Executive Engineer, Maharashtra State Electricity, Dhule And Another v. Nimba Ramdas Bhadane

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO. 6606 OF 2014

1. Executive Engineer, Maharashtra State Electricity Distribution Company Ltd., Dhule.

2. Asstt. Engineer and Competent Authority, Maharashtra State Electricity Distribution Company Ltd., Nardana, Tq. Shindkheda, District Dhule.

..Petitioners

Versus

Nimba Ramdas Bhadane Age 54 years, Occ. Service, R/o Betawad, Tq. Shindkheda, Dist. Dhule.

..Respondent ...

Advocate for Petitioners : Shri Bajaj Anil S. Advocate for Respondent : Shri Patil Shrikant S. ...

CORAM : RAVINDRA V. GHUGE, J.

Dated: September 01, 2015 ...

ORAL JUDGMENT :- 1.

Heard.

2.

Rule.

3.

By consent, Rule is made returnable forthwith and the petition is taken up for final disposal.

4.

The petitioners are aggrieved by the order 21.3.2012 delivered by the Labour Court in Complaint (ULP) No. 31 of 2011 by which the Complaint was allowed and the judgment of the Industrial Court dated 9.5.2014, by which Revision (ULP) No. 1 of 2014 was dismissed. 5.

I am not required to advert to the submissions of the learned Advocates in the light of the order that I propose to pass in view of the ratio laid down by this Court in the case of Maharashtra State Cooperative Cotton Grovers Marketing Federation Ltd. & another Vs. Vasant Ambadas Deshpande [2014 MLJ 339 : 2014 I CLR 878] and Maharashtra State Roadways Transport Corporation Vs. Syed Saheblal Syed Nijam [2014 III CLR 547 = 2014 (4) Mah.L.J.687].

6.

The Labour Court had framed the following issues in the Complaint filed by the respondent / employee for challenging his termination by way of punishment, dated 29.5.2006 on grounds of 83 days unauthorized absenteeism:- Sr.

Issues Findings Whether the departmental enquiry conducted against the complainant is illegal, improper and against the principles of natural justice?

In the negative.

Whether the complainant prove that findings of the Enquiry Officer are perverse?

In the affirmative.

Whether the complainant prove that the punishment awarded by respondent is disproportionate?

In the affirmative.

Whether the complainant prove that the respondent has engaged in an unfair labour practice under item 1(a), (b), (d), (f) and (g) of Sch. IV of the MRTU and PULP Act, 1971?

In the affirmative.

Does the complainant prove that, he is entitled to the relief of reinstatement, continuity of service and full back-wages?

He is entitled to reinstatement and continuity of service only.

What order?

As per final order.

7.

It is trite law that the decision on the first two issues as above, constitute the Part I judgment of the Labour Court. Said issues are to be decided preemptorily. Extraneous evidence is not required to be considered while deciding the first two issues in the light of the ratio laid down by this Court in the case of Maharashtra State Co-operative Cotton Grovers Marketing Federation Ltd. (supra).

8.

The respondent gave up the challenge to the enquiry and as such, issue No.1 was answered in the negative. However, the findings of the enquiry officer were held to be perverse while delivering the impugned judgment without dealing with the said issue pre-emptorily which ought

to have been done by the Labour Court. The issue of de novo enquiry would crop up only after the Labour Court delivered its judgment on the second issue.

9.

The ratio as laid down by this Court in the case of Permanent Magnets Vs. Vinod Vishnu Wani and others [2002 (3) Mh.L.J. 413], is squarely applicable to this case. Paragraph Nos. 12 to 14 are as under:- "12. The contention sought to be raised by the respondent in this regard is that the prayer to frame issue is restricted to the validity and legality of the Domestic Enquiry and, therefore, right reserved by the petitioner to lead evidence was only in case the enquiry is held to be not in accordance with the principles of natural justice. It cannot be disputed that strict interpretation of the pleadings would disclose a prayer to frame issue in relation to validity and legality of the Domestic Enquiry. The pleadings do not disclose a specific prayer for framing of any other issue.

However, it is always to be remembered that framing of issue is primarily the function of the Court and it is not for the party to make prayer in that regard. The issues are to be framed based on the pleadings of the parties. Merely, because the party does not pray for framing of an issue, the Court is not absolved of its duty of framing the issues, which otherwise arise from the pleadings of the parties. This does not mean that the parties are forbidden from rendering necessary assistance to the Court in framing of issues. However, it is primarily the duty of the Court to frame issues, based on the pleadings. Viewed from this angle, mere absence of the prayer to frame issue cannot result in any prejudice to the petitioner. The Apex Court in Makhan Lal Bangal v.

ruled that an obligation is cast on the Court to read the plaint/ petition and written statement/ counter, if any, and then determine with the assistance of the learned counsel for the parties the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the Court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the Court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. 13.

