-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No.445 of 2008 Bombay Hospital Trust ..Petitioner vs. 1. Bharati A.Ruke and another ..Respondents Mr.S.K.Talsania, Sr.Counsel i/b M/s Sanjay Udeshi and Co. for petitioner. Mr.C.J.Sawant, Sr.Counsel i/b Mr.M.B.Gawade for respondent no.1. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. 28th April, 2008 28th April, 2008 28th April, 2008 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT: 1. Heard Mr.Talsania, learned Senior Counsel for the petitioner and Mr.Sawant, learned Senior Counsel for respondent no.1. 2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the Award dated 6th September, 2007. By this Award, the learned Judge has held that the enquiry is fair and proper but the findings of the Enquiry Officer are perverse. In other words, the Award is termed as Part I Award and is rendered in these terms. -2- 3. Mr.Sawant, learned Senior Counsel appearing for respondent no.1, at the out set, submits that the present petition under Article 226 of the Constitution of India is not maintainable. The matter is at the stage where the Labour Court has held that enquiry is fair and proper but the findings of the Enquiry Officer are perverse. It is not as if the petitioner is without any opportunity in as much as it is not the case of the petitioner that the Labour Court has set aside the order of dismissal of respondent no.1 from service. All that has happened is that issue of fairness of the enquiry and findings therein are concluded. The dismissal order is not reversed or interfered with. At that stage, the matter will proceed and the petitioner can make appropriate submissions. That apart, the petitioner can, if Award Part II is adverse to it, impugn both Part I and Part II Awards and raise all such pleas as are raised in the petition. Looked at from any angle this writ petition is not maintainable. There is no reason to entertain it at this stage. 4. Mr.Talsania, on the other hands contends that there is no merit in the preliminary objection. He submits that the decisions which are relied upon by Mr.Sawant do not lay down any absolute proposition of law. They do not hold that a writ petition under Article 226 of the -3- Constitution to challenge Part I Award is not maintainable at all. On the other hand, reliance is placed by Mr.Talsania on the decision reported in 2007(6) Mh.L.J. 436 (Mahindra and Mahindra Vs.Suryabhan Avhad) and a decision rendered in W.P.No.3125 of 2006 on 31st January, 2007 by this Court in the matter of Indian Hotels Company Ltd. Vs. Jagat Singh Gurow. Mr. Talsania submits that in these decisions this Court has referred to the rulings of the Hon’ble Supreme Court which have been relied upon by Mr.Sawant and held that there is no prohibition in entertaining and trying a writ petition against Part I award. Ultimately, everything depends upon the facts and circumstances of each case. 5. I have perused the petition and annexures thereto including the impugned Award. Somewhat identical contentions were raised before me in the two decisions to which a reference has been made by Mr.Talsania. My attention is invited to the decision of the Hon’ble Supreme Court in AIR 1975 SC 1900 (Between Cooper Engineering Ltd. And Shri P.P.Mundhe). My attention is invited to a decision where the Hon’ble Supreme Court has taken a view that at interlocutory stage this Court should not interfere. -4- 6. After considering all these decisions I had held that this Court is reluctant to interfere at the interlocutory stage ordinarily. However, when illegality and perversity is apparent and orders/award Part I result in miscarriage of justice, then, the writ jurisdiction is not shut out and can be availed of by the employer. 7. In such circumstances, I do not propose to throw out the petition only on the ground that Part I award is not capable of being impugned in writ petition under Article 226 of the Constitution of India. 8. Hence, Rule. Learned Counsel for respondent no.1 waives service. By consent, rule made returnable forthwith. 9. The first respondent was before the Court below after she sought a Reference. The reference was made by Appropriate Government after the first respondent raised industrial dispute.She sent a notice to the Labour Commissioner which was forwarded for conciliation but the Conciliation Officer after having version of both sides before him submitted a report that no settlement could be arrived at. Upon failure report, the Appropriate Government referred the dispute for adjudication to the -5- second Labour Court at Mumbai under sec.10(1) read with sec.12(5) of Industrial Disputes Act, 1947. The first respondent, therefore, filed the statement of claim. The reference came to be numbered as Reference (IDA) No.28 of 2003. The only issue that was referred for adjudication is "whether the dismissal from service is in accordance with law and whether respondent no.1 is entitled to the relief that has been claimed by her." 10. The statement of claim proceeds on the basis that the petitioner had employed the first respondent from 2nd May, 1978 as a clerk. It is alleged that the management supported one Bharatiya Kamgar Karmachari Mahasangh. However, there is a Union called Bharatiya Kamgar Sena functioning in the hospital. The petitioners are dissatisfied with the Union known as Bharatiya Kamgar Sena and, therefore, proceeded to issue charge sheet to members of Bharatiya Kamgar Sena and also dismissed some of them. The first respondent is a Committee Member of Bharatiya Kamgar Sena and her husband was the President of Bombay hospital Unit since 1990 to 1998. Her husband is the main leader and has been very active in union activities. Therefore, the petitioner employer has a vindictive attitude as far as first respondent is concerned. The charge sheet was issued to her. The charge sheet is on -6- the basis that the first respondent has been reporting late for duties by 30 minutes to 1 hour. She leaves the place of work without prior intimation. She does not cooperate with the officials in smooth working of the department. The charge sheet alleges that warning letter was addressed on 23rd June, 1995 and 6th November, 1995. The Departmental Head Dr. Priti Ravi had directed that these warning notices be displayed on the Notice Board as the first respondent refused to accept the written warnings issued vide letter dated 6th November, 1995. 11. On 22nd November, 1995 Dr.Ravi told Mr.Krishna, attendant to put the warning letter on the notice board and thereafter to lock the notice board but before Mr.Krishna could do so the first respondent tore off the notices and threatened the wardboy and sister present there, that, if any personal letter was put on the notice board, she would break the notice board. She also abused Dr.Ravi in presence of the patients and staff of the department. 12. On such allegations it was stated that the act would amount to misconduct as per applicable standing order. The misconduct alleged was leaving the place of work unauthorizedly without prior permission, habitual late -7- attendance, wilful insubordination or disobedience of any lawful or reasonable orders of a superior. Lastly, it was alleged that the acts complained of are of subversive of discipline or good behaviour on the premises of the hospital. 13. The charge sheet informed the first respondent that explanation should be given within 72 hours from the date of receipt of the notice. She was informed that an independent Enquiry Officer shall hold the domestic enquiry on 8th December, 1995 at 11.30 a.m. 14. After setting out the above acts, it is alleged by the first respondent in the statement of claim that the Enquiry Officer started enquiry on 8th December, 1995 and conducted the same till 23rd December, 1995. The enquiry was kept in abeyance till 13th May, 1996. Thereafter another Enquiry Officer replaced the earlier one. He conducted the enquiry from 24th June, 1996 till 26th August, 1996. Thereafter, third Enquiry Officer was appointed. The third Enquiry Officer was replaced by Mr.C.D.Konale. The said Mr.Konale completed the enquiry in respect of the first charge sheet. As far as second charge sheet dated 2nd February, 1996 the Enquiry Officer was appointed who commenced the enquiry on 26th July, 1996 -8- and conducted it for one day. Thereafter another Enquiry Officer was appointed and he was also changed. The said Enquiry Officer Smt.Prithpal Y.Gadda started the enquiry on 24th October, 1998. 15. The specific allegation of the workman is that she was a not given fair opportunity to defend her case and not provided the relevant documents. It is in such circumstances, she filed the complaint of unfair labour practice in VIth Labour Court, Mumbai. The complaint was numbered as complaint (ULP) No.163 of 1997. The complaint was on the apprehension but during pendency of the same, dismissal order dated 11th November, 1999 was issued. Therefore, the complaint was withdrawn on 25th August, 2000 with liberty to raise a dispute. 16. That is how she sought the above mentioned intervention of the Deputy Commissioner of Labour and Conciliation Officer. It is in the light of the above facts that the reference was made. In paras 6 to 8 of the statement of claim, the worker has alleged that during the course of her enquiry she was denied fair opportunity. She was not allowed to defend herself. The enquiry is biased and contrary to the principles of natural justice. -9- 17. In paras 9 and 10 of the statement of claim, the findings of the Enquiry Officer are termed as perverse for the reasons set out therein. Thereafter, the workman contended that considering the material on record, the findings of the Enquiry Officer are based on some presumptions and, therefore, they are perverse. She has not committed any misconduct as alleged in the charge sheet. The misconduct has not been proved in the enquiry. 