Bombay High Court
Sharad Dinkar Pachkhede vs The Ground Water Survey & on 11 March, 2010
Author: A.H. Joshi
Bench: A.H. Joshi, P.B. Varale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Letters Patent Appeal No.36 of 2009
IN
Writ Petition No.5088 of 2005 [decided]
With
Letters Patent Appeal No.37 of 2009
ig IN
Writ Petition No.4669 of 2005 [decided]
[A] Letters Patent Appeal No. 36 of 2009 :
Sharad Dinkar Pachkhede,
aged major,
occupation - nil,
resident of Tirtharup Nagar,
Ward No.2, Tukum,
Distt. Chandrapur. .... Appellant.
Versus
The Ground Water Survey &
Development Agency,
Rooms 15 and 16,
Administrative Building,
Civil Lines,
Chandrapur, through
its Senior Geologist. .... Respondent.
*****
Mr. S.D. Pachkhede, Appellant-in-Person.
Mr. S.G. Loney, Adv., for sole respondent.
*****
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2
[B] Letters Patent Appeal No. 37 of 2009 :
Sharad Dinkar Pachkhede,
aged major,
occupation - nil,
resident of Tirtharup Nagar,
Ward No.2, Tukum,
Distt. Chandrapur. .... Appellant.
Versus
1. The Ground Water Survey &
Development Agency,
Rooms 15 and 16,
Administrative Building,
Civil Lines,
Chandrapur, through
its Senior Geologist.
2. The Director,
the Ground Water Survey & Development
Agency, State of
Maharashtra,
Office at Shivaji Nagar,
Pune. .... Respondents.
*****
Mr. S.D. Pachkhede, Appellant-in-Person.
Mr. S.G. Loney, Adv., for respondent nos. 1 and 2.
*****
CORAM : A.H. JOSHI AND
P.B. VARALE, JJ.
Date : 11h March, 2010.
ORAL JUDGMENT [Per A.H. Joshi, J]:
1. These are two Letters Patent Appeals arising out ::: Downloaded on - 09/06/2013 15:42:16 ::: 3 of two separate Writ Petitions and two Complaints of Unfair Labour Practice filed by the appellant.
For the sake of convenience, appellant is referred to as "a workman", and respondents as "employer".
2. Facts, which are common in both cases, are narrated in paras hereinafter.
3. Complaint [ULP] No. 514 of 1990 :
(A) Complainant / Workman's version [a] Workman-complainant was appointed as a Typist-cum-Clerk from October, 1981.
[b] His services were terminated on 2nd August, 1986.
[c] Workman challenged the termination by raising an Industrial Dispute, for which Reference No. 37 of 1987 was made to the Labour Court.
[d] During pendency of Reference from 1st January, 1987, the workman was taken back in employment.
[e] He was in continuous service till 21st March, 1990.
[f] On 21st March, 1990, the workman's
services were terminated by a
termination letter without a notice,
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4
terminating the services with effect
from 21 st April, 1990, without showing
the reason for termination and without payment of retrenchment compensation, however, he was asked to collect amount of retrenchment compensation without specifying the amount.
[g] He filed Complaint [ULP] No. 514 of 1990 challenging the termination.
[h] The challenge in the complaint was that the termination order was by way of Unfair Labour Practice under Item 1 (b) of Schedule-IV of the MRTU & PULP Act. The termination was in colourable exercise of employer's power and as the termination is in violation of Section 25F and 25G of the Industrial Disputes Act and Rules 80 and 81 of the Bombay Industrial Disputes Rules, 1957.
[i] During pendency of complaint, due to
an interim order passed on an
application under Section 30 (2) of the Act, the workman was continued in the employment till he was again terminated.
(B) Employer's version :
The Complaint [ULP] No. 514 of 1990 was opposed by the employer, contending that:-
::: Downloaded on - 09/06/2013 15:42:16 ::: 5 (a) The work assigned to the
workman was of a skilled labour. He
was not appointed as a Typist-cum-
Clerk. The work was no more available and, therefore, his services were terminated.
(b) The workman was not in
continuous service.
(c) Compliance of Section 25F and
25G was made. He was offered
retrenchment compensation.
ig (d) Seniority was not prepared as
complainant was only person so
employed.
