Bombay High Court
The Ammunition Factory Co-Operative ... vs Balasaheb Ramchandra Ghule & Another on 28 October, 1999
Equivalent citations: 2000(1)BOMCR555, (2000)1BOMLR955, [2000(85)FLR596], 2000(1)MHLJ238
Author: R.J. Kochar
Bench: R.J. Kochar
ORDER R.J. Kochar, J.
1. The petitioner is a Co-operative Credit Society formed by the employees of the Ammunition Factory at Khadki in Pune District. The 1st respondent is its ex-employee, who came to be dismissed from employment by an order dated 28-2-1987 following such a resolution passed by the Managing Committee on 27-2-1987. The charge against the 1st respondent was serious. It was alleged against him that he had physically assaulted the Hon. Secretary Shri Pangarkar in his office.
2. The 1st respondent being aggrieved by the aforesaid order of dismissal on 28-2-1987 filed a Complaint of Unfair Labour Practice under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act") read with Item 1 of Schedule IV of the Act. He has prayed for relief of reinstatement with full back wages and continuity of service. Before the Labour Court the petitioner society filed its written statement in the form of an affidavit contesting the complaint of Unfair Labour Practice on various grounds. The petitioner society has set out the incident which took place on 27-2-1987 i.e. the assault by the 1st respondent on its Hon. Secretary Shri Pangarkar and threats issued to the other Committee Members of the society. The affidavit further discloses a very bad past record of the 1st respondent. There were as many as 20 memos or warning letters issued to him from 22-6-1979 onwards. All these warning letters or memos were issued to him for his negligence or misconduct of one or the other nature. The decision of the petitioner society was, therefore, in the given set of circumstances. It is an admitted position that the order of dismissal was not preceded by a domestic enquiry. As per the settled law, when any order of punishment is not preceded by a domestic enquiry, held by the employer, he has to adduce cogent and sufficient evidence before the Labour Court to justify the order of punishment after praying for such an opportunity from the Court. In the present case the petitioner society has examined its Hon. Secretary Shri Pangarkar in support of its action to dismiss the 1st respondent from employment. Shri Pangarkar in his evidence has in clear terms stated what happened on the relevant day i.e. on 27-2-1987 at 4.30 p.m. He has stated on oath in para 3 of his evidence that "the 1st respondent had met me near the entrance of society and told me that he wanted to talk with me". Shri Pangarkar therefore called him in the office. It is further stated that "on entry the 1st respondent in anger told him that he was fined without hearing." Shri Pangarkar further has said in his evidence that 1st respondent had assaulted him by a fist blows on his face and that his spects fell down and that right side of the spects had broken. Thereafter the 1st respondent lifted his tiffin in his hand to further hit him but by that time, in an answer to push bell call, the other committee members entered the Chamber. This incident led to the committee to resolve to get rid of the 1st respondent. By resolution passed on 28-2-1987 in an urgent meeting it was decided to dismiss the 1st respondent forthwith from employment as he was incompetent and in spite of giving opportunity for improvement he did not improve and indulge into the act of assaulting the Secretary. Pursuant to the said resolution the Chairman of the society communicated the decision of the Managing Committee to the 1st respondent dismissing him from service for misbehaviour/misconduct of assaulting the Secretary and threatening society authorities. The evidence of Shri Pangarkar has virtually gone unchallenged. There is no cross examination on behalf of the 1st respondent on the point of the incident of assault and threat issued by the 1st respondent to the Committee Members.
3. The petitioner society had examined another witness, who corroborates the evidence of Shri Pangarkar. He has testified that he had heard that on 27-2-1987 at 4.30 p.m. some incident had taken place in the office of the petitioner society, though he was not personally present. He has further said that he being a member of the Managing Committee was present in the meeting which unanimously resolved to dismiss the 1st respondent from employment. As against the said positive evidence of Shri Pangarkar the 1st respondent has denied the charge against him that he had assaulted Shri Pangarkar. As far as his past record is concerned he admitted that he had received those warnings/memos in the past. On the basis of the aforesaid evidence on record the Labour Court held that there was no case of victimisation or colourable exercise of the employers' powers and that there was no Unfair Labour Practice engaged in by the petitioner society. I may mention here that the Labour Court has considered the pleadings and the oral and documentary evidence before it. After framing issues it has come to the positive conclusion that the 1st respondent was guilty of the act of misconduct for which he was dismissed from employment. The Labour Court has given reasons for its conclusions. I have also myself gone through the oral and documentary evidence to consider whether the findings of the Labour Court can be said to be baseless or perverse. I do not find any infirmity in the judgment and order of the Labour Court and according to me, the petitioner society has discharged its burden before the Labour Court to justify its action to dismiss the 1st respondent from employment and according to me, the judgment and order of the Labour Court ought to have been confirmed by the Industrial Court in revision under section 44 of the Act. The power of the Industrial Court under the said provision is supervisory in nature and can be exercised only when there is an error apparent on the face of record and that if the impugned order of the Labour Court is perverse and no reasonable man would come to such conclusion as that of the Labour Court. The scope under section 44 is very narrow. In the present case the 1st respondent filed the revision application before the Industrial Court and the Industrial Court has treated the said revision application as if it was sitting in an appeal over the judgment and order of the Labour Court. I fail to understand on what basis the Industrial Court has held that the order of the Labour Court was perverse or illegal. I further fail to understand how it is held by the Industrial Court that the order of dismissal of the 1st respondent amounts to victimisation and not in good faith. Even though the learned member of the Industrial Court has stated that he was aware of the powers of superintendence under section 44 of the Act the same does not include the power to review and/or re-assess the evidence on record. The learned Member has in fact converted the revision application before him as a full-fledged appeal. As I have already stated hereinabove that there was sufficient evidence before the Labour Court in justification of the order of dismissal of the 1st respondent, there is no infirmity or perversity to come to a different conclusion. In my opinion the Industrial Court has crossed its narrow boundary of jurisdiction in setting aside the order of the Labour Court. The petitioner society having tolerated the 1st respondent for so many years and every time it took lenient view in imposing a very minor punishment in the nature of warning or memo, it finally dismissed him when the Hon. Secretary himself was assaulted by the 1st respondent that it cannot be said to be an act of victimisation or a colourable exercise of powers or the action to be not in a good faith. In the present case, the evidence of Shri Pangarkar has gone unchallenged and considering the past record of the 1st respondent, according to me the order of dismissal alone was proper and justified.
4. The Industrial Court ought not to have interfered with the order of the Labour Court in its narrow supervisory jurisdiction. I, therefore, quash and set aside the judgment and order dated 3-8-1989 passed by the Industrial Court, Pune and restore the judgment and order passed by the Labour Court on 29-9-1988 dismissing the complaint filed by the 1st respondent. In the aforesaid circumstances rule is made absolute in terms of prayer Clause (a). No order as to costs.
5. Rule made absolute.