Bombay High Court
Maharashtra State Road Transport vs Shri Sheikh Rahman Sheikh Karim on 9 September, 2009
Author: S.R.Dongaonkar
Bench: S.R.Dongaonkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH ; NAGPUR.
WRIT PETITION NO. 1356 OF 1999
PETITIONER: 1. Maharashtra State Road Transport
Corporation, through its Divisional
Controller, Bhandara.
ig VERSUS
RESPONDENTS : 1. Shri Sheikh Rahman Sheikh Karim,
aged about 42 years, resident of
Neaqr Octroi Naka, Bhandara Road,
Neal Lal Bahadur Shastri Junior
College, Bhandara, Tahsil and
District Bhandara.
2. Labour Court, Bhandara.
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Shri A.S.Mehadia, Advocate, for the Petitioner,
Shri J.B.Kasat, Advocate, for respondent No.1
None for Respondent No. 2 being a formal party.
CORAM : S.R.DONGAONKAR, J
DATE : 9th SEPTEMBER, 2009
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2
ORAL JUDGMENT
1. Heard Shri A.S.Mehadia, Advocate, for the petitioner and Shri J.B.Kasat, Advocate, for Respondent No.1. None for respondent No.2 being formal party.
2. The subject matter of this petition under Articles 226 & 227 of the Constitution of India relates to the dismissal of respondent no.1 by the petitioner.
3. The respondent no.1 was working as Driver with the petitioner Corporation to drive the S.T. Passenger Buses. On 1.12.1981, he was on duty on Bhandara to Gondia route. At about 1 O'clock in the night between 1.12.1981 and 2.12.1981, it is alleged, his bus gave dash to a truck and there was quarrel.
10-12 persons chased the Bus driven by Respondent No.1 till Gondia Depot and he was beaten and then he ::: Downloaded on - 09/06/2013 14:59:40 ::: 3 was taken to Police Station. It is alleged that intervention of Shri Khapre who was on duty and some technical staff did not materialize. Thereafter, Assistant Security Officer obtained information from Police Officer, Gondia. He came to know about the incident and also the fact that during medical examination of Respondent No.1 he was found to be under the influence of liquor i.e. he was driving the said bus under the influence of liquor. He had head injury which was bandaged by the Medical Officer. Thereafter, there was some strike etc., and later on he was allowed to resume his work, so also the other employees resumed the work. According to the petitioner, the police record and medical certificate in respect of respondent no.1 reveal that when he was on the duty of driving the bus, he was under the influence of liquor and therefore, the accident had occurred. Later on, inquiry was conducted by issuing charge sheet to the respondent no.1. After inquiry, the ::: Downloaded on - 09/06/2013 14:59:40 ::: 4 charge relevant was held to be proved and he was dismissed in pursuance to the order dated 11.6.1986.
4. This order of dismissal was challenged by the respondent no.1 by filing ULP Complaint No. 104/1986 before the Labour Court at Bhandara. According to him, there was a slight dash and there was minor damage to the bus. He also contended that the enquiry held against him was not proper as he was not supplied with the documents and he was not allowed to conduct effective cross examination. He contended that the order of dismissal was also not passed by the person who was authorized to pass the same. The complaint was opposed by the petitioner. However, the learned Labour Judge held against the petitioner and delivered final judgment on 28.1.1992. The relevant order reads thus-
::: Downloaded on - 09/06/2013 14:59:40 ::: 5 ORDER 1/- The complaint u/s 28 of the MRTU & PULP Act, 1971, is hereby
allowed, declaring the dismissal dated 11.6.1986 illegal, amounts to unfair labour practices as enumerated at Item No. 1 of Schedule IV of the said Act.
2/- The respondents are hereby desisted from the said activity and directed to reinstate the complainant with continuity in service and with back wages of 50% (fifty percent) of wages he was getting at the time of termination within one month from the date of the order.
He was directed to be reinstated along with 50% back wages.
5. The petitioner then carried this matter before the Revisional Court i.e. Industrial Court, Nagpur in Revision ULP NO. 211/1992. The Industrial Court dismissed the revision petition by order dated 16th November, 1998.
::: Downloaded on - 09/06/2013 14:59:40 ::: 66. The main reason on which the dismissal was set aside was that, in the inquiry, it is not established that the respondent no.1 was found to have consumed liquor or driving the bus under the influence of liquor. It was found by the learned Labour Judge that opportunity to put up his defence was also not granted to the respondent no.1.