(e) There is no sanctioned post of
Typist-cum-Clerk.
(f) Had the workman to be
appointed or reinstated in the post of Typist-cum-Clerk, it ought to be in compliance with Recruitment Rules and after following the procedure of recruitment, which the workman has not undergone.
(g) In the result, services of the complainant were purely temporary on daily wage basis.
(h) In the result, the termination
was the only choice left with the
employer, which was done.
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6
[i] The employer opposed the
second complaint and claimed that in
spite of intimation and registered
notices sent on the address of the
complainant which was on record, he did not turn up, and rather refused to receive the notices, which is apparent from the endorsement of the postman. The employer was, therefore, left with no choice than to terminate.
4. Trial & result of Complaint [ULP] No. 514 of 1990
(a) Copy of Complaint [ULPA] No. 514 of 1990 is on record at Annexure-D [page 52 onwards of Letters Patent Appeal No. 37 of 2009]. The averment in relation to non-
compliance of Section 25F and Section 25G and Rule 81 of the Bombay Industrial Disputes Rules, 1947, is replied in the Written Statement in paragraph 3 (f), which reads as follows:-
"3(f) It is vehemently denied that there is any violation of section 25 (f) and 25 (g) of Industrial Dispute Act or any Rule framed there under much less rules 80 and 81. It is submitted that a proper notice was given to the complainant. It is further submitted that the complainant alone is working on daily wages in the office as skilled labour and he was assign the work available with the respondent in the capacity of a skilled labour and therefore there is no question of maintaining any seniority list with the Department. The allegations are totally misconceived hence denied in toto. .............................."
[Quoted from page nos. 57 and 58 of the paper-book of Letters Patent Appeal No. 37 of 2009].
::: Downloaded on - 09/06/2013 15:42:16 ::: 7(b) It is pertinent to note that crucial averment of compliance of Rule 81 of the Bombay Industrial Disputes Rules, 1947 is answered in the form of denial.
(c) It is seen that the workman has led his evidence and has asserted whatever he has pleaded. It can be seen from his oral evidence as to what he had said about maintenance and preparation of seniority list, which reads as follows:-
"................No seniority list was prepared prior to my termination. The persons who joined the services in the year 86 were retained in services. They are Chandkan Pathan, Maroti Mankar, Zunzunwar are the juniors."
[Quoted from page nos. 57 and 58 of the paper-book of Letters Patent Appeal No. 37 of 2009].
(d) Ashakant Sitaram Ramteke, officer holding the post of respondent at the relevant time when evidence was to be led, has stepped into the witness box.
This witness has asserted that the amount of retrenchment compensation was offered to the complainant which he had refused to accept.
(e) In this background, the learned Judge of the Labour Court allowed the complaint [ULPA] No. 514 of 1990 by Judgment and order dated 23rd January, 2001. The learned Judge of Labour Court has recorded a finding that there was ::: Downloaded on - 09/06/2013 15:42:16 ::: 8 no illegality in the termination. The finding in this regard reads as follows:-
"12. ......................................
..........I find that when the complainant was working on daily wages on temporary basis and he was not engaged on sanctioned and vacant post, his dis-engagement cannot be construed to be a retrenchment and therefore, provisions of I.D. Act are not attracted to the case of complainant. Even if there is no compliance of provision of Section 25G and Rule 81 of Bombay Industrial Disputes Rules, the termination of complainant cannot be held illegal. It is clear from the evidence of complainant and respondent's witness that respondent had issued one month's notice. He was offered retrenchment compensation to the complainant. The complainant did not approach to collect retrenchment compensation as per letter issued by respondent. There is fault on the part of the complainant by not collecting retrenchment compensation from the office of respondent. As held by Hon'ble Bombay High Court, I find that there is compliance of Section 25F of I.D. Act.
From the facts and circumstances, I find that complainant failed to prove that termination is illegal and his services are terminated by way of victimization or for false reason and with undue haste. On the other hand the respondent proved that the termination is for bonafide reason as his services were not required to the respondent department. He was working on daily wages temporary basis employee and therefore, he was terminated by respondent.
Under such circumstances, I find that no unfair labour practices committed by respondent while terminating services of complainant. The Issue No. 2 and 3 are answered accordingly."
[Quoted from page nos. 43 and 44 of the paper-book of Letters Patent Appeal No. 37 of 2009. Sub-paragraphing is done for convenience while reading].
(f) As the Revision Application before Industrial Court under Section 44 of the Act being Revision Application No. 5 of 2001 against the judgment of Labour ::: Downloaded on - 09/06/2013 15:42:16 ::: 9 Court has been dismissed by Judgment and order dated 28th July, 2005, the workman filed a Writ Petition bearing no.
4669 of 2005.
5. As to Second Case (Complaint [ULP] No. 84 of 1997) before Labour Court :
(A) Version of the Workman :
[a] Complainant was on duty in view of
interim relief granted in Complaint [ULP] No. 52 of 1990.
[b] The respondent has terminated services with effect from 15th April, 1997 by publishing a Public Notice in Daily "Mahavidarbha" dated 29th April, 1997 on account of absence from duty without intimation since 1 st March, 1997.
[c] Complainant had already furnished leave application and also furnished a Medical Certificate.
[d] Complainant gave approach notice on 2nd May, 1997 by Registered Post, which was refused.
[e] The employer has terminated the services because the action of dismissal was taken with determination to do so, as the complainant had submitted a complaint about working of the office and corruption to Shri Annasaheb Dange, the ::: Downloaded on - 09/06/2013 15:42:16 ::: 10 Minister of Water Supply, on 5th June, 1996.
[f] The act of termination was on account of misconduct of absence from duty, and it was not preceded by any charge-sheet, conduct of enquiry and observance of principles of natural justice.
[g] Interim relief was not granted and complainant remained out of employment.
(B) Employer's version :
(a) The termination was on account of absence from duty.
(b) The termination is not illegal because no enquiry was conducted.
(c) A Show-cause-Notice was given to complainant which he refused to accept, and it was returned with Postman's endorsement "refused."
(d) The complainant was not interested in the job and, therefore, the termination was effected by giving a public notice.
6. Hearing and Judgment in Complaint [ULP] No.84/1997
(i) In support of the complaint, workman has examined himself, and proved his case, stating that:-
::: Downloaded on - 09/06/2013 15:42:16 ::: 11 (a) He was on sick leave.
(b) He had submitted application
for leave, and had also furnished a Medical Certificate.
(c) The address on which the notices were sent, was not the place where workman was residing.
(d) He had changed the residence.
The notice was never tendered to him and, therefore, he had not refused to receive the notice alleged to have been sent to him.
(e) He was residing at C/o Tarabai Joshi, Balaji Ward, Chandrapur, where notice was not tendered.
ig(f) The workman specifically deposed that he had not received any correspondence from the respondent till termination and that he had not refused to accept any letter from the Department.
(g) The termination was not preceded by a Departmental Enquiry and a charge-sheet.
(ii) The witness Ashakant Sitaram Ramteke stepped into the witness box and asserted as follows:-
...................................... .........Complainant was remaining absent on duty without obtaining permission or leave application. Complainant was remaining absent for 2,3 days in every month without giving leave application and he was doing private work of handpump repairing. Therefore the work of respondent Deptt. was suffered due to absent of complainant from duty. Therefore respondent Deptt. has been issued show cause notice of dt. 24.10.96 [Ex.37] to the complainant, 26.2.97 [Ex. 36], 30.3.97, 5.4.97 to the complainant for calling him on duty. I have brought the office copy of letter dated 30.3.97."
[Quoted from page no. 64 of Record and Proceedings of Complaint [ULP] No. 84 of 1997].
::: Downloaded on - 09/06/2013 15:42:16 ::: 12(iii) The learned Judge of the Labour Court, Chandrapur, has allowed the complaint by Judgment and Order dated 20th October, 2004, and declared the termination to be by way of unfair labour practice, and granted the relief of reinstatement and back wages.
(iv) The order passed by the Labour Court was challenged by filing Revision Application No. 83 of 2004.
The Revision Application has been dismissed by Judgment and Order dated 3rd March, 2005.
(v) Aggrieved employer filed Writ Petition No. 5088 of 2005.
7. Hearing of these Writ Petitions Workman's Writ Petition No. 4669 of 2005, and employer's Writ Petition No. 5088 of 2005 were heard by learned Single Judge of this Court, and decided by a common Judgment and Order dated 7th July, 2008.
Writ Petition No. 5088 of 2005 filed by the employer has been allowed.
The Writ Petition No. 4669 of 2005 filed by the employee has been dismissed.
As to Judgment of learned Single Judge in Writ Petition arising out of Complaint [ULP] No. 514 ::: Downloaded on - 09/06/2013 15:42:16 ::: 13 of 1990 - the First Complaint:
8. The learned Single Judge of this Court found no merit in the Writ Petition No. 4669 of 2005, on the ground that the post held by the workman itself was temporary.
The discussion in this regard is seen in Paragraph Nos. 9 and 10 of the judgment of learned Single Judge of this Court, relevant portion whereof reads as follows:-
"9. [a] There is absolutely nothing shown by the petitioner/complainant that this finding is in any manner perverse.
[b] ig As regards his contention that he had gone to the office on 20.4.90 and that the amount was not ready, there is absolutely no whisper in his evidence and, hence, such contention at this stage cannot be accepted.
[c] As regards the contention regarding change of address, suffice it to say that it was the responsibility of the petitioner/complainant to inform the change in address to his employer, if according to him his address had changed.
[d] He cannot be allowed to take advantage of his own wrong. But then that argument also appears to be misleading inasmuch as the remark of the postman that he refused to accept has not been rebutted by any evidence by him. I, therefore, hold that there was compliance of Section 25F of the Industrial Disputes Act."
"10. [a] As regards the alleged violation of Section 25G of the Industrial Disputes Act is concerned, perusal of his complaint shows that there is absolutely no pleading that three junior persons named by him for the first time in evidence were retained in service.
[b] In the absence of pleading, I do not think that the petitioner/complainant can be allowed to take advantage of evidence on this material point.
[c] Had he stated the names of those alleged junior persons in his complaint, the department would have notice thereof and would have opportunity to rebut the same.
[d] Therefore, I do not find any substance in the contention so also the finding ::: Downloaded on - 09/06/2013 15:42:16 ::: 14 of the Labour Court and the Industrial Court that junior were retained in service, when the complainant's services were terminated.
[e] At any rate, Ashkant Ramteke in his evidence denied such retention of his juniors in service.
[f] In the wake of this position, it is not possible to accept the contention that mere non-publication of seniority list under Rule 81 would vitiate the termination order.
[g] It is well settled that it is not the rule that by merely finding invalid termination order, the Court must order reinstatement.
[h] Looking to the fact that the complainant after entering into daily wage service hardly worked with sincerity and in the absence of any post must less sanctioned post, the Courts below were right in refusing any relief.
igThe Writ Petition No. 4669 of 2005 therefore will have to be dismissed."
[Quoted from page nos. 82, 83 and 84 of the paper-book of Letters Patent Appeal No. 37 of 2009]. [Sub-paragraphing and alphabetic marking to sub-paragraphs is done for emphasis and for convenience of reference].
Analysis of part of Judgment in Writ Petition No. 5088 of 2005 which is arising out of Complaint [ULP] No. 84/1997 - Second Complaint :
9. In relation to findings of Labour Court recorded in second Complaint, learned Single Judge held as follows:-
"11. [a] Coming to Writ Petition No. 5088/2005, it is seen that the complainant was engaged on daily wages in 1981 and during his service he developed the habit of remaining absent by his own sweet will.
[b] He was therefore served with show- cause-notices for his earlier absenteeism on 24.10.1996 and 26-2-1997, but then he again remained absent from 1.3.1997 without intimation unauthorizedly and on his own without even getting his leave sanctioned first.
[c] On 30.3.1997 he was again given show- cause-notice but to no use and that is why ultimately termination order dated 15.4.1997 ::: Downloaded on - 09/06/2013 15:42:16 ::: 15 came to be issued.
[d] Since he did not accept the termination order a newspaper publication was required to be made in daily "Mahavidarbha" on 24.9.1997.
[e] The complainant did not respond to any of the show-cause-notices nor furnished any explanation.
[f] In my opinion, an employee, who was not regular in service, appointed in a regular post but was working on daily wages and have been asked to show cause on three occasions and his refusal to explain anything is enough to infer that there was compliance of principles of natural justice.
