WP/2618/1999 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2618 OF 1999 Anthony Francis Pereira ... Petitioner V/s. Peico Electronics & Electricals Ltd., Pune & Anr. ... Respondents Ms. N.D. Buch for the Petitioner. Mr. K.S. Bapat for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 20 TH JANUARY, 2011. PRONOUNCED ON : 9 TH FEBRUARY, 2011. JUDGEMENT : 1. By this Writ Petition the petitioner has challenged the Award Part II dated 20th June, 1998 passed by the Labour Court, Pune in Reference (IDA) No.284 of 1992. The Labour Court has rejected the Reference and hence the present Petition. 2. The petitioner was appointed as a “Driver” of the respondent No.1- Company from December, 1976. He was required to drive the Company’s Bus in which the workmen were brought to the premises of the respondent No.1- Company every day. The petitioner was issued a charge sheet on 12th June, 1989. It was alleged that on investigations carried out by the respondent No.1-Company it was revealed that the petitioner had tampered/interpolated a Medical Certificate issued to him by the Panel Doctor in order to avail of leave from 24th WP/2618/1999 2 April, 1989 to 8th May, 1989. The respondent No.1-Company, therefore, alleged that the petitioner had committed acts of gross misconduct under Clauses 24(d) and 24(l) as specified in the Certified Standing Orders applicable to the respondent No.1-Company. These Certified Standing Orders read as under : “24(d). Theft, fraud or dishonesty in connection with the employer’s business or property or the theft of property on another workman within the premises of the establishment; 24(l). Commission of any act subversive of discipline or good behaviour on the premises of the establishment.” 3. The petitioner denied the charges levelled against him in his reply dated 17th June, 1989. A fresh charge sheet was issued to the petitioner in which it was alleged that he was absent without leave from 10th June, 1989 to 21st June, 1990. He was, therefore, charged with having committed acts of misconduct under Clauses 24(f) and 24(l) of the Certified Standing Orders i.e. for absence without leave and for committing an act subversive of discipline or good behaviour on the premises of the establishment. Enquiries were held in respect of the charges levelled against the petitioner in both the charge sheets issued against him. The Enquiry Officer found the petitioner guilty and submitted a report accordingly. The report was accepted by the respondent No.1-Company and the petitioner was dismissed from service on 24th March, 1992. 4. Being aggrieved by the order of dismissal, the petitioner raised an industrial dispute which was referred for adjudication before the Labour Court, Pune, being WP/2618/1999 3 Reference (IDA) No.284 of 1992. In his statement of claim, the petitioner pleaded that the enquiries conducted against him were vitiated as the principles of natural justice had not been followed. The petitioner also pointed out the perversity of the findings recorded by the Enquiry Officer. It was then pