1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.5873 OF 2007 Dnyandev Maruti Nirmal. ...Petitioner. Vs. The General Manager, BEST Undertaking. ...Respondent. .... Smt. B.P. Jakhade for the Petitioner. Mr. V.M. Palshikar with Ms.Kavita Anchan i/b. M/s. M.V. Kini & Co. for the Respondent. ..... CORAM :DR.D.Y.CHANDRACHUD, J. July 8, 2008. P.C.: The Petitioner was working as a driver with the BEST Undertaking. On 20th January 2001, he was on duty and was driving a Bus bearing registration No.6991, when an accident took place near Prabhadevi at 8.50 a.m. There was a collision with a Scooterist who sustained injuries and eventually died as a result of the accident. The Petitioner was chargesheeted for misconduct under Items 20(j) and (k) of the Standing Orders. A disciplinary enquiry was conducted. 2 The Enquiry Officer held the Petitioner guilty of misconduct. An order of dismissal was passed. The departmental appeals failed. The Petitioner challenged the order of dismissal in an application under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946. The Labour Court by a judgment dated 20th April 2004 held that the enquiry was legal, fair and proper, but that the findings were perverse. The Labour Court thereupon passed an order of reinstatement with full back wages and continuity of service. The Respondent challenged the order of the Labour Court in appeal. The Industrial Court in appeal came to the conclusion that (i) The findings which were arrived at by the Enquiry Officer were not perverse; and (ii) In any event, assuming that the enquiry had resulted in a finding which was perverse, the Labour Court ought to have furnished an opportunity to the Respondent to lead evidence to prove the misconduct. On behalf of the Petitioner, it has been submitted that the 3 Labour Court had considered in great detail, the evidence of the three witnesses who deposed in the course of enquiry. Learned Counsel urged that the determination by the Labour Court that the finding of the Enquiry Officer was perverse was based on a sound analysis of the evidence that was recorded. Learned Counsel submitted that there is virtually no discussion at all in the judgment of the Industrial Court that would sustain the reversal of the finding. On the other hand, Counsel appearing on behalf of the Respondent has supported the reasoning of the Industrial Court in paragraph 6 of the judgment. In paragraph 6 of the judgment of the Industrial Court, the Court has initially commenced the discussion by referring to the submission of Counsel appearing on behalf of the Respondent- Undertaking which had filed the appeal before the Industrial Court. The Industrial Court thereafter, referred to the findings contained in paragraphs 7 and 8 of the judgment of the Labour Court. For 4 reversing the findings of the Labour Court, the only discussion on the issue of perversity is contained in the following extract : “However, it is evidence of the abovesaid witnesses suggested; otherwise both the eye-witnesses have made categorical statements. They are also discussed by the Enquiry Officer.” There is thereafter, a discussion on the past record and the Industrial Court has held that the conclusion which was arrived at by the Enquiry Officer was supported by the evidence of eye-witnesses. The Industrial Court was seized of an appeal against the order of the Labour Court. The Labour Court had come to the conclusion that the finding which was recorded in the enquiry was perverse. There is merit in the submission which was urged on behalf of the Respondent that even if the findings were to be perverse, an opportunity was required to be given to the employer to lead evidence to substantiate the charge of misconduct and the Labour Court manifestly erred in directing reinstatement with back wages and 5 continuity of service straightaway at that stage. In view of the aforesaid submission, one of the courses of action that was open to this Court was to remit the proceedings to the Labour Court, to permit the Respondent-Undertaking to substantiate the charge of misconduct by leading evidence. However, Counsel appearing on behalf of the Undertaking is justified in submitting that before that stage arises, the Undertaking would be entitled to challenge the finding on perversity before the appropriate forum. Unfortunately, the judgment of the Industrial Court does not contain any cogent reasons at all on the basis of which, it can be concluded that the Industrial Court reversed the finding of the Labour Court that the finding of the Enquiry Officer was perverse. Whether or not the finding of perversity could be sustained, would have to be decided on the basis of the evidence which emerged during the course of enquiry. This was a jurisdiction which the Industrial Court was required to exercise while deciding the appeal. Evidently, the brief discussion in paragraph 6 of the impugned judgment does not contain any cogent reasons at all. 6 In these circumstances, it would be appropriate and proper if the proceedings are remitted back to the Industrial Court for a fresh decision on the appeal. All the observations contained in the present order are only in support of the conclusion of this Court that there was no discussion at all by the Industrial Court and they shall not be construed as any expression of opinion, one way or the other, by this Court on the issue as to whether the finding on the issue of perversity was justified, or otherwise. In the circumstances, the petition is allowed in the following terms: (i) The impugned judgment and order of the Industrial Court dated 5th September 2005 is quashed and set aside with a view to facilitate a fresh determination of the appeal; (ii) Appeal 6 of 2005 is restored to the file of the Industrial Court; (iii) All the rights and contentions of the parties on the merits of the appeal, including on the question of perversity as well as on the 7 quantum of punishment are kept open to be decided by the Industrial Court; (iv) Parties shall appear before the Industrial Court for receiving directions on 21st July 2008, so that a time schedule can be fixed for the disposal of the appeal; (v) The Industrial Court may endeavour to expeditiously dispose of the appeal. The petition shall stand disposed of in the aforesaid terms. There shall be no order as to costs. .....