AI Structured Summary
Not yet generated for this judgment
Judgment
K.K. Tated, J.—Heard learned Counsel for the parties.
Rule.
Rule made returnable forthwith.
By consent matter is taken for final hearing at the stage of admission itself.
By this petition under Articles 226 and 227 of the Constitution of India, the petitioner - original applicant challenges the order dated 6th March, 2012 passed by the learned Judge, First Labour Court, Thane below Exhibit U2 in Complaint (ULP) No. 23 of 2012 rejecting the petitioner''s Application for interim reliefs u/s 30(2) of the MRTU and PULP Act 1971 and the Judgment dated 31st January, 2013 passed by the learned Member, Industrial Court at Thane in Revision Application (ULP) No. 33 of 2012 confirming the order of First Labour Court, Thane.
It is the case of the petitioner that the respondent management on 8th June, 2011 charge-sheeted the petitioner stating that she has managed to punch her card for attendance by proxy on 7th, 9th, 11th, 13th, 14th and 16th May, 2011 illegally and with mala fide intention to get the salary without attending the duties at their site at Kalwa, District Thane. After holding enquiry the respondent-management issued show-cause notice dated 20th February, 2012 calling upon the petitioner to submit her explanation/reply/comments on the report and finding of the Enquiry Officer dated 17th February, 2012 within 48 hours from the date of receipt of the notice. Petitioner replied the same by letter dated 21st February, 2012. Thereafter, the petitioner immediately filed Complaint (ULP) No. 23 of 2012 before the First Labour Court, Thane and preferred an Application below Exhibit U2 for interim relief u/s 30(2) of the MRTU and PULP Act, 1971 restraining the respondents from terminating the services of the petitioner on the basis of show-cause notice dated 21st February, 2012 issued to her. The same was rejected by the First Labour Court, Thane. Thereafter, the petitioner preferred Revision Application (ULP) No. 33 of 2012 before the Industrial Court Thane. That Revision Application was also dismissed by the Industrial Court, Thane by the judgment dated 31st January, 2013 and, therefore, the present petition.
The learned Counsel appearing on behalf of the petitioner submits that both the Courts below erred in coining to the conclusion that the petitioner failed to prove the case for interim relief during the pendency of the complaint with the First labour Court, Thane. She submits that the petitioner never instructed any person to punch the card on those 6 days as stated in the notice/letter dated 20th February, 2012. She further pointed out that the respondent prepared pay slip for May, 2011 in which the Company on their own showed leave of 6 days. All those 6 days include which is stated in charge-sheet dated 8th June, 2011. This itself shows that the respondent-Company considered that the petitioner was on leave for 6 days in May, 2011. These facts are not considered by both the Courts below at the time of rejecting her Application for interim relief. She further states that during this period the respondent-company has suspended the petitioner and they are not paying her salary. Therefore, in the interest of justice, during the pendency of the Complaint (ULP) No. 23 of 2012, interim protection to be continued.
On the other hand, the learned Counsel appearing on behalf of the respondent vehemently opposed the present petition. He submits that there is no substance in the present petition, and, therefore, the same is liable to be dismissed with costs. He submits that both the Courts below have considered the fact that the petitioner managed to punch card for attendance by proxy for those 6 days. He further pointed out that both the Courts have considered that respondent-Company conducted the enquiry according to the law in which the petitioner has participated. He submits that on the basis of the report and the findings of the Enquiry Officer dated 17th February, 2012 they issued show-cause notice dated 20th February, 2012 calling upon the petitioner to submit her reply and/or explanation/comments within stipulated time. The petitioner has submitted her reply in the present proceeding on 21st February, 2012. He further submits that the Division Bench of our High Court in the matter of Mr. Arvind Kashinath Chavan and others v. M/s. Gharda Chemicals Limited and others in Letters Patent Appeal No. 328 of 2011 dated 17th October, 2011 held mat if the Departmental Enquiry is completed and show-cause notice with a report of the Inquiry Officer has been given, in that case petitioner is not entitled to any relief from the Labour Court because even if the Employer takes decision of termination of the service of employee, same can be challenged by the employee in appropriate Court and can ask for stay of the termination. In view of the order dated 17th October, 2011 in letters Patent Appeal No. 328 of 2011 the learned Counsel for the respondent states that there is no substance in the present writ petition and the same is liable to be dismissed with costs.
I have heard both the Counsel for the parties. I have gone through the copy of the show-cause notice dated 20th February, 2012, reply filed by the Respondent and the orders passed by both the Courts below on Petitioner''s Application for Interim Relief and Review Application. Admittedly, in the present matter, the Respondent Company has conducted an enquiry and submitted the report and findings dated 17th February, 2012. Therefore, Respondent issued show-cause notice dated 20th February, 2012 to the Petitioner. The Petitioner filed her reply dated 21st February, 2012. Instead of waiting for final order to be passed by the Company, petitioner preferred Complaint u/s 28 read with Item Nos. 1(a), 1(b), 1(d), 1(f) and 1(g) of Schedule IV of the MRTU and PULP Act, 1971 and in that Complaint the petitioner filed an Application below Exhibit U2 for interim stay. Same was rejected by the First Labour Court Thane on 6th March, 2012 holding that the Enquiry Officer has considered all the facts and circumstances and contended that the respondent-company has not taken any action pursuant to the reply submitted by the petitioner dated 21st February, 2012. The petitioner has preferred Review Application No. 33 of 2012. The Industrial Court, Thane dismissed the petitioner''s Review Application holding that the allegations in the charge-sheet particularly on record about misuse of punching card or identity card by proxy are proved before the Enquiry Officer. In any case, as on today the respondent-Company has not taken any decision on their show-cause notice dated 20th February, 2012 in view of the protection granted by both the Courts below. It is now well settled that the Courts will not act as an Appellate Court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the. findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, Courts will not interfere with findings of fact recorded in Departmental Enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a Tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. Considering the order of the Division Bench of our High Court dated 17th October, 2011 in Letters Patent Appeal No. 328 of 2011 and the facts and circumstances of the present case, I am of the opinion that even if the final decision is taken by the respondent-Company as per their show-cause notice dated 20th February, 2012, the petitioner is entitled to take out appropriate proceeding before the Labour Court This is recorded by the Division Bench in above mentioned matter in Para Nos. 1 and 2 which read thus:
Admittedly, the Departmental Inquiry against the appellants is completed.
Show-cause notice with a report of the Inquiry officer has been given. At this stage, without permitting the employer to consider the explanation and decide what the punishment if at all is to be imposed on a workmen, the workmen approached the Labour Court seeking an order restraining the employer from imposing any punishment on the basis of the inquiry report. In our opinion, the Labour Court and the learned Single Judge have rightly declined to interfere at this stage.
The learned Counsel appearing for the appellants requested mat in any case the employer should be directed in case an order of punishment is issued not to give effect to that order for a specified period, obviously to enable the appellant to approach the Labour Court and seek suitable interim order. We would have considered such a request had there been no power vested by the Unfair Labour Practice Act in the Labour Court and in the Industrial Court to make a mandatory order if the circumstances of the case so warrant. In our opinion, therefore, even if an order terminating the services of the workmen is made, the workmen would be free to approach the Labour Court for appropriate interim order.
In view of the above mentioned facts and order passed by this Court dated 17th October, 2011 I do not find any substance in the present petition and the same is dismissed. At this stage the learned Counsel appearing on behalf of the petitioner seeks stay of the present order. Considering the facts and circumstances of the present case, stay is granted for four weeks.