Bombay High Court
Cock Brand Sinnar Bidis Ltd, Nasik vs Shakuntalabai Dashrath Khandare on 9 September, 1991
Equivalent citations: (1992)IILLJ420BOM
JUDGMENT
1. This writ petition impugns an order of the appellate authority-under the Bidi and Cigar Workers (Conditions of Employment) Act 1966, Nasik, made in Appeal No. 1 of 1979 under Section 31(2)(a) of the Bidi and Cigar Workers (Conditions of Employment) Act, 1966 (hereinafter referred to as the Act).
2. The respondent was employed in the service of the petitioner, which owns an establishment manufacturing Bidis. The respondent filed an appeal under Section 31(2)(a) of the Act before the appellate authority at Nasik alleging, inter alia, that she was employed as a Tarai Kamgar (Bidi Checker) in the Sinnar Branch of the petitioner's establishment and that she was serving as such continuously for four years, till she was illegally dismissed on April 4, 1979. She also claimed that she was paid wages of Rs. 120/- per month. It was the case of respondent before the appellate authority that on March 8, 1979 one Jagannath Ramakant Chandak, Managing Director of the petitioner, told her not to report for duties for two to three days until receipt of a letter from him calling upon her to report for work. Accordingly, the respondent did not report for work with effect from March 9, 1979 and awaited a letter from the employer. Nothing was heard from the employer till March 24, 1979, on which date she received a letter by registered post which alleged falsely against her that she was selling "Bhel" to co-workers for money inside the factory and had also remained absent from March 9, 1979. She was also thereby directed to attend an enquiry on March 30, 1979. It was her case that on March 30, 1979, she went to the office of the petitioner and orally stated that she had never intentionally remained absent and had on the contrary been directed to remain away from work till called upon to report for work. She being illiterate could not give the statement in writing and requested the petitioner to allow her to resume her duties. The said Chandak called upon her to do the work of Bidi worker instead of Bidi sorter (Taraiwala) which she rightly refused and hence she has been illegally dismissed from service by a letter dated April 4, 1979. She was sent certain amounts by the employer, by Demand Draft, which she accepted without prejudice to her right to challenge the dismissal order. She claimed that the order of dismissal was illegal and in violation of the principles of natural justice and sought the relief of reinstatement with fill back wages.
3. The petitioner contested the appeal of the respondent on several grounds. First, it was contended that the appeal was time better as it was not filed within thirty days from the date of dismissal. On merits, it was contended that the respondent used to frequently remain absent without giving prior notice resulting in dislocation of the work of the establishment; that despite several warnings, there had been no improvement in her behavior. It was also alleged that she was carrying on the business of selling "Bhel" packets in the factory for money which was improper and contrary to the factory's discipline. Finally, it was alleged that the respondent had remained absent from March 9, 1979, for which she had been served with the chargesheet dated March 24, 1979; that she did not resume her work even thereafter and an enquiry was made with regard to the charges and during the enquiry she gave a reply in writing on April 2, 1079 in which she admitted the guilt. In view of this, she was removed from her job. The petitioner denied that the action of dismissing the respondent from service was illegal or contrary to the principles of natural justice as contended by the respondent.
4. The appellate authority over-ruled the connection with regard to the limitation by taken the view that the first document by which the respondent had been informed that she had been removed from service was the letter dated April 16, 1979 which was received by her only on April 16, 1979. The appeal having been filed on April 4, 1979, he held that it was within the period of limitation prescribed under the Act. On merits, the appellate authority took the view that no proper enquiry had been conducted into the two charges levelled against the respondent and that the so-called confessional statement could hardly be relied upon inasmuch as the respondent was an illiterate workman and the said statement had been admittedly written by one Jagannath Rambhau Kshatriya, an employee of petitioner. The appellate authority, therefore, held that the order of dismissal passed against the respondent was bad in law, illegal and improper as it was in contravention if the principles of natural justice. He, therefor, set aside the said order and directed reinstatement with full back wages and continuity of service, the back wages to be paid having regard to the revision of minimum rates of wages, if any, made by the Government from time to time. It is this order which has been impugned in the present petition.
5. Mr. Rele, learned counsel for the petitioner, contended that the appellate authority has failed to apply its mind to the evidence on record. He urged that having regard to the admission made by the respondent during her evidence before the appellate authority, it would be amply clear that the misconduct had been admitted by her and therefore holding an enquiry would have been a superfluous exercise.
6. Mr. Rele vehemently contended that the past record of his employee was extremely bad in that she had been repeatedly warned for remaining absent. He invited my attention to the evidence recorded before the appellate authority where the respondent admitted that she had been served with ten letters previously, the copies of which were read out to her and produced in evidence by the petitioner. This, however, would account for her past conduct and not for the presently alleged misconduct for which she was charge-sheeted and dismissed. The past conduct would be a relevant factor for determining the quantum of punishment, provided the present misconduct is established.
7. With a view to satisfy me that the present misconduct, for which the respondent was dismissed, has been established, I was taken through the charge-sheet dated March 24, 1979. Apart from irrelevant material contained therein, the two charges levelled against the respondent were - (a) that she had sold 'Bhel' within the premises of the factory to the co-workers without permission and (b) that she had remained absent from March 9, 1979. I invited Mr. Rele to satisfy me that, apart from the so-called confessional statement recorded on April 2, 1979, there was any material on the record of the appellate authority, or before this Court from which he could satisfy me that the respondent was guilty of either or both of the misconducts alleged against her. He invited my attention to the evidence of the respondent before the appellate authority. Far from admitting the charge, the respondent categorically denied the charge and stated that she had not remained absent on her own accord from March 9, 1979. In my view, the appellate authority rightly emphasised the fact that the respondent was an illiterate workman and in a manner like this, where documents could have been produced and proper evidence recorded in a domestic enquiry, the petitioner cannot short circuit the procedure by purporting to rely on the confessional statement of such an illiterate worker. I agree with this reasoning of the appellate authority. Apart from this, the respondent, when confronted with her confessional statement, during her evidence before the appellate authority, categorically denied that she had been correctly reduced to writing as she had stated. Specific portions were put to her and she denied that she ever made such statements so much for the confessional statement, there was no enquiry held, no independent evidence led before the appellate authority, on either of the charge. Interestingly, the evidence of Jagannath Rambhau Kshatriya, the witness of the petitioner employer, categorically shows that the charge of selling "Bhel" in the premises of the factory is the main charge and absence and irregular in attendance, was secondary. Even this evidence does not bring home the charges, as it does not prove the charges levelled against her. In this state of evidence, if the appellate authority, with jurisdiction to assess the evidence before it which is the proper forum for recording of fact, has found that the order of passed against the respondent was illegal and contrary to the principles of natural justice there is no reason or justification for this Court to interfere with the said finding of fact in exercise of its power under Article 226 and/or 227 of the Constitution of India. On the contrary, I was taken through the evidence and the findings to find out if there was any perversity in findings and, I am afraid, there is none. The result is that the order of the Appellate Authority shall have to be upheld and the petition must fail.
8. In the premises, the petition fails and is hereby dismissed. Rule is discharged without order as to costs.