[g] If the complainant chose not to furnish any explanation about his repeated absenteeism, I do not think a departmental enquiry was required to be conducted as held by the learned Labour Court.
[h] After all purpose of holding departmental enquiry is to find out a truth, if there is a dispute.
[i] In the instant case, even before me, the petitioner has admitted that he was absent without obtaining leave vide paragraph No.6 of his written argument.
[j] However, he is claiming in the written argument that he had filed leave applications from 1.3.1997 till 30.4.1997.
[k] Though he claims that he had filed leave applications in his evidence he admitted as under:
"I have not received any information in respect of grant of leave from the respondent. It is true that I had not confirmed that my leave was sanctioned by the officers of the respondent."
[l] He further stated as under:-
"It is true that after receipt of Exh.34 dated 2.8.1997, I have not submitted any medical certificate to the respondent - Department nor filed on record during the pendency of the complaint."
12. Now it will be relevant to quote the evidence of the employer a witness No.1 Ashakant Ramteke for the employer, who stated as under:
"Complainant was remaining absent ::: Downloaded on - 09/06/2013 15:42:16 ::: 16 on duty without obtaining permission or leave application. Complainant was remaining absent from 2-3 days in every month without giving leave application and he was doing private work of hand pump repairing. Therefore the respondent - Department issued show- cause-notices to him dated 23.10.1996 (Exh.37), 22.6.1997 (Exh.36), 30.3.1997 and 5.4.1997 calling him on duty."
13. [a] This evidence has practically gone unchallenged.
[b] I have therefore no hesitation in rejecting the contentions raised by the complainant that he had obtained leave and then proceeded on leave.
[c] On the contrary, his admission shows that he remained absent on his own and, therefore, it cannot be said that departmental enquiry was required to be held, particularly in the light of the above facts and the complainant being on daily wage category.
[d] I, therefore, find that both the impugned orders are liable to be quashed and set aside.
[e] Writ Petition No. 5088/2005, therefore, will have to be allowed."
[Quoted from page nos. 84 to 87 of the paper-book of Letters Patent Appeal No. 37 of 2009]. [Sub-paragraphing and alphabetic marking to sub-paragraphs is done for emphasis and for convenience of reference].
10. The common judgment rendered in both the Writ Petitions is challenged in these Letters Patent Appeals.
The jurisdictional issues involved in these appeals are:-
(A) As to challenge to the Judgment of this Court in Writ Petition No.4669 of 2005 arising out of Complaint [ULP] No. 514 of 1990 :
[a] Has the employer proved the fact of ::: Downloaded on - 09/06/2013 15:42:16 ::: 17 preparation and maintenance of Seniority List by the employer?
[b] Has the employer proved the observance of principle of 'Last come; First go'?
[c] Whether the version of the employer that the work which complainant was doing ceased to exist is true and correct?
[d] Whether the Complainant was the only person in the cadre and hence it was not necessary to prepare the Seniority List?
[e] igWhether it was necessary for the complainant to have pleaded in the body of complaint three names of the persons given by him in his oral evidence?
[f] Whether failure to mention names in the complaint would vitiate the complainant's case, and deny to the employer a fair opportunity of trial?
(B) As to challenge in relation to the Judgment arising out of Complaint [ULP] No.84 of 1997 in Writ Petition No. 5088 of 2005 :
(1) Whether the act of unauthorized absence constitutes a misconduct?
(2) Whether it is proved that the notice sent to the employee was refused by him?
(3) What was the correct address of the ::: Downloaded on - 09/06/2013 15:42:16 ::: 18 employee on record, and whether it was proved by the employer?
(4) If it be a case of termination towards misconduct of habitual absentism, would the termination be legal when effected without holding a Departmental Enquiry?
(5) Is the termination valid when done in the manner adopted by the employer, i.e., by giving a Public Notice?
Analysis of findings in the Judgment in Writ Petition No. 4669 of 2005, conclusions and reasons:
11. In order to scrutinize the points, this Court has carefully gone through the evidence led by respective parties and its appreciation by the learned Single Judge.