The pleadings of the petitioner in the written statement quoted above, disclose that the petitioner had specifically stated that in case enquiry is held to be affected by breach of any principle of law either relating to natural justice or otherwise, the petitioner would lead evidence to substantiate charges of misconduct and to justify the final action against the complainants/respondents herein. The petitioner's statement therein is clear to the effect that it craved leave to substantiate the charges of misconduct and justify the final action against the complainants by leading evidence in case the enquiry is held to be in breach of any principles of law either relating to natural justice or otherwise.

It cannot be disputed that the pleadings in question do not expressly use the phraseology like "the employer reserve its right to lead evidence in case the Labour Court holds the findings arrived at by the Enquiry Officer to be perverse". But, at the same time, it has stated that in case the enquiry is held to be not in accordance with the law applicable thereto, and the same is held to be not in compliance with the principles of natural justice or otherwise, the employer would lead necessary evidence to prove the charges and for justification of punishment imposed.

Apex Court in Ram Sarup v. Bishun Narain reported in AIR 1987 SC 1242 no pedantic approach should be adopted to defeat justice on hair splitting technicalities and it is the duty of the Court to ascertain the substance of the pleadings. At this stage, it is also necessary to consider the contention of the learned Advocate for the petitioner that the question of opportunity of leading the evidence in support of justification of the charges of misconduct and action thereupon by the employer could arise only in case where the findings of the Enquiry Officer are held to be perverse and not otherwise. To put in exact words of the learned Advocate "the right to lead evidence to the employer is borne (read born) only on the finding of the Labour Court that the findings of the Enquiry Officer are perverse."

It cannot be disputed that once it is held that the Domestic Enquiry has been conducted in fair and proper manner and in accordance with the principles of natural justice, that by itself would not lead to conclusion that the findings arrived at by the Enquiry Officer were also perverse. Much to the contrary, the finding to that effect would be specifically required by the Labour Court. Once it is stated by the petitioner in the written statement that he craves leave to substantiate the charges of misconduct by leading proper evidence and to justify the final action, in case enquiry is to be held vitiated for non compliance of principles of natural justice or otherwise and considering the law laid down by the Apex Court regarding the reading and understanding of the pleadings.

It is to be held that the petitioner had conveyed its intention to the Labour Court to lead evidence in case the Labour court comes to the conclusion that the inquiry was vitiated either on account of non compliance of the procedure or for violating the principles of natural justice or the findings arrived at by the Enquiry Officer being held to be perverse.

pleadings do not disclose reservation of right of the employer to lead evidence, in case of findings of Enquiry Officer being held as perverse, cannot be accepted. (Emphasis supplied). 14.

Referring to the decision of the learned Single Judge in Chandrikaprasad's case, it was strenuously argued by the learned Advocate for the respondent that there was not even an attempt on the part of the petitioner in the course of argument to submit that the petitioner would lead evidence in support of the charges of misconduct, in case the Labour Court holds the findings of the Enquiry Officer to be perverse. Indeed, in Chandrikaprasad's case, the learned Single Judge while considering the point of failure on the part of the Labour Court to allow the employer to adduce evidence pursuant to the finding that the domestic enquiry was not fair and proper and the findings recorded by the Enquiry Officer were perverse.

It was observed that in the written statement filed by the employer, no plea was raised in the alternative that in case the enquiry held against the employee is not fair and proper or is held to be perverse, the employer be given an opportunity to prove the charges against the employee and even when issues were framed after the parties had tendered draft issues, the employer had never pressed that the issue regarding fairness of the enquiry or the correctness of the findings recorded by the Enquiry Officer should be tried as preliminary issue. Not only that when during the course of arguments no request was made that if the Court holds that enquiry against the employee was not fair and proper or the findings recorded by the Enquiry Officer were perverse, the employer should be given opportunity to lead evidence.

contention, during the course of hearing of revision application for the first time even in absence of any ground in memo of revision that Labour Court ought to have asked employer to lead evidence to prove the misconduct on merits before the Labour Court. According to the learned Advocate for the petitioner, the facts of the case in hand are similar to those of Chandrikaprasad's case inasmuch as, there was no request made by the petitioner in the course of arguments for allowing the petitioner to lead evidence in case the Labour Court holds that the findings of the Enquiry officer to be perverse nor, the issue in that regard was requested to be tried as preliminary issue.