According to the learned Labour Judge further, the act of consuming liquor or intoxication is a misconduct under Item 45 for which there was no evidence. It is found by her that there is no evidence as to when the complainant (respondent no.1) was medically examined, what was the period of medical examination, what offending act he had committed.
According to her, the evidence of Shri Trivedi that was led in that inquiry proceedings was not proper & sufficient to establish the misconduct of the ::: Downloaded on - 09/06/2013 14:59:40 ::: 7 respondent. She has further found that the evidence before the Enquiry Officer was not conclusive proof of evidence to prove the misconduct of the respondent under Item 45, which is to the effect of "being under influence of liquor while on duty." For rest of the items for which the Departmental Enquiry was held i.e. item No.2, Schedule A of D.A.P. Rules of the Petitioner Corporation, so also Item No. 26 of Schedule A of D.A.P Rules, the evidence was not led at all, as held by the learned Labour judge.
Therefore, the learned Labour Judge had passed the order extracted above, against which the revision application of the petitioner was dismissed.
7. When this matter was heard by this Court, at the time of admission, interim relief was granted in terms of prayer clause (3) i.e. stay was granted to the effect and operation of the judgment impugned.
::: Downloaded on - 09/06/2013 14:59:40 ::: 88. By the synopsis, learned counsel for the petitioner had submitted that despite stay order of this Court, the respondent was taken into service and he was reinstated. But still the respondent committed similar misconduct by driving passenger bus under the influence of liquor and hence he was charge-sheeted. Later on his services were terminated after holding departmental enquiry; w.e.f.
5.9.1995. The matter in that respect is now concluded.
9. In this behalf, it is submitted that the respondent had challenged the second dismissal by filing complaint before the Labour Court, which was dismissed and thereafter the complainant i.e. the present respondent no.1 did not challenge the same further, meaning thereby that the said dismissal at ::: Downloaded on - 09/06/2013 14:59:40 ::: 9 the second time was confirmed and it is in force.
10. As such, the petition involves the question of payment of 50% back-wages for the period from 18.6.86 i.e. the order of dismissal, to 25.08.1992 when he was reinstated; only.
11. Learned counsel for the petitioner submitted that the duty cast upon the present respondent was to drive the passenger bus with due caution and in good state. Therefore, being the driver of the public vehicle, in no case he could be permitted to drive the bus under the influence of liquor, which obviously endanger the life of passengers. According to him, the respondent was required to plead and lead evidence to demonstrate that he was not gainfully employed during the period from his dismissal till his reinstatement. He has to ::: Downloaded on - 09/06/2013 14:59:40 ::: 10 plead and prove this aspect. He has mainly relied on the judgment of the Apex Court reported in (2005) 5 SCC 124; Allahabad Jal Sansthan vs. Daya Shankar Rai and another, wherein the such failure to plead and prove was taken into consideration for declining the order of back-wages.
He has also referred to some other authorities, which I would consider at the appropriate place.
Therefore, his contention is that respondent is not entitled for reinstatement as well as back wages, even 50% back wages so impugned orders are liable to be quashed and set aside.
12. Learned counsel for Respondent No.1 has submitted that the petitioner had held the enquiry, but did not lead the proper & legally acceptable evidence to show that respondent no.1 had driven the bus with passengers under the influence of ::: Downloaded on - 09/06/2013 14:59:40 ::: 11 liquor. Therefore, the findings recorded by the Enquiry Officer which culminated in the dismissal of the respondent, were not at all sustainable and therefore, he should have been reinstated with full back-wages. He has pressed into service the observations of the Apex Court in the decision in (2009) 2 SCC 570; Roop Singh Negi vs. Punjab National Bank and others, wherein it has been observed as to how the contentions/charges in the D.E. are to be proved, what type of proof is necessary and what would be the result if the allegations in the charge sheet are not properly proved. According to him, in the present case, in the enquiry which was held against the respondent, three was no legally admissible evidence i.e. the evidence of the only witness Shri Trivedi was the hear-say evidence, the concerned medical certificate was not at all on record and therefore, the enquiry ::: Downloaded on - 09/06/2013 14:59:40 ::: 12 gets vitiated and the learned Labour Judge should have ordered reinstatement with full back-wages.
Therefore, according to him, in the present case, the respondent would be entitled for full back-wages, though he had not preferred any writ petition to challenge the grant of 50% back-wages. As such, according to him, the petition needs to be dismissed.