What this Court finds in relation to the evidence on record in Complaint [ULP] No. 514 of 1990 is discussed hereinafter:-
(a) It is seen from Exh.32, which is a copy of letter by the complainant, that one Shri Namjoshi was the officer who was Head of Office of Respondent No.2. It is pertinent to note that the oral evidence opposing the complaint was deposition of Shri Ashakant Ramteke. He has stated that he has deposed on the basis of record. He has not clarified circumstances in which Mr. Namjoshi could not come before the Court.::: Downloaded on - 09/06/2013 15:42:16 ::: 19
(b) It is seen that no other documentary evidence was brought to prove the fact of nature and category in which the complainant was appointed and the cadre strength, the fact as to maintenance of seniority list and to prove that it was a case of retrenchment and the rule of 'last come' 'first go' was followed.
(c) Examination-in-Chief of Ashakant S. Ramteke, Officer holding the post of respondent, runs only into nineteen lines.
ig This evidence does not disclose a single word about preparation and maintenance, publication and decision on finalization of seniority list. He has even failed to deny that:-
(i) Juniors named in the oral evidence of the workman were not in the employment.
(ii) Employer's version as regards status and nature of work which the workman had pleaded.
(d) The workman had deposed that he did not receive any notice. It was, therefore, employer's positive case that notice was sent, but was refused. Employer's witness relied upon the refusal and specifically said that he does not want to examine the postman. In this situation, when service of notice and payment of retrenchment compensation were mandatory under Section 25F of the Industrial Disputes ::: Downloaded on - 09/06/2013 15:42:16 ::: 20 Act, compliances of these factors cannot be taken for granted as complied, and it was obligatory on the employer to prove these compliances to the best of preponderance of probabilities. This was, however, not done.
12. From appreciation of material examined herein before, and upon analysis of submissions of respective Advocates, this Curt has arrived at certain conclusions in relation to the Judgment of learned Single Judge, subject-
matter of challenge in Letters Patent Appeal No. 37 of 2009, i.e., Writ Petition No. 4669 of 2005, as follows:-
[a] That no juniors are retained in service is a matter to be proved by documentary evidence, and could not be proved by oral evidence.
[b] What was the strength of the cadre in which the workman was working is a matter of proof by documentary evidence.
[c] The documentary evidence was in possession of the employer. It was not the employer's case that the documentary evidence was lost, or had ceased to exist and could not be brought.
[d] An effort to prove a fact liable to be proved by documentary evidence by tendering oral statement, cannot be permitted. It is a settled doctrine, apart from rule of law in Evidence Act, that oral evidence to prove any fact is ::: Downloaded on - 09/06/2013 15:42:16 ::: 21 to be excluded when documentary evidence exists.
[e] Moreover, this fact is a matter of personal and special knowledge of the employer, who had duty to prove said fact.
[f] Even according to Section 106 of Evidence Act, such facts are required to be proved by the party in whose possession and control and special knowledge, the fact and the best evidence exists.
This view is supported by two reported judgments - one of Hon'ble Supreme Court, and another of Division Bench of this Court, in cases of [1] Kanpur Electricity Supply Company Ltd. Vs. Shamim Mirza[(2009) 1 SCC 20], and [2] Sub-Divisional Engineer, Irrigation Project, Yavatmal Vs. Sarang Marotrao Gurnule [2008 (4) Mh.L.J. 514].
[g] Therefore, the finding recorded by learned Single Judge that Section 25G of the Industrial Disputes Act was not violated as no juniors were retained in view of sole testimony of Mr. Ramteke, is contrary to settled principles of law and justice.
[h] The finding of the learned Single Judge that the amount of retrenchment ::: Downloaded on - 09/06/2013 15:42:16 ::: 22 compensation was sent at the address of the workman and he has refused to accept it and there was no denial of refusal comes under the serious cloud of illegality.
13. Item [h] of Para 8 quoted foregoing consists of a finding and observation, namely:-
[h] Looking to the fact that the
complainant, after entering into daily wage
service, hardly worked with sincerity and in
absence of any post, much less sanctioned one, Courts below were right in refusing relief.
This finding seems to be the moral conviction of learned Single Judge in relation to inappropriate and evasive approach in discharge of duties by workman which the learned Single Judge has gathered. We do record our inability to subscribe to this finding.
