1 W.P.No.5434.99 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5434 OF 1999 Rajmani Tilakprasad Pathak (since deceased, through his heirs and legal representatives Smt.Gayatridevi Rajmani Pathak & ors. ... Petitioners v/s M/s.Ruby Mills Ltd. ... Respondent Mr.Rajesh S. Datar for the petitioners. Mr.Mahendra Agavekar i/by Mr.Rajesh Gehani for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 5TH JANUARY, 2011 ORAL JUDGMENT: 1. The petition has been filed by the heirs of the deceased workman Rajmani Tilakprasad Pathak who was employed as a watchman with the respondent mill. A charge-sheet was issued on 31.3.1983 to the workman by the mill alleging that he had committed theft of cloth manufactured and owned by the respondent mill. An enquiry was conducted against him in which he was found guilty of the alleged acts of 2 W.P.No.5434.99 misconduct. The workman was therefore dismissed from service. Being aggrieved by the decision of the respondent mill to dismiss him from service, the workman, after submitting a notice of change under Section 42(4) of the Bombay Industrial Relations Act, 1946 (in short, “the B.I.R. Act), filed an application being Application (BIR) No.552 of 1983 under Section 78 read with Section 79 of the B.I.R. Act. 2. In his application the workman contended that the enquiry conducted against him was vitiated as it was held contrary to the provisions of natural justice and fair play. He also contended that he was not involved in any theft and that a false charge-sheet had been issued to him at the instance of one Ramprasad Dubey who was a co-tenant of the room in which the workman was residing. 3. The mill filed its written statement contending that the aforesaid Ramprasad Dubey was not an employee of the mill and, therefore, had no connection with the Mill. It was further contended that the mill had found that the cloth manufactured by it was missing. A police complaint was filed and the cloth was recovered from the residence of the workman. It was further pleaded that a domestic enquiry had been held after which the workman was dismissed from service. 3 W.P.No.5434.99 4. The Labour Court concluded that the enquiry was not fair and proper and therefore the parties were permitted to lead evidence in the matter before the Court. The mill examined three witnesses, including Ramprasad Dubey to prove the charges levelled against the workman. 5. The Labour Court found that the evidence led by the mill before it was insufficient to prove the allegations against the workman. It observed that the witness of the mill who was examined to identify the cloth recovered from the residence of the workman, had admitted that such cloth was manufactured by other mills as well. The witness has also deposed that he identified the cloth at the Mahim police station and that he was not present when it was recovered from the residence of the workman. The Labour Court has then held that there was no material on record to indicate that the cloth was missing from the mill. No complaint had been filed by anybody from the mill. Instead, the complaint was filed by Ramprasad Dubey, the petitioner’s co-tenant. Taking into account all these factors, the Labour Court found that the preponderance of probabilities of the workman having committed the misconduct was not established. The Labour Court therefore directed the mill to reinstate the workman in service with continuity and full back wages with effect from 29.4.1983. 4 W.P.No.5434.99 6. Being aggrieved by the order passed by the Labour Court, the mill preferred an appeal before the Industrial Court being Appeal (IC) No.60 of 1989. That appeal was allowed by the Industrial Court. It has concluded that the Labour Court had erred in observing that since the workman had been exonerated by the Metropolitan Magistrate in the criminal proceedings, he could not found guilty of the act of misconduct allegedly committed by him. The Industrial Court held that it is a well settled principle that merely because a workman was exonerated in criminal proceedings, it is not necessary that the enquiry proceedings should also be dropped. The Appellate Court also observed that the nature of evidence of the standard of proof required in criminal proceedings is not the same as in a domestic enquiry where the enquiry officer has only to assess the preponderance of probabilities of the acts of misconduct alleged against him being committed by the workman. The Industrial Court therefore allowed the appeal and set aside the order passed by the Labour Court. However, the amount of Rs.15,000/- which was deposited by the mill when the appeal was admitted and has been withdrawn by the workman during the pendency of the appeal, was allowed to be retained by his heirs by the Industrial Court. 5 W.P.No.5434.99 7. After considering the submissions of the learned advocate for the parties, in my opinion, the Industrial Court has completely erred in setting aside the order passed by the Labour Court. The principle that the evidence required at the domestic enquiry and the standard of proof required before the Criminal Court is not the same is trite. This principle has been mentioned by the Industrial Court in its order but it has not further proceeded to consider whether the evidence led before the Labour Court was sufficient to infer that the workman has committed the alleged acts of misconduct. The Industrial Court has therefore erred in setting aside the order of the Labour Court by merely concluding that an enquiry can proceed although the Metropolitan Magistrate may have acquitted the delinquent workman. This approach of the Industrial Court is completely incorrect. It was necessary for the Industrial Court to assess the evidence led before the Labour Court, as it was acting as an appellate Court and not as a revisional Court. The appellate Court could have drawn its own conclusions, based on the evidence led before the Labour Court. However, it has not discussed the evidence at all in the present case. 8. In these circumstances, it would have been proper to remand the matter to the Industrial Court. The workman has 6 W.P.No.5434.99 expired. The learned advocate for the Mill points out that the mill is closed. This statement is not accepted by the learned advocate appearing for the petitioners. In these circumstances, in my opinion, it will be proper to consider whether the Labour Court has arrived at correct findings in the present case. 9. The Labour Court has held that the evidence led before it was insufficient to prove the allegation against the workman of having committed theft of cloth. Each witness’s evidence had been discussed by the Labour Court in great detail. The Labour Court has observed that although the cloth was found in the residence of the workman, there was no material on record to accept the fact that this cloth was manufactured by the respondent mill. The Labour Court has considered the evidence of one Upalekar who was employed with the mill and had adequate knowledge of textiles since he had obtained the diploma in textile manufacturing. Upalekar had admitted in his cross-examination that he had not submitted any report either to the police station or to the mill that the cloth was manufactured by the respondent mill. He admitted further that there was no identification marks on the cloth to lead to the inference that it was a product of the respondent mill. This witness has further admitted that 7 W.P.No.5434.99 such cloth is manufactured by other mills as well. Further more, he has admitted that he identified the cloth only at the police station and not at the residence of the workman from where the cloth was allegedly recovered. Taking into consideration all these factors, the Labour Court concluded that the mill could not prove the charges levelled against the workman. In the circumstances the workman was found entitled to reinstatement with continuity of service and full back wages. In my opinion, the Labour Court has not committed any error by granting the relief claimed by the workman. Ultimately, the workman has expired during the pendency of the appeal before the Industrial Court and therefore his heirs, who are the petitioners, would only be entitled to monetary relief. 10. In the circumstances, the order of the Industrial Court is set aside. 11. The order of the Labour Court is modified in the following manner:- The petitioners are entitled to the amount deposited by the respondent mill in this Court together with interest, if any, accrued thereon. It appears that although the 8 W.P.No.5434.99 petitioners were given liberty to withdraw the amount deposited in this Court by the respondent mill, they have not done so and the amount was reinvested. Accordingly, the petitioners are entitled to withdraw the amount deposited together with the interest accrued thereon. 12. Rule made absolute accordingly with costs. ..... 9 W.P.No.5434.99