13. At this stage it is necessary to note the observations of the Apex Court in the decision cited by the learned counsel for the respondent i.e. (2009) 2 SCC 570; Roop Singh Negi vs. Punjab National Bank and others, wherein, as regards the manner of proving the facts in the disciplinary enquiry, the following are the observations;
"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quashi-judicial function.::: Downloaded on - 09/06/2013 14:59:40 ::: 13
The charged levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses ig merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved.
Some evidence should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect ::: Downloaded on - 09/06/2013 14:59:40 ::: 14 evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
.........
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported ::: Downloaded on - 09/06/2013 14:59:40 ::: 15 by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be substitute for legal proof.
14. It is, therefore, clear that now it is well settled that in the departmental proceedings, the enquiry officer performs a quasi judicial function, the charges levelled against the delinquent officer are to be "proved" by reliable and admissible evidence. The enquiry officer has a duty to arrive at a finding upon taking into consideration the material brought on record by the parties.
15. Learned counsel for the petitioner has contended that the departmental enquiry does not require the proof beyond reasonable doubt as in the criminal cases and the authority conducting Departmental Enquiry has to be satisfied as to whether the relevant misconduct is proved or not ::: Downloaded on - 09/06/2013 14:59:40 ::: 16 and in the present case, the concerned Enquiry Officer and the Disciplinary Authority were satisfied that the misconduct committed by the respondent was serious enough to attract the punishment of this nature as he was found drunk on duty i.e. while driving the passenger bus.
16. On perusal of the enquiry papers, it appears that only evidence of one Shri N.D. Trivedi, who was Assistant Security Officer, was led. His evidence reads thus-
"On 1.12.1981, at about 1.00 O'clock in the night, after Shri Sheikh Raheman Sheikh Karim, theDriver, Bhandara Depot reached Gondiya by taking the bus bearing registration No. M.T.D. 8759, the bus dashed against the truck bearing registration No. M.T.G. 8335 near Manohar Square as a rsult of which altercation took place with the truck driver and then Shri Raheman went to Gondiya Depot by taking the bus. Some ::: Downloaded on - 09/06/2013 14:59:40 ::: 17 persons from the truck went to the depot while chasing Shri Raheman, caught hold of Shri Raheman in the premises of the depot and beat him and took him to police station. I got this information at 6.30 O'clock in the morning. Hence, I immediately went to the depot and inquired into the matter. Then, I contacted the police officer and gathered information about the action taken by the police in the night. At about 9.00 O'clock, on the call of the leader of labour union, the employees working in the depot left the work and came outside. It was their demand that the persons who beat should be arrested.
Thereupon, I advised the employees and their leader that it would be illegal to proceed on strike without giving time to police and administration for taking action. Hence, at 9.30 O'clock, he asked the employees to return to work.
Thereafter, I went to the police station by taking the leader of employees and Shri Raheman. The police officer showed us the documents prepared by him in the said matter. Asper the said documents, the medical examination of Shri Raheman was conducted in the night and in the certificate given by the medical Officer to the police in that regard, it was mentioned that Shri Raheman had consumed liquor. When the leader of employees came to know ::: Downloaded on - 09/06/2013 14:59:40 ::: 18 about the above, facts he retracted from the move of proceeding on strike.
I obtained the copy of the medical certificate from the police station and submitted the report bearing No.33, dated 12.12.1982."
[Translation]
17. According to the learned counsel for the petitioner, this witness was not cross examined therefore, it was rightly relied upon by the enquiry officer for coming to the conclusion of the proof of misconduct. On careful perusal of the above evidence, it is evident that he was not an eye witness to the actual incident. Enquiry Officer has relied on the police papers for coming to the finding that present respondent was found in the drunken condition on the basis of medical certificate issued to the police authority. Neither medical officer nor any police officer was examined on behalf of the management petitioner, said certificate is also not seen in the record of the enquiry papers. It would be ::: Downloaded on - 09/06/2013 14:59:40 ::: 19 seen that the exparte proceedings were held inasmuch as respondent no.1 had not taken active part in the said proceeding. However, his statement in question and answers form appears to have been recorded. He has admitted about the driving of the bus, but he has denied negligent driving of bus, under the intoxicated condition, the statement made before the police by him, was also shown to him, upon which he admitted signature on the said document. But it also shows that he had denied the material allegations. These question answers between enquiry officer and the respondent no.1 are forming part of the enquiry, though they are not forming part of this petition. Thus the position is apparent that the respondent no.1 had denied all the material allegations made which were sought to be proved by the petitioner department. In this view of the matter, it was duty of the petitioner ::: Downloaded on - 09/06/2013 14:59:40 ::: 20 department to lead proper and clinching evidence to substantiate the allegations made against the respondent. Examination of some security officer;
who is not an eye witness to the incident, can not be said to be sufficient though he has based his say on the basis of some medical certificate, issued by the medical officer, to the police authorities regarding respondent.