14. We also hold that holding at the fag end of the case that because the workman was lacking sincerity in his work, he does not deserve any latitude and any relief, is a finding recorded without this matter being an issue in the the case, hearing and decision in the trial. This finding is based on a conclusion arrived at in gross non-observance of principles of natural justice. A workman, who had come to the Court demanding justice, is denied it without serving upon him a charge-sheet by the employer, either ::: Downloaded on - 09/06/2013 15:42:16 ::: 23 before termination or even after termination and even without an opportunity to meet these imputations at the hands of employer in a domestic Tribunal or before the Court of Law. These findings as well, therefore, cannot be subscribed and deserve to be set aside.
15. This Court is conscious to the slight deviation which law has received, namely whenever per circumstances, it would be impossible to grant reinstatement, it can be refused and the relief can be moulded. There has even been a change in the settled precedents as to grant of back wages.
At this stage, Court is not considering the aspect of grant of back wages. The matter, which is being considered, is whether upon finding that the termination is effected in violation of Section 25F and 25G of the Industrial Disputes Act, what shall be the order to be passed as to relief to be granted?
16. It is a well settled position of law that violation of Section 25F and 25G has to result in reinstatement, as these provisions are mandatory. This Court is, therefore, with utmost humility, unable to subscribe with the views of the learned Single Judge noted in Item No. [a] of Para 20 and quoted in para 21 to the effect that "it is well settled that it is not the rule of law that if the termination is found to be invalid, reinstatement must follow." What learned Single Judge has believed is not the ::: Downloaded on - 09/06/2013 15:42:17 ::: 24 law settled by binding precedents. On this ground as well, the views of the learned Single Judge cannot be approved.
Analysis of findings recorded in the Judgment in Writ Petition No. 5088 of 2005 and conclusions and reasons :
17. In so far as the views and findings recorded by learned Single Judge in Writ Petition No. 5088 of 2005 arising out of Complaint [ULP] No.84 of 1997 are concerned, it is pertinent to note that it is a case where the workman had proved that he had proceeded on leave. According to him, he had even submitted a Medical Certificate.
It is not the employer's case that after notices of show cause were given to him towards his unauthorized absence, a show-cause or a charge-sheet was served upon him.
All that was done is that his services were terminated through a public notice.
18. In the background of deposition of the workman, the evidence of the employer's witness Shri Ashakant Ramteke reads in his deposition as follows:-
"Complainant was remaining absent on duty without obtaining permission or leave application. Complainant was remaining absent from 2-3 days in every month without giving leave application and he was doing private work of hand pump repairing. Therefore, the respondent - Department issued show- cause-notices to him dated 24.10.1996 (Exh.37), 22.6.1997 (Exh.36), 30.3.1997 and 5.4.1997 calling him on duty."::: Downloaded on - 09/06/2013 15:42:17 ::: 25
[Quoted from page no.73 of the paper-book of Letters Patent Appeal No. 36 of 2009].
19. The said witness - Mr. Ramteke has also deposed on the basis of the Postman's endorsement on the envelope received back that it was tendered by the postman, and was refused, and, in the result, the termination order was issued by public notice.
20. In the cross-examination, the witness - Mr. Ramteke has stated that the Written Statement is signed by Senior Geologist In-charge - Mr. J.C. Bhatt, and he was giving evidence on the basis of record and personal knowledge. He accepts that the complainant had made several complaints to the superiors about office of respondent, including against himself [Mr. Ramteke]. He admits that due to said complaints made against the office, an enquiry was started against him.
21. This witness admits that the address for correspondence is given by the complainant while entering the job, and he does not remember whether complainant has given address, namely "C/o Tarabai Joshi, Balaji Ward".
22. Witness Mr. Ramteke has accepted that he does not want to examine postman to prove the refusal. He further admits that no enquiry was held against the complainant on the basis of allegations which are mentioned in the ::: Downloaded on - 09/06/2013 15:42:17 ::: 26 termination order which was published in the newspaper.
23. It is not the employer's case that when the absentism is a misconduct and services are being terminated on that account, it could be done without a show-cause-
notice, charge-sheet, Departmental Enquiry etc.
24. Here is a case where the employer has taken law in his own hands and has terminated the services. It needs to be viewed that in the background of what the employer's witness has stated, the termination is intended to deal with the employee for his misconduct, yet principles of natural justice are not followed and no Departmental Enquiry is conducted.
