1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.4078 of 2006 With Civil Application No.723 of 2008 M/s.Cambata Aviation Pvt.Ltd. & ors. Petitioners Vs. Mr.Vijay Murthy Nadar Respondent Mr.Kiran S.Bapat with MR.Jayesh K. Desai for petitioners. Ms.Ketaki Rege with Mr.Vinod Shetty for respondent. CORAM: B.H.MARLAPALLE, J. March 13, 2008 ORAL JUDGMENT. 1. This petition was admitted on 17/8/2006 and Rule on interim relief was made returnable after six weeks. Civil Application No.723 of 2008 has been filed by the respondent-employee praying for directions against the petitioner - employer to pay him 50 per cent of his monthly wages from month to month and deposit the arrears of wages from 29/1/2005 till date. R. & P. in Complaint (ULP) No.240 of 2002 from which this petition arises has also been perused and with the consent of the parties the petition is finally heard. 2 2. The petitioner is engaged in the business of ground handling (handling the baggage) at the International Airport in Mumbai and engaged by the International Airlines. It is mainly responsible for loading and unloading the baggages. The respondent - workman was in its employment as a loader and on 11/3/2001 he was allotted the duty of Gulf Airways Flight No.GF-059 of loading the departure baggage and he was on over time duty. After the departure baggage was loaded, as per the prevalent practice the Assistant Supervisor of Traffic Department started the personal check of all the loaders one by one and during that process when the respondent - employee was searched, the Supervisor by name Shri Dyanesh Joshi found one digital diary in the hip pocket of the employee’s trouser. When the employee was questioned about the digital diary initially he allegedly claimed that it was his own and subsequently when he was called upon to operate the same, he could not do so. It is further alleged that on further questioning he admitted having removed the said diary from one of the baggages which were loaded in the plane. The Assistant Supervisor took the employee to the Traffic Manager as well as the Deputy 3 Manager of Traffic before whom the employee had allegedly admitted having removed the diary from the baggage. He was, therefore, suspended as per the order dated 12th March 2001 and was issued a charge-sheet cum enquiry notice on 27th March 2001. He replied to the charge-sheet and took the defence that the subject digital diary was purchased by him and the allegation that he had picked up the same from the baggage of one of the passengers was false and fabricated. It appears that he submitted a receipt issued by one M/s. Simla Stationery Mart at Kala Ghoda in support of his defence. Without completing the enquiry the petitioner - employer issued the order of dismissal on 14/1/2002. It was stated in the said order that due to the terrorising tactics of assaults and threats employed by the respondent - employee through his supporters / associates against Mr.Joshi who was the star witness, the enquiry could not be completed and, therefore, considering the gravity of misconduct committed by the employee the order of dismissal was issued and the employer claimed that it was not possible to conduct the departmental enquiry as the eye witnesses were not willing to come forward apprehending danger to their lives at the behest of the employee. This 4 order of dismissal was challenged by filing Complaint (ULP) No.240 of 2002 filed under Section 28 read with Item 1 of Schedule IV of the MRTU & PULP Act, 1971 ("the Act" for short) along with an application for interim relief under Section 30(2) of the said Act. The learned Judge of the Labour Court by a detailed order dated 29/1/2005 partly allowed the application for interim relief at Exhibit U-2 and directed the petitioner - company to pay 50 % of basic pay, 50% D.A. and 50% special pay from the date of order till proving of the alleged misconduct before the Court. The said order was challenged by the petitioner - employer in Revision Application (ULP) No.55 of 2005 and the same came to be dismissed by the Industrial Court on 6/1/2006. 