charges by adducing evidence in Court. The learned single Judge had upheld the said course adopted by the Labour Court. Before us the learned counsel for the Petitioner did not dispute that in the event in a complaint proceedings under Section 28 of the Act the Labour Court finds that the domestic inquiry was in breach of principles of natural justice. It is open to the Labour Court to call upon both the parties to adduce evidence. Since this proposition is not disputed by the Petitioner, we are not required to consider this aspect of the matter. In paragraph 16 of its impugned order, the Labour Court has observed, "However, as the enquiry is being set aside a further chance shall have to be given to the management to prove its case on merits as prayed by the Co., vide application dated 26-12-1982". In other words, the Petitioner company itself appeared to have prayed for giving such opportunity to establish the charge before the Court.
9. We have examined the order of the 1st Labour Court impugned in the present Writ Petition. We regret we are unable to give any countenance to the submissions made on behalf of the Petitioner that the Labour Court had in any way transgressed its powers under Section 28 of the Act. It is not very much disputed that the adjourned date of hearing was fixed on 21st April, 1977. The preceding day was a weekly off of the delinquent workman. On the 19th April, 1977 he had made a written application stating that on 21st April, 1977 (the date fixed for hearing), he was required to work in the second shift. He had prayed that the inquiry may be held during his working hours on 21st or he may be marked present during the second shift for being required to attend the inquiry at 10.00 a.m. Neither the workman had been asked to wait nor he was given any intimation about the course to be adopted about the holding of the inquiry on 21st April, 1977. A reply by the company was purported to be prepared but was never served admittedly on the workman. It may be also pointed out in the said undelivered letter of the company, it was prepared to accommodate the Petitioner. But the said letter being not communicated to the workman, according to the Labour Court he had for valid reason did not appear at the inquiry on 21st April, 1977. On the said date, not only evidence adduced by the company was closed but also the workman had no opportunity to adduce evidence on his side. In case it is found that the workman had valid reasons for not attending the inquiry on 21st April, 1977, it was in consonance that no separate ground was advanced for non-attendance by the defence representative. Obviously unless the workman himself attended, his defence representative would have no occasion to participate in the inquiry.
10. The learned counsel for the petitioner is right in his submission that every infraction of the principles of natural justice may not amount to indulging in unfair labour practices within the meaning of Clause (f) of Item (1) Schedule IV of the Act. There must be utter disregard of the principles of natural justice. In other words, it must be a gross one causing prejudice or amounting to denial of fair opportunity to defend the charges in the domestic inquiry. In the instant case having regard to the fact that not only there was ex-parte closing of company's evidence without affording the right to cross-examination but also deprivation of the workman to adduce evidence on his side, the Labour Court was entitled to hold that there had been utter disregard of the principles of natural justice in the domestic inquiry impugned in the Complaint. In the instant case the Labour Court did not arrogate itself the powers of an appeal Court by making appraisal or appreciation about the merits of the charges framed against the workman. The Labour Court had characterised inquiry as not fair and improper upon its determination that the ex parte inquiry on 21st April, 1977 amounted to violation of the principles of natural justice. merits. For the foregoing reasons we reach the conclusion that the Labour Court did not commit any error of jurisdiction and the impugned order does not warrant interference by this Court. We accordingly discharge the Rule and dismiss the Writ Petition. In the circumstances of the case there is no order as to costs.
The order be communicated to the Labour Court expeditiously so that the case may be disposed of at an early date.