18. Principal grievance was that Dr.Priti Ravi was not examined by the Management during the course of enquiry. In such circumstances there is no material on record to arrive at a conclusion that the workman is guilty of misconduct much less the one alleged. The termination letter dated 11th November, 1999 is, therefore, vitiated. She has also put in issue her past performance and on the basis of the above she has sought the reliefs which are more particularly set out in para 21 of the statement of claim. 19. The written statement of the petitioner was filed and apart from maintainability of reference, it was contended that the enquiry was conducted in accordance with the principles of natural justice and full opportunity was given to respondent no.1 workman to defend herself. She -10- had submitted the common reply to the show cause notice and after considering the reply, the gravity of misconduct so also all other factors subject action has been taken. 20. The petitioner denied all allegations with regard to the Union activities and has contended that it is false to suggest that action was initiated only because the petitioner desired to victimise the first respondent for her Union activities. On the other hand, it is pointed out very specifically that the petitioner had noticed that respondent no.1 was not adhering to the discipline that is to be maintained in the hospital. She was not cooperating with the concerned staff members and doctors in charge. All allegations made by the first respondent in the statement of claim were thus denied. It was pointed out that non examination of the doctor at the enquiry has not prejudiced her at all. This is not a case where there was no evidence. There were independent witnesses to the incident who have been cross examined at length. Their testimony has not been shaken in any manner. Further, respondent no.1 does not deny the incident. In such circumstances, the claim deserves to be dismissed. 21. Before 2nd Labour Court at Mumbai, the first respondent filed her affidavit in lieu of examination in -11- chief. The learned Judge had framed the issues in the light of the pleadings and considering that both sides requested him to treat issue no.1 as preliminary issue, the learned Judge treated the same accordingly. Issue no.1 reads thus: 1. Whether workman proves that the enquiries conducted by officer are not fair, proper and findings are perverse? Respondent no.1 filed her affidavit in lieu of examination in chief before the second labour Court. She has in her deposition in chief reiterated the allegations and statements in the statement of claim. Her emphasis was that the charge sheets were issued on the basis of oral complaint of Dr.Priti Ravi. In para 8 of her examination in chief she states that the petitioner did not give fair opportunity to defend herself. Enquiry was an empty formality. Though the charge sheet was issued on the basis of the alleged complaint of Dr.Priti Ravi but she was not examined. The entire affidavit proceeds on the basis that non examination of this doctor is fatal to the petitioner’s case. 22. In the affidavit which is filed in lieu of -12- examination in chief para 16 is devoted to reiterating all the grounds with regard to perversity of findings of the enquiry officer. It is her case that enquiry officer’s findings are totally perverse and without any reasoning. The findings are not based on evidence but on personal knowledge of the Enquiry Officer. Even the Enquiry Officer should have considered the fact that non examination of the witness Dr.Priti Ravi makes his findings vulnerable as they are based upon presumptions. Therefore, all findings are perverse. 23. She was cross examined by the petitioner and in cross examination she has admitted that Enquiry Officers were changed on account of her objections. She admits that before raising the dispute and attending the conciliation proceedings she had filed a complaint (ULP) No.163 of 1997 which is pending in VIth Labour Court, Mumbai. A specific suggestion was given to her as to whether VIth Labour Court by order dated 28th October, 1999 recorded a finding that the enquiry is fair and proper. Further, the Labour Court held that the findings also are not perverse. She denied this suggestion but stated that she did not challenge the order passed by VIth Labour Court, Mumbai. She specifically admitted that she understood the charges levelled against her in the charge sheet,. Her testimony -13- would show that the entire basis is on the fact that enquiry officer was not fair and did not allow her to defend herself properly. She specifically states that her grievance is that enquiry officer has not considered her evidence and admissions given by the Management’s witnesses. However, she admits that she will not be able to tell as to which of the documents she desired to produce but not allowed by the Enquiry Officer. In the cross examination there are no other questions put with regard to fairness of the enquiry and perversity of the findings. 