It cannot be disputed that the petitioner could have certainly drawn attention of the Labour Court at the time of framing issues that the issue in relation to whether the findings of the Enquiry Officer to be perverse, ought to have been tried as preliminary issue. It is also a matter of record that on completion of the evidence led by the petitioner in answer to the evidence, led by the respondent, the petitioner had filed purshis closing its evidence. The impugned order also does not disclose any request having been made by the petitioner to the Labour Court in the course of arguments for reserving its right to lead evidence in support of the charges of misconduct and punishment imposed, in case the Labour Court holds the findings of the Enquiry Officer to be perverse.

However, as rightly submitted by the learned Advocate for the petitioner, in spite of these facts, the point which is required to be considered is whether the employer was afforded or not an opportunity to exercise his right to adduce evidence once the tribunal holds that the findings of the Enquiry Officer are perverse.

order and, thereafter, there was no opportunity made available to the petitioner to lead any evidence in support of the charges against the respondent in spite of the fact that the pleadings in that regard disclose the required alternative plea. Undisputedly, in Chandrikaprasad's case, there was no such plea raised in the written statement. Basically, therefore, the employer had not disclosed any willingness on its part to lead evidence in support of the charges and punishment imposed by the management in case the Labour Court comes to the conclusion that the findings arrived at by the Enquiry Officer were perverse.

Considering the law laid down by the Apex Court in Bharat Forge Company Limited's case and Karnataka State Road Transport Corporation's case, it being the matter of right of the employer on necessary alternative plea being made in the written statement, it was necessary for the Labour Court to afford an opportunity to the employer to lead evidence in support of the charges and punishment imposed once, the Labour Court has held that the findings arrived at by the Enquiry Officer were perverse. In this connection, it was sought to be contended by the learned Advocate for the respondent that there is no procedure prescribed whereby the parties are entitled to lead evidence in piecemeal on every issue. There can be no quarrel about the proposition canvassed by the learned Advocate for the respondent.

However, the fact remains that it was necessary for the Labour Court to frame issue as to whether the findings of the Enquiry Officer being perverse along with the issue regarding the Domestic Enquiry to be in accordance with the principles of natural justice or not. For the lapse on the part of the Labour Court, the parties cannot be blamed in that regard.

principles of natural justice or not. But, having not done so, apparently, the right of the employer to lead evidence in support of the charges and punishment imposed, once the Labour Court comes to the conclusion that the findings of the Enquiry Officer were perverse, cannot be denied to the employer, and more particularly, when denial of such right has resulted in prejudice to the petitioner."

10.

The Labour Court could not have decided issue No.2 along with the main complaint, since the enquiry officer's findings are held to be perverse and as such, the entire enquiry stood watered down. The law on De novo enquiry, as per the ratio laid down by the Apex Court (five judges) in the matter of Karnataka State Road Transport Corporation Vs. Laxmidevamma & another [2001 (II) CLR 640], was required to be followed.

11.

The above error committed by the Labour Court was totally lost sight of by the Industrial Court while delivering the impugned judgment dated 9.5.2014.

12.

In the result, this petition is partly allowed. The judgment of the Labour Court dated 21.3.2012 in Complaint (ULP) No. 31 of 2011 as well as the judgment of the Industrial Court dated 9.5.2014, delivered in Revision (ULP) No.1 of 2014 are quashed and set aside. The complaint is remitted back to the Labour Court for deciding issue No.2 afresh. Consequentially, Revision (ULP) No.1 of 2014 does not survive and would

stand disposed off.

13.

The Labour Court shall decide issue No.2 in the light of the ratio laid down by this Court in the case of Maharashtra State Co-operative Cotton Grovers Marketing Federation Ltd.(supra). In the event, the enquiry is set aside on the ground of perversity in the findings of the enquiry officer, the issue of de novo enquiry shall be dealt with by the Labour Court in the light of the ratio laid down by the Apex Court in the case of Karnataka State Road Transport Corporation Vs. Laxmidevamma (supra).

14.

Learned Advocates pray for a date for appearance before the Labour Court. By consent of the parties, the litigating sides shall appear before the Labour Court, Dhule on 21.9.2015. Formal notices need not, therefore, be issued to the parties. The litigating parties are at liberty to request the Labour Court for deciding the complaint expeditiously. 15.

Rule is made partly absolute in the aforesaid terms. ( RAVINDRA V. GHUGE, J. ) ...

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