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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO . 7849 OF 20 19
Indo Rama Synthetics (I) Ltd.
A-31, MIDC Industrial Area, Butibori, ...Petitioner
Org. Respondent
Nagpur, Through its Vice President
(Finance and Accounts)
// VERSUS //
Org. Complainant
1. Ashok Sahebrao Badiye,
R/o 103, Savitri Vihar, Somalwada,
Wardha Road, Nagpur. Occ- Nil.
2. Member, Industrial Court, Nagpur
Temple Road, Civil Lines, Nagpur –
440001.
3. Presiding Officer, Fourth Labour Court,
... Respondents
Temple Road, Civil Lines, Nagpur –
440001.
WITH
WRIT PETITION NO . 159 OF 20 22
Ashok S/o Sahebrao Badhiye, Aged about
47 years, Occ.Nil, R/o 103, Savitri Vihar, ...Petitioner
Somalwada, Wardha Road, Nagpur.
// VERSUS //
1. Indo Rama Synthetics (I) Ltd., A-31,
MIDC Industrial Area, Butibori Nagpur,
through its Vice President (Finance &
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Accounts).
2. Member, Industrial Court, Nagpur
Temple Road, Civil Lines, Nagpur –
440001.
3. Presiding Officer, 4th Labour Court,
... Respondents
Temple Road, Civil Lines, Nagpur –
440001.
In Writ Petition No.7849 of 2019
Shri R.B. Puranik, Advocate for Petitioner.
Shri G.N. Khanzode, Advocate for Respondent No.1.
Shri N.S. Rao, A.G.P. for Respondent Nos.2 and 3/State.
In Writ Petition No.159 of 2022
Shri G.N. Khanzode, Advocate for Petitioner.
Shri R.B. Puranik, Advocate for Respondent No.1.
Shri N.R. Rao, A.G.P. for Respondent Nos.2 and 3/State.
______________________________________________________________
CORAM : ANIL S. KILOR, J.
DATE OF RESERVING THE JUDGMENT : 2 8 /02/2024
DATE OF PRONOUNCING THE JUDGMENT : 30/05/2024
JUDGMENT :
1. Heard.
2.
Rule. Rule made returnable forthwith. Heard finally by
consent of the parties.
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3.
Since in both the writ petitions questions involved on facts
and law are similar, both the writ petitions are heard and decided
together.
4.
This petition takes exception to the order dated 05.02.2019
passed by the Industrial Court, upholding the order dated
07.08.2017 passed by the Labour Court, allowing the complainant
and thereby, directing the petitioner to reinstate the
complainant/respondent No.1 with continuity of service and back-
wages.
5. The brief facts of the present case are as under: (The parties
are referred to as per their status in Writ Petition No.7849 of 2019)
The respondent No.1 was appointed as ‘Store Helper’ with
the petitioner on 01.03.1999 and on the ground of serious
misconduct committed by the respondent No.1, he was served with
the charge-sheet and an enquiry was held. At the end of the
enquiry, the Enquiry Officer held that the charges levelled against
the respondent No.1 were not proved.
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6.
However, the petitioner disagreeing with the view of the
Enquiry Officer, dismissed the respondent No.1 from service.
7. Thereupon, the respondent No.1 preferred the complaint
before the Labour Court vide Complaint (ULP) No.148 of 2007,
which came to be allowed vide judgment and order dated
07.08.2017, directing the petitioner to reinstate the respondent
No.1 and to pay full back-wages.
8.
In the revision filed by the petitioner, questioning the
correctness of the judgment and order of the Labour Court, the
learned Industrial Court partly allowed the revision and thereby,
modified the order of back-wages by granting 50% back-wages
instead of full back-wages vide judgment and order dated
05.02.2019.
9.
The learned counsel for the petitioner submits that both the
Courts below have committed error in allowing the complaint and
directing the petitioner to reinstate the respondent No.1.
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10. The learned counsel for the petitioner submits that no
challenge was raised by the respondent No.1 to the fairness of the
enquiry and the findings of the Disciplinary Authority.
11.
It is submitted that the Disciplinary Authority, on arriving at
a conclusion to record disagreement with the findings recorded by
the Enquiry Officer, granted opportunity to the respondent No.1 to
submit his explanation and after considering such explanation, the
order of dismissal was issued. It is submitted that both the Courts
below discarded important facts and allowed the complaint. The
learned counsel for the petitioner, in support of his submission,
placed reliance on the judgments of the Hon’ble Supreme Court of
1
India in the cases of Panjab National Bank Vs. Kunj Behari Misra ,
2
Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane , State
3
of Haryana Vs. Rattan Singh , and the judgment of the Division
Bench of this Court in the case of Suryabhan Maruti Avhad Vs.
4
M/s. Mahindra and Mahindra Ltd., Mumbai .
1 (1998) 7 SCC 84
2 (2005) 3 SCC 254
3 (1977) 2 SCC 491
4 2011 AIR Bom.R 690
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12.
On the other hand, the learned counsel for the respondent
No.1 submits that no perversity has been committed by both the
Courts below in allowing the complaint and directing the petitioner
to reinstate the respondent No.1.
13. It is further submitted that the learned Industrial Court
committed error in modifying the order of back-wages. It is
submitted that though the respondent No.1 is entitled for full back-
wages, the learned Industrial Court has granted 50% back-wages.
Accordingly, he prays for quashing and setting aside the order of
the learned Industrial Court, to the extent of modifying the order of
back-wages.
14. In light of the rival submissions of the parties, I have perused
the record and the impugned judgments and orders.
15.
In the matter at hand, the charges levelled against the
respondent No.1 was of indulging in the pilferage of furnace oil.
On perusal of the charge-sheet, it reveals that the alleged incident
was occurred on 04.03.2000, on which day the respondent No.1
was on leave. Furthermore, in absence of any evidence about
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involvement of the respondent No.1 in the alleged pilferage of
furnace oil, the Enquiry Officer held in favour of the respondent
No.1 and recorded the findings that due to lack of evidence, charges
are not proved.
16.
Admittedly, the driver, on whose statement the said charges
were levelled against the respondent No.1, was not examined, but
the statement of driver Ajam Khan was referred by Mr. Bist during
enquiry proceeding, as such statement of Ajam Khan was recorded
in his presence.
17.
Accordingly, the learned counsel for the petitioner submits
that the evidence of Shri Bist recorded by the Enquiry Officer,
wherein he has referred to the statement of the driver is sufficient to
hold the respondent No.1 as guilty. However, I do not find favour
with the said submission as there is no other evidence produced in
support and corroboration of the statement of Ajam Khan, except a
reference made of it by Mr. Bist.
18.
I am of the opinion that even if the case of the petitioner is
accepted that there is no need to examine the driver, particularly
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when Mr. Bist was present while recording driver’s statement, the
petitioner ought to have produced other supporting evidence.
19.
In absence of such evidence and as the whole case is based on
driver’s statement and even punishment imposed is based on the
said statement, opportunity to cross-examination to driver is must
in this case.
20.
Thus, in absence of any cogent and sufficient evidence to
establish any of the charges levelled against the respondent No.1,
the impugned judgments and orders passed by the learned Labour
Court and learned Industrial Court, are just and proper.
21.
Having held so, the judgments cited by the learned counsel
for the petitioner in the cases of State of Haryana (supra),
Divisional Controller, KSRTC (NWKRTC) (supra) and Suryabhan
Maruti Avhad (supra) are of no assistance to the petitioner in the
present matter, they are distinguishable on facts and law.
22.
Moving to the another point, the Hon’ble Supreme Court of
India, in the case of Panjab National Bank (supra), the Hon’ble
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Supreme Court of India has held that, although it is true that the
disciplinary authority is supposed to arrive at its own findings on
the basis of the evidence recorded in the inquiry, it is also equally
true that the disciplinary authority takes into consideration the
findings recorded by the Enquiry Officer along with the evidence
on record. Further it is held that when the inquiry report is in
favour of the delinquent but the disciplinary authority proposes to
differ with such conclusions then that authority which is deciding
against the delinquent must give him an opportunity of being heard
for otherwise he would be condemned unheard.
23.
As I have already held that the evidence produced by the
petitioner before the Enquiry Officer is not sufficient to hold that
the guilt is proved against the respondent No.1, the finding
recorded by the Disciplinary Authority, disagreeing with the
finding of the Enquiry Officer, is without any evidence and hence,
not sustainable in the eyes of law.
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24.
In the circumstances, whether the second show cause notice
was issued or not to the respondent No.1 before dismissal would
not change the fate of the present case.
25. In the circumstances, I do not find any error committed by
the both the Courts below in directing the petitioner to reinstate
the respondent No.1 in service.
26. As far as the challenge raised in the Writ Petition No.159 of
2022 to the judgment and order of the Industrial Court to the
extent of modification of the order of back-wages, is concerned, the
learned Industrial Court while modifying the order of back-wages
has recorded the following observations:
“23. This order of learned Labour Court is certainly by
ignoring evidence of complainant himself. Complainant in his
evidence on affidavit, Exh.49, in paragraph No.6 has made
statement that since the date of termination he is unemployed.
He searched for employment but he could not get. Therefore,
he is doing whatever work he gets but the same is not available
for whole month. From this statement it clearly shows that
complainant is doing some work as and when available but he
has not given details of it. If the complainant admits that he is
doing some work and earning. the Court ought to have
considered this evidence while deciding quantum of back
wages. Therefore, the order of granting full back wages is
perverse due to non-considering evidence of complainant. The
Court has also not considered facts and circumstances of the
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case that the dismissal of complainant is dated 20-04-2007.
Complaint came to be decided on 07-08-2017 that means after
10 years period. Complainant is out of employment during said
period. This Court is, therefore, of the view that learned Labour
Court ought to have granted 50% back wages instead of 100%.
Accordingly, I come to the conclusion that impugned judgment
and order of learned Labour Court does not suffer from
perversity to the extent of quashing and setting aside dismissal
order, direction to reinstate complainant with continuity in
service. But it suffers from perversity by directing to pay full
back wages. Modification in impugned order to that extent is
necessary. I accordingly partly answered Point No.1 in
affirmative.”
27.
Considering the findings recorded by the learned Industrial
Court, I do not find any error committed by the learned Industrial
Court. Accordingly, I pass the following order:
(i) The Writ Petition No.159 of 2022 is dismissed.
(ii) The Writ Petition No.7849 of 2019 is dismissed.
Rule is discharged. No costs.
[ANIL S. KILOR, J.]
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