Bombay Cycle and Motor Agency Ltd. vs Auto Industrial Workers Union

R.M. Lodha, J.—The 10th Labour Court, Bombay on 30th September 1994 partly allowed the Reference (IDA) No. 419 of 1979 and directed the present petitioner to reinstate the workman viz., Shri S. D. Bhosale with continuity of service with effect from 15.12.1978 with back wages and by means of this writ petition, the Petitioner M/s. Bombay Cycle and Motor Agency Limited seeks to challenge this award/order dated 30th September 1988, passed by 10th Labour Court, Bombay. One of the contentions raised by Mr. Pawaskar, the learned counsel for the petitioner is that the Labour Court committed serious error in holding that the findings of the enquiry officer were held to be perverse, in part I award and the said findings were not set aside in the writ petition which came to be withdrawn and thus those findings remained intact and, therefore, the act of termination was illegal. According to Mr. Pawaskar, the Labour Court overlooked and ignored the basic fact that it was permissible for the petitioner to justify the action taken by leading evidence de novo which in fact was done by the petitioner. Thus, according to Mr. Pawaskar, the award (Part I) dated 17.12.1986 holding that enquiry was fair and proper but, the findings were not flowing from the evidence on record ought to have been seen in the light of the evidence led by the petitioner in support of it''s case that the workman was guilty of misconduct.

Since in my view the writ petition can be disposed of on the basis of aforesaid contention raised by the learned counsel for the petitioner and nobody has appeared to oppose the writ petition, I am not considering the other submissions raised by the learned counsel for the petitioner.

The Respondent No. 2 Shri Shripad Datta Bhosale was charge-sheeted by the petitioner for committing acts of misconduct under the Standing Orders. The charges related to theft, fraud or dishonesty connected in any manner whatsoever with the employer''s business or property under 25(d) of Standing Orders and commission of act subversive of discipline or good behaviour on the premises of the establishment under 25(1) of the Standing Orders. To the said charges, enquiry was instituted and after holding the enquiry on 22.11.1978 the enquiry officer submitted his report holding that the charges levelled against the employee as per charge-sheet dated 24.7.1978 stood proved. The petitioner on 14.12.1980 in accordance with the enquiry report dismissed the workman Respondent No. 2 from service on the ground that it would not be in the interest to retain him in service. An industrial dispute was raised by the workman through Auto Industrial Workers Union and the Respondent No. 1 herein. The industrial dispute referred to the Labour Court was whether dismissal of the workman Shri S. D. Bhosale was proper and legal and if not whether he was entitled to other reinstatement and continuity of service with full back wages. The Statement of Claim was filed by the union on behalf of the workman on 7.11.1979. The petitioner filed its written statement on 19.12.1979. On 17.12.1986, the then Presiding Officer of the Labour Court passed award (Part-I) holding that enquiry was fair and proper but, the findings were not flowing from the evidence on record and gave further opportunity to the petitioner employer to lead evidence in order to justify it''s action. Dissatisfied with the Part I award passed by the Labour Court, the petitioner filed writ petition which was registered as W.P. 761/87. However, the said writ petition was withdrawn by the Petitioner on 10.6.1992. Thereafter, the petitioner examined witnesses in support of it''s case that the workman had committed the misconduct for which he was charge-sheeted. The additional statement of claim was also filed by the workman on 28.3.1994. The workman examined himself on 1.9.1994 and the petitioner cross examined the workman. On 30th September, 1994 the award was passed by the Labour Court which has already been referred to by me above.

In the award the Labour Court has held "it is also pertinent to note that it is already decided by the award Part I that the findings of the enquiry officer are perverse and not flowing from the evidence on record and the writ filed by the company is withdrawn. When this findings are intact then the act of termination is also illegal".

It is thus apparent that the Labour Court was influenced by the fact that in Part-I award the findings of the enquiry officer have been held perverse and it has been held that the said findings do not flow from the evidence on record and that the writ petition filed by the petitioner against the Part I award was withdrawn and, therefore, the findings of Part I award remain intact and the termination was illegal. The Labour Court overlooked the most vital aspect of the matter that after the Part I award was passed by the Labour Court on 17.12.1986 wherein it was held that findings were not flowing from the evidence on record, the petitioner employer examined three witnesses in support of it''s case to establish before the Labour Court that the charges against the workman were proved and misconduct was duly established. The findings, therefore, recorded earlier that findings in the enquiry were perverse and not flowing from evidence on record lost its significance, and, the Labour Court was required to examine on the basis of the evidence led before it whether the employer petitioner was able to prove misconduct of the workman or not. The Labour Court instead of going into the merits of the evidence led by the employer petitioner before it in proof of the charges levelled against the workman was influenced by the fact that in Part I award it has already been held that the findings of the enquiry officer were perverse and not flowing from the evidence on record and writ petition filed by the petitioner against Part I award has been withdrawn. It was obligatory on the part of the Labour Court to assess, evaluate and examine the evidence led by the employer petitioner for proof of the charges levelled against the workman and then reach the finding whether the charges were proved or not. The award, therefore, passed by the Labour Court suffers form this patent infirmity and cannot be sustained.

Accordingly, writ petition is partly allowed. The award passed by the 10th Labour Court on 30th September, 1994 is quashed and set aside and matter is sent back to the said Court for hearing and deciding Reference (IDA) No. 419 of 1979 afresh and in accordance with law in the light of observations made hereinabove.

Since the matter is quite old and 10th Labour Court is only required to give fresh hearing and decide the matter afresh, it is expected of the concerned Labour Court that the reference would be decided on or before 31st December, 1997, and, no further extension would be sought.

Rule is made absolute in aforesaid terms. No costs. Certified copy expedited.