3. Mr.Bapat, the learned counsel for the petitioner - employer submitted that the Model Standing Orders framed by the Government of Maharashtra are applicable and accordingly the petitioner had taken appropriate steps for conducting a departmental enquiry into the charges levelled against the respondent - employee vide charge-sheet dated 27/3/2001. However, due to the acts solely attributable to the respondent - employee Mr.Dyanesh 5 Joshi, the Assistant Supervisor by his communication dated 27/11/2001 informed the employer that apprehending danger to his life, he would not appear before the Enquiry Officer for cross-examination. As per Mr.Bapat the petitioner employer was forced to wind up the enquiry midway and it was under these circumstances he proceeded to issue the order of dismissal dated 14/1/2002. He, therefore, submitted that in the instant case the Labour Court was not right to hold that it was a case of no enquiry and consequently direct the payment of 50 % of wages from the date of the order till the enquiry was completed. As per Mr.Bapat, it was not by the choice of the petitioner - employer that the enquiry had to be halfway closed and instead the employer was forced to wind up the enquiry proceedings on account of the acts attributable allegedly to the respondent - employee and, therefore, the employer was not required to pay the subsistence allowance in such a case. He further submitted that if on conducting the enquiry before the Labour Court the charges are proved, the order of dismissal would relate back to its date of issuance i.e. 14/2/2002 and, therefore, the impugned order is manifestly erroneous. In support of these contentions he placed reliance on 6 the Constitution Bench decision in the case of Kalyani Vs. Air Prance, Calcutta [1963 I LLJ 679] [1963 I LLJ 679] [1963 I LLJ 679]. He also relied upon the following decisions of the Apex Court, (i) Punjab Dairy Development Corporation Ltd. & anr. Vs. Kala Singh & ors. [(1997) 6 SCC [(1997) 6 SCC [(1997) 6 SCC 159] 159] 159]. (ii) Engineering Laghu Udyog Employees Union v. Judge, Labour Court and Industrial Tribunal & anr. [(2003) 12 SCC 1] [(2003) 12 SCC 1] [(2003) 12 SCC 1]. . Mr.Bapat also pointed out that a Division Bench of this Court in the case of United Ink & Varnish Co. Pvt. Ltd. v. Chandrashekhar Kuvre & ors. [2007 I CLR 503] [2007 I CLR 503] [2007 I CLR 503] had also considered a similar case wherein the Labour Court had directed to pay 75 % of the wages till a de novo enquiry was conducted before the Labour Court and in revision the Industrial Court had directed reinstatement and to pay the regular to the delinquent employee and both these orders were set aside by the Division Bench. 4. Ms.Rege, the learned counsel for the 7 respondent-employee, on the other hand, supported the impugned order passed by the Labour Court. She denied that the employee was responsible for the enquiry being wound up and alleged that it was the employer who did not proceed further with the enquiry perhaps knowing fully well that the charges would not be proved and decided to close the enquiry proceedings and issued the order of dismissal. When it was a case of no enquiry and the charges were required to be proved before the Labour Court, the employee ought to be treated as under suspension from the date of the order passed by the Labour Court till the enquiry is completed and, therefore, the Labour Court rightly directed payment of subsistence allowance at the rate of 50 % of the monthly salary. In support of these contentions she has relied upon the following decisions of the Supreme Court, (i) M/s. Sasa Musa Sugar Works (Pvt) Ltd. v. Shobrati Khan [AIR 1959 SC 923] [AIR 1959 SC 923] [AIR 1959 SC 923]. (ii) Hotel Imperial, New Delhi & ors. Vs. Hotel Workers’ Union [AIR 1959 SC 1342] [AIR 1959 SC 1342] [AIR 1959 SC 1342]. (iii) D.P. Maheshwari v. Delhi Admn. & ors. 8 [AIR [AIR [AIR 1984 SC 153] 1984 SC 153] 1984 SC 153]. 5. I have gone through the judgments relied upon by the respective parties and on perusal of the R. & P. it is noticed and as has been admitted in the complaint itself by the respondent - employee that the domestic enquiry consequent to the charge-sheet dated 27/3/2001 had commenced on 23/4/2001. The proceedings were held on 16/5/2001, 19/5/2001, 18/6/2001 and on 2/7/2001 and on all these dates the chargesheeted employee along with his defence representative or without him was present before the Enquiry Officer. The next proceeding of the enquiry was held on 13/7/2001 at the request of the employee, his statement was recorded and on 6/8/2001 the management examined its first witness Mr. Dyanesh Joshi. The next sessions of the enquiry was held on 19/9/2001. Mr.Dyanesh Joshi submitted