Maharashtra State Co-operative Marketing Federation Ltd. vs Ashok

. Heard. Rule. Rule made returnable forthwith. With consent of both the parties, matter is taken up for final disposal at the stage of admission.

In the present Petition, challenge is to the Judgment and Order dated 7/8/2019 passed by the Member, Industrial Court, Yavatmal in Revision (ULP) No. 11/2018.

The facts of the case in brief are as under :

The Petitioner/Federation has appointed the Respondent as a Clerk on 16/12/1978. The Respondent was working under the District Marketing Officer, Yavatmal. He was promoted as Godown Keeper on 30/10/1999 and was having responsibility to look after the incoming and outgoing goods of the Federation. It was also his responsibility to maintain various bills, receipts, stock register etc. He was also required to take instructions and work under the directions of District Marketing Officer, Yavatmal.

The Respondent, on 9/3/2004, was chargesheeted by the Petitioner/Federation on the ground that during the tenure as a Godown Keeper, he has not properly maintained the record of incoming and outgoing goods in the Federation. He has released the goods on credit, which resulted into increase the outstanding amount of Federation upto Rs.6.93 Crores at the end of August-2003, which was required to be recovered from various dealers, to whom fertilizers were supplied by the Respondent. It was further alleged that the policy framed by the Federation regarding sale of fertilizers was also not followed by him. He has caused financial loss to the Federation and like other charges were levelled against the Respondent in the matter.

The Petitioner/Federation, after issuing chargesheet to the Petitioner on 9/3/2004 called his explanation. On 15/4/2004 the Respondent has tendered his explanation to the said chargesheet. The Federation found that the explanation tendered by the Respondent was not satisfactory, and therefore, they have appointed an Enquiry Officer to conduct the enquiry against Respondent on 11/6/2004.

The Petitioner states that the enquiry was conducted by adhering to the principles of natural justice, by providing all possible opportunities to the Respondent/Employee. Accordingly, the enquiry was concluded by submitting the report by the Enquiry Officer dated 27/1/2005.

The Petitioner/Federation, after receipt of the enquiry report by the Enquiry Officer, issued show cause notice to the Respondent on 1/4/2005. The same was replied by the Respondent on 16/4/2005. On receipt of reply, the Petitioner/Federation has decided to dismiss the services of the Respondent, and accordingly, issued order of dismissal on 20/5/2005.

The Respondent, against the order of dismissal, filed Complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, ‘MRTU & PULP Act’) before the Labour Court on 24/10/2005. According to the Respondent, enquiry was not conducted in a fair and proper manner, and therefore, same is illegal. He has further raised grievance that the findings recorded by the Enquiry Officer are perverse in nature, and therefore, the entire enquiry is vitiated.

The Petitioner/Federation has contested the proceeding before the Labour Court by filing written statement. The Petitioner/Federation has defended the enquiry report by stating that the same was prepared by conducting fair and proper enquiry. It is further stated that the findings recorded by the Enquiry Officer are in consonance with the evidence which was made available before the Enquiry Officer.

In this background, the Labour Court has framed the preliminary issues, ‘Whether the enquiry was conducted by the Enquiry Officer by following principles of natural justice or not?’ The Labour Court, by order dated 28/5/2007 has held that the enquiry was conducted in a fair and proper manner by granting opportunities of hearing to the Respondent/Employee.

The learned Labour Court has further framed the issue, ‘Whether the Respondent/Complainant proves that the findings recorded by the Enquiry Officer are perverse?’. On that issue, hearing was conducted and after considering the submission of rival parties, by order dated 15/1/2018, the Labour Court has held that the findings recorded by the Enquiry Officer are found to be perverse in nature.

It is pertinent to note that once the Labour Court has recorded that the findings recorded by the Enquiry Officer are perverse, the Petitioner/Federation was at liberty and has a right to lead evidence before the Labour Court and establish their case on the available evidence. But, it seems that such right was not exercised by the Petitioner/Federation in the matter.

In the abovesaid background, the learned Labour Court, by the Judgment dated 4/5/2018 finally decided the proceeding on the basis of evidence available on record. The Labour Court has specifically observed in the Judgment that after adjudication of the preliminary issue as to the perversity of finding, opportunity was given to the Petitioner/Federation to prove the misconduct of the Respondent/Employee, by conducting de novo enquiry. For that purpose, the Complaint was adjourned time to time, but the Petitioner/Federation, by filing pursis (Exhibit-65) informed to the Court that they are not desirous to adduce any evidence in the matter. Therefore, considering the settled principles of law, the learned Labour Court proceeded to decide the matter and thereby declared that the Petitioner/Federation has engaged in unfair labour practice by awarding punishment of dismissal against the Respondent/Employee by order dated 20/5/2005 and the said order was accordingly set aside. The Petitioner/Federation was directed to pay full back wages to the Respondent/Employee from the date of dismissal i.e. 20/5/2005 till the date of his superannuation in the month of March-2012. The Petitioner was further directed to pay interest @ 12% till actual realization of the amount, if the amount of full back wages is not paid within two months.

The Petitioner/Federation has then preferred the statutory Revision before the Industrial Court, Yavatmal vide Revision (ULP) No. 11/2018. Before the Industrial Court, challenge was only to the order of Labour Court dated 4/5/2018. In the entire Revision, there is no whisper about the challenge of finding recorded vide order dated 15/1/2018 by the Labour Court while holding the finding of Enquiry Officer as perverse. As such, only challenge is to the final Judgment delivered by the Labour Court on 4/5/2018. To substantiate this fact, prayers made by the Petitioner before the Industrial Court are reproduced as under :

The Industrial Court has dealt with the issue which was raised by the Petitioner before the Industrial Court.