24. Thereafter the written arguments were tendered by both sides. As far as perversity of the findings are concerned, the written arguments which have been tendered by the first respondent in para 20 urge that enquiry officer did not consider the evidence given by the defence witnesses and the finding is arbitrary. The finding is not based upon evidence. Some inference has to be drawn about non examination of Dr.Priti Ravi and also non consideration of some important and relevant documents. No documentary evidence was produced by the petitioner/management was another grievance. It was also contended that enquiry officer has not given any reasons as to why evidence tendered by the defence is not -14- acceptable. Thus, without considering the material on record the finding was rendered. The finding which is not based upon evidence has to be termed as perverse. Reliance was placed upon several judgments. 25. Short written arguments were also filed on behalf of the petitioner and the petitioner dealt with both aspects namely with regard to fairness of enquiry and perversity of findings. 26. After pointing out the relevant and settled principles it was contended by the petitioner that the enquiry officer has at length dealt with the charges of mis conduct and has relied upon upon evidence of Suryakant Patil as well as Krishna Mayekar. The Enquiry Officer has assigned reasons for accepting the version in the charge sheet and that of witness Priya More. The Enquiry Officer has assigned cogent and sufficient reasons while accepting the case of petitioner/management for not examining Dr.Priti Ravi. The Enquiry Officer has relied upon the documentary evidence in the form of time card, attendance card to reach the conclusion. Thus, he has carefully analysed the oral and documentary evidence on record. For all these reasons it was urged that there is no merit in the contention that the findings of the Enquiry Officer -15- are perverse. 27. The learned Presiding Officer after considering oral arguments and considering the written submissions tendered, rendered the impugned Award. He concluded that the enquiries are fair and proper but the findings are perverse. The learned Presiding Officer has referred to the oral and written arguments of both sides and in para 10 rendered the finding that enquiry is fair and proper. There is no challenge to this part of the Award. 28. Thereafter in para 11 the question of perversity is purportedly dealt with. The Presiding Officer has based his conclusion about enquiry officer’s findings only on the fact of non examination of Dr.Priti Ravi, her complaint and the copy thereof being not provided to the first respondent so also non production of attendance register. It is concluded by him that coming late in the office is a charge which can be substantiated only with reference to "attendance register" and that was not produced to prove the charge. The allegation that she was not doing the work of typist and was disobedient could not have been rendered as the first respondent was not appointed as a typist clerk. The Presiding Officer in para 11 held thus: -16- "11. The question is whether the findings of the enquiry officer are perverse. I perused the record of both the enquiries. It is important to note that Dr.Priti Ravi who has filed written complaint before the Management but she was not examined at the time of enquiry. The copy of the complaint filed by Dr.Priti Ravi was not provided to the workman. Inspite of that the enquiry officer held her guilty. This is not just and proper. It is stated that the workman Mrs.Bharati Ankuish Ruke was in the habit of remaining absent but attendance register was not produced at the time of enquiry. It is further alleged that she was coming late in the office but the attendance register was not produced to prove the said charge. It is further alleged that she was not doing typist work and she was disobedient. The workman stated that she is not appointed as a Typist Clerk. Therefore, I find that the enquiry officer has not appreciated the evidence properly. Therefore, I find that the findings of the enquiry officer are perverse." 