a letter on 27/11/2001 to the Personnel Manager of the petitioner - company and pointed out three different instances of the alleged attack on him at the instance of the employee and stated that on every occasion police complaint was recorded i.e. C.R. No.4557 dated 3/9/2001 with Goregaon police station, C.R.No.698 9 dated 30/9/2001 with Sahar Police Station and C.R. No.545 dated 9/11/2001. Prima facie the record shows that the employer could not proceed further and complete the departmental enquiry on account of Mr.Joshi’s reluctance to appear before the Enquiry Officer to record his cross-examination. The petitioner - employer had undertaken before the Labour Court to prove the charges by leading evidence, oral as well as documentary. For allowing an application under Section 30(2) of the Act, a prima facie finding of unfair labour practice as alleged in the complaint is a must and in the instant case dismissal from service without completing the enquiry instituted and for the reason alleged by the employer it could not be an act of unfair labour practice, prima facie. As per the employer the circumstances were such that it was impossible to proceed further with the enquiry and for the reasons allegedly attributable to the chargesheeted employee and, therefore, it undertook to proceed with the enquiry before the Labour Court to prove the charges. In the charge-sheet as well as the order of dismissal it was stated that on interrogation during the search, the charge-sheeted employee admitted to have picked up the digital diary from the baggage of one 10 of the passengers but on receipt of the charge-sheet he denied the said charge and took a defence that the diary was purchased by him. In the case of Chandrashekhar Kuvre (Supra), on similar facts a Division Bench of this Court did not agree with the Labour Court directing to pay 75 % of the salary by way of subsistence allowance till the enquiry was completed before the Labour Court. In the case of Sasa Musa Sugar Works as well as Hotel Imperial (Supra), the proceedings arose by filing applications under Sections 33 or 33A of the Industrial Disputes Act, 1947 and when the applications were pending the employees concerned were suspended and were not dismissed and there was no domestic enquiry conducted. The employers sought liberty to prove the charges in the proceedings under Section 33 of the I.D. Act. It was under these circumstances, the Supreme Court held that when the employees were suspended, they were required to be paid subsistence allowance or usual wages as the case may be. Mr.Bapat, the learned counsel was, therefore, right in his contentions that if the order of dismissal is upheld by the Labour Court after the charges are proved by a de novo enquiry before it, the dismissal order would relate back to 14/1/2002 as has been held 11 by the Constitution Bench in Kalyani’s case (Supra) and reiterated subsequently by the Apex Court. I do not find any reason to take a different view than the view taken by the Division Bench of this Court in the case of Chandrashekhar Kuvre (Supra). The impugned order passed by the Labour Court is thus patently erroneous and hence unsustainable. At the same time there cannot be uncertainty in conducting and completing the enquiry and more so because during the last about two years no progress has been recorded before the Labour Court in that direction. Mr.Bapat submitted that Mr.Dyanesh Joshi is no more in the service of the company, however there are other eye witnesses available who have signed the report of search and they could be examined before the Labour Court to prove the charges. If the employer fails to prove the charges, obviously the employee would be entitled to all the benefits from 14/1/2002, as if on duty. 6. In the premises, this petition succeeds and the same is hereby allowed. The impugned order passed by the Labour Court on 29/1/2005 allowing the application at Exhibit U-2 is hereby quashed and set aside and the said application stands dismissed. The 12 Labour Court is directed to complete the enquiry before 31st May 2008 and dispose off the complaint on its own merits as expeditiously as possible and in any case before 31st July 2008. 7. Rule is made absolute accordingly with no order as to costs. 8. R. & P. be returned to the Labour Court forthwith. 9. Civil Application No.723 of 2008 stands disposed in view of the above order. (B.H.MARL