Unless that certificate is proved, in view of (2009) 2 SCC 570; Roop Singh Negi vs. Punjab National Bank and others, it can not be held that the allegations against the respondent no.1 during the departmental proceedings were properly proved. Why medical officer, concerned police officers, and other eye witnesses to the alleged causing of accident under intoxication i.e. passenger, conductor etc were not examined, is not known. But as they have not been examined, the evidence of Shri Trivedi. The Assistant Security ::: Downloaded on - 09/06/2013 14:59:40 ::: 21 Officer, cannot be said to be sufficient to substantiate the alleged misconduct of respondent no.1. Petitioner department owed duty to lead all evidence that was necessary as the charges levelled against respondent no.1 Driver were serious and conduct leading to the danger to the public at large which its concerned officers failed to perform.
18. Though the strict rules of evidence may not be applicable to the departmental proceeding, there has to be some concrete material and proof of facts in view of the decision of the Apex Court stated supra. As that has not been done it is not possible to hold that the view taken by learned Labour Judge as well as Industrial Court, is incorrect. As such, it appears that the respondent no.1 was rightly held to be entitled for reinstatement. As now respondent no.
1 is away from the service, after his second ::: Downloaded on - 09/06/2013 14:59:40 ::: 22 dismissal, for the similar alleged misconduct, and he has not challenged the same, he would not be entitled for reinstatement. More so because of his physical condition. As it was informed by learned counsel for respondent. as rightly pointed out by the learned counsel for petitioner and respondent the question is only regarding order of back wages.
19. Learned Labour Judge and as Industrial Court has granted back wages of 50%. In view of the judgment of the apex Court (2009) 2 SCC 570;
Roop Singh Negi vs. Punjab National Bank and others, learned counsel for the respondent has claimed 100% back wages, but it has to be noted that there is no petition on his behalf; for the same.
20. In view of the judgment of this court in 2000 (86) FLR 187 Divisional Controller ::: Downloaded on - 09/06/2013 14:59:40 ::: 23 Maharashtra State Road Transport Corporation, Bombay ..vs.. S.N. Ghorpade, and 2004 (102) FLR 191 Sudarshan Steel Mfg.Co. Mumbai ..vs.. Mumbai Labour Union and another, it is clear that the driving of the bus in a drunken condition is a serious misconduct and it calls for no penalty other than dismissal. In view of judgment of this court in 2004 (102) FLR 191 Sudarshan Steel Mfg.Co.
Mumbai ..vs.. Mumbai Labour Union and another, the subsequent similar mis-conduct can also be taken into consideration. Here admittedly respondent is dismissed for such misconduct in the year 1995. The respondent had challenged the same before the Labour Court, however, the said complaint was dismissed and the complainant i.e. respondent no.1 did not challenge the same further.
Therefore, that dismissal is confirmed and has become final. In this view of the matter, therefore, I ::: Downloaded on - 09/06/2013 14:59:40 ::: 24 find that respondent no.1 would not be entitled for 50% as granted by the learned Trial Judge. Even otherwise, the respondent no.1 has failed to make out a case of his non employment after his dismissal. There is no contention or pleading, or evidence to show that he was not gainfully employed after his dismissal at the first instance.
21. In this regard, the observation of the Apex Court in (2005) 5 SCC 124 Allahabad Jal Sansthan ..vs.. Daya Shankar Rai and another, need to be noted.
22. However, taking all facts and circumstances of the case in consideration, particularly the view of the Apex Court in (2009) 2 SCC 570; Roop Singh Negi vs. Punjab National Bank and others, token back wages will have to be granted as I have found ::: Downloaded on - 09/06/2013 14:59:40 ::: 25 that the departmental enquiry was not properly held, nor the finding therein were properly arrived at; on the basis of some concrete evidence. I quantify the back wages to the extent of 25% only.
23. As such this petition is partly allowed. The order relating to the reinstatement of respondent no.1 is hereby quashed and set aside. The back wages of 50% are reduced to 25%. The same would be paid till his reinstatement from the date of his alleged dismissal in the year 1992. The petition is thus succeeds in above terms. No order as to costs.
JUDGE Rvjalit ::: Downloaded on - 09/06/2013 14:59:40 :::