29. In such circumstances, it is concluded that the findings of the enquiry officer are perverse. It is this -17- part of the conclusion which is assailed by the petitioner in this petition. 30. Mr.Talsania, learned Senior Counsel appearing for the petitioner, contended that the Labour Court’s award in so far as it concludes that the findings of the Enquiry Officer are perverse is vitiated by error apparent on the face of record. He submits that the Presiding Officer failed to apply his mind to the record of the enquiry and more particularly to deposition of the witnesses who have been examined by the Management. Mr.Talsania submits that there is no question of production of attendance card register. It was not even the case of the workman that while reporting for work she was signing some register. There was a time card/attendance card which has to be inserted at the gate/proper place by every workman. Such insertion of the card records automatically timings at which the workman attended the work and inserted the card. There is no attendance register, therefore, required to be maintained and is accordingly not maintained. It is not the case of the workman that time card/attendance card was not produced. Therefore, the Labour Court’s findings themselves should be termed as perverse. 31. Mr.Talsania’s further contention is that once enquiry -18- is held to be fair, just and proper and all opportunities are duly given to the charge sheeted employee, then, while recording a finding with regard to perversity of the conclusions drawn by the Enquiry Officer, it was not permissible for the Presiding Officer to make a reference to non examination of Dr.Priti Ravi. He submits that there are independent witnesses to the incident which occurred at the time when the concerned departmental employees were putting up a notice on the notice board. Mr.Talsania submits that it is not as if the only allegation is that the first respondent abused Dr.Ravi in filthy language. The basis of enquiry is not just this conduct but habitual late coming of the first respondent and that she has committed acts which are subversive to discipline. Further, this is a clear case of insubordination. She has bothered not to offer any explanation for the acts in which she has indulged. In fact, they are admitted by her. Thus, the examination of the doctor concerned or the type of work with which the first respondent was entrusted is hardly of any relevance. He submits that the enquiry officer has not accepted the management’s version with regard to the work that was entrusted to first respondent. On the other hand he has rendered a finding in favour of the employee. In such circumstances, the conclusion drawn by the Presiding -19- Officer is patently erroneous and unsustainable and, therefore, deserves to be quashed and set aside. 32. On the other hand, Mr.Sawant, learned Counsel appearing for the first respondent, supported the conclusions of the Presiding Officer. He submits that the husband of the first respondent was the President of the Union which was functioning in the hospital. She herself is the active member of the Union. The Management did not dispute that the workman could join any Union. Therefore, the chargesheets could not have been issued. The first respondent has been victimised. She was regular in her attendance and never late in the office. She was doing all work which was assigned to her and was obedient as well. The document which is most material and relevant is not produced and, therefore, no conclusion could have been drawn that the first respondent was remaining absent and coming late in the office. Thus, the conclusion drawn is in consonance with the material produced and should not be interfered with by this Court. 33. I need not reiterate the principles which permit exercise of writ jurisdiction. It is true that rarely and in exceptional cases interference at this stage is done by this Court. However, in my view, this is a fit case where -20- Court’s jurisdiction under Article 226 of the Constitution of India must be exercised. The entire conclusion of the Presiding Officer is in one para. If one takes the first reason which is assigned with regard to non examination of the doctor concerned, once the Presiding Officerr holds that the enquiry is fair and proper despite this doctor not being examined, then, one fails to understand as to how this reason could have been assigned for the conclusion about perversity of the findings of the Enquiry Officer. That apart, in the petition copy of the charge sheet is annexed. The charge sheets are at Exh.A. The chargesheet dated 28th November, 1995 proceeds on the basis that warning letters were given to the concerned employee. It was