25. In this background, it will be useful to look at the findings recorded by learned Single Judge. The learned Single Judge finds that when the employee was given a public notice, it was due observance of principles of natural justice.
26. The learned Single Judge was carried with an impression that present was an obvious case where no procedure beyond a simple show cause was necessary and acts and omissions constituting misconduct were not required to be proved even before domestic Tribunal and, therefore, a Departmental Enquiry is not necessary when the truth is to ::: Downloaded on - 09/06/2013 15:42:17 ::: 27 be found out, the truth being obvious.
27. It is true that what are exact rules which constitute observance of principles of natural justice is not defined by enacted rule of law or laid down by any precedent.
The scope and compass of principles of natural justice varies from case to case and facts of the case.
Nevertheless for the workers who are governed by substantive rules framed under Article 309 of the Constitution of India, those will have to be followed, namely Maharashtra Civil Services (Discipline & Appeal) Rules, 1978. To those of the employees serving on Work Charged Establishment, for whom a post or cadre does not exist on the sanctioned establishment of the Govt., Industrial Employment Standing Orders and Model Standing Orders would apply. This would necessitate holding a Departmental Enquiry for acts of commission and omission, which amount to a major misconduct entailing a penalty of dismissal.
28. If this doctrine relied upon by learned Single Judge is to be adopted, it would amount to doing what is abhorred by the basic doctrine of principles of natural justice. A person or an authority who is bound to observe principles of natural justice, cannot deny doing it, saying that facts are obvious, eloquent, undeniable and that the delinquent has no defence. This course of action is sternly ::: Downloaded on - 09/06/2013 15:42:17 ::: 28 deprecated by a leading reported judgment of the Hon'ble Supreme Court in case of S.L. Kapoor Vs. Union of India [AIR 1981 SC 136].
It is a well settled law by foregoing precedent that refusal to observe principles of natural justice on the ground that the delinquent has no answer to offer is by itself an offence to the principles of natural justice.
29. Considering this aspect of the matter, present is not a case where dispensation of observance of principles of natural justice ig was either authorized by law or the Constitution of India, or by peculiar and extraordinary facts of the case.
30. Case at hand was a simple case of misconduct, liable to be governed by the law of land, i.e., observance of Standing Orders, issuing a notice of show cause and enquiry and action according to Standing Orders.
31. In the result, this Court has to decline to subscribe to the view of the learned Single Judge recorded in the Judgment rendered in Writ Petition No. 5088 of 2005, and take a contrary view.
32. In the midst of hearing, anticipating the question of back wages to be offered, to avoid further loss of time thereon, the workman had volunteered to forego back wages in ::: Downloaded on - 09/06/2013 15:42:17 ::: 29 the event he succeeds in getting reinstatement. This Pursis has reduced the pecuniary burden of the employer and this Court to exert to write on the point of back wages.
33. The result that inures is as follows:-
Letters Patent Appeals succeed and judgment and order passed by the learned Single Judge impugned has to be set aside, and the complainant is entitled to be reinstated by setting aside both the termination orders.
34. In the result, this Court directs as follows:-
[a] Letters Patent Appeal No. 36 of 2009 filed by the workman is allowed. Writ Petition No. 4669 of 2005 filed by workman is allowed.
[b] Letters Patent Appeal No.37 of 2009 filed by the workman is partly allowed, and employer's Writ Petition No. 5088 of 2005 is dismissed, except as clarified in Order Clause [d].
[c] Complaint [ULP] No. 514 of 1990 and Complaint [ULP] No.84 of 1997 of Labour Court, Chandrapur, are partly allowed.
[d] Complainant - workman is reinstated with continuity of service, however, without back wages. He shall be entitled to all consequential benefits, except getting actual payment of arrears of back wages.
[e] He be reinstated within 90 days from the date of judgment.::: Downloaded on - 09/06/2013 15:42:17 ::: 30
[f] This Court quantifies costs in both these appeals and Writ Petitions to a sum of Rs.10,000-00 [rupees ten thousand only] each, i.e., Rs.20,000-00 [rupees twenty thousand only] in total, which be paid within ninety days.
Rule accordingly.
JUDGE JUDGE
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