It is further pertinent to note that before the Industrial Court, the Petitioner was not diligent to contest the proceeding, as nobody appeared while Revision was decided on its own merits. As such, on the basis of record, which was available before the Industrial Court, merits of the matter were considered, and accordingly, same was dismissed by the order dated 7/8/2019.

In the present Writ Petition, Respondent/Employee has pointed out that the Petitioner/Federation was having an opportunity to record the evidence after adjudication of preliminary issue as to the perversity of finding of the Enquiry Officer recorded by the Labour Court by conducting de novo enquiry. However, the Petitioner/Federation failed to avail that opportunity in the matter. Once the Petitioner/Federation failed to avail that opportunity and the said order attained the finality, the same cannot be allowed to challenge first time before this Court in Writ Petition. The Petitioner was having ample opportunities before the Labour Court to establish by concrete evidence that findings are not perverse in nature. But, the Petitioner failed to avail the said opportunities. So also there was no challenge before the Industrial Court to the order dated 15/1/2018 passed by the Labour Court, whereby it is held that the findings of Enquiry Officer are perverse. Hence, the Petitioner cannot be permitted to challenge the same first time before this Court in the matter.

The Petitioner/Federation in this regard has stated that the interim order of the Labour Court dated 15/1/2018 holding that findings of Enquiry Officer are perverse, are merged in the order of Labour Court. The order of Labour Court was challenged before the Industrial Court. The Industrial Court has upheld the Judgment of the Labour Court. Hence, the Petitioner can challenge the same in the present matter. Accordingly, he has attempted to point out that findings recorded by the Labour Court are incorrect and contrary to the record, and therefore, Judgment of the Labour Court and Industrial Court be quashed and set aside. Therefore, the Petitioner seeks remand of the matter back to the Labour Court with opportunity to the Petitioner to conduct de novo enquiry in the matter, to prove the misconduct of the Respondent.

In the light of the submission made by the parties, it is pertinent to note that the Petitioner as well as Respondent have relied upon the Judgment of the Hon’ble Supreme Court of India in the case of The Cooper Engineering Limited V/s Shri P. P. Mundhe, (1975) 2 Supreme Court Cases 661. It is the contention of the Petitioner, by relying upon this Judgment that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision on the preliminary issue, as the same can be agitated even after the final award. Therefore, according to the Petitioner, as there is a final Award passed by the Labour Court and the same was confirmed by the Industrial Court, the preliminary issue decided by the Labour Court can very well be challenged in the present Petition.

Per contra, relying upon the same Judgment, it is the submission of the Respondent/Employee that once the Labour Court has decided the preliminary issue and the management has opportunity to adduce any evidence, the same was not availed by the Management, then it is not permissible for them to adduce any evidence in any proceeding to raise the issue.

In view of the submission of both the parties, it would be relevant to reproduce paragraph No.22 of the said Judgment as under :

This proposition of law laid down by the Hon’ble Supreme Court is in two parts— first part of this paragraph is in respect of the opportunity available to the employer after decision on preliminary issue by the Labour Court; and Second part, which starts with the wording, ‘we should also make it clear that.........’, in my opinion, is in respect of the fact that the preliminary issue can be challenged, while challenging the finding/award passed by the Labour Court.

In the present matter, in my considered opinion, first part of this paragraph of Hon’ble Supreme Court of India would be applicable in the matter. It is admitted fact in the present case that before the Labour Court, Petitioner refused to adduce evidence after order passed by the Labour Court by holding that finding of Enquiry Officer are perverse. Hence, the Petitioner, at this stage of the matter, cannot seek relief to remand the matter back to the Labour Court to lead evidence. It is also pertinent to note that Respondent/Employee has attained the age of superannuation in the year 2012. In view of this also, prayer of the Petitioner cannot be considered in the matter.

It is also pertinent to note that this Court, while exercising the jurisdiction under supervisory powers under Article 227 of the Constitution of India, can entertain the Petition where there is a patent or prima facie illegality pointed out in the matter. But here is the case where Petitioner/Federation was at fault for not availing the opportunities which were available to them in the matter. Therefore, for the fault of the Petitioner/Federation, the Respondent/Employee cannot be put at sufferance.

In the light of this legal position, I am of the considered opinion that considering the peculiar facts of the matter that the dismissal of Respondent/Employee, which was effected on 20/5/2005 and he has been superannuated in the year 2012, it would not be proper to remand the matter to the Labour Court to conduct de novo enquiry in the matter by setting aside the Judgment of Labour Court and Industrial Court.

In this background of facts, Petitioner has prayed that considering the nature of allegation against the present Respondent, this Court shall interfere in the amount of interest which was imposed by the learned Labour Court at the rate of 12% if order is not complied within two months, by way of impugned Judgment and Order dated 4/5/2018. In my considered opinion, the interest on the back wages, which are directed to be paid to the Respondent from 20/5/2005 to March-2012, at 12% deserves to be reduced at the rate of 6% per annum. Accordingly, the order of Labour Court is required modification to that extent in the matter.

In the light of above, Writ Petition stands disposed of only with a modification in the Judgment and Order dated 4/5/2018 passed by the Labour Court in Complaint (ULP) No. 50/2005 to the extent that the rate of interest towards back wages of Respondent/Employee from 20/5/2005 till the month of March-2012 shall be at the rate of 6% per annum.

The Petitioner/Federation is, accordingly, directed to deposit the amount of back wages within a period of three months from the date of order.

The rest of the Judgment of Labour Court dated 4/5/2018 passed in Complaint (ULP) No. 50/2005 and Industrial Court dated 7/8/2019 in Complaint (ULP) No. 11/2018 is hereby confirmed.

Rule is made absolute in above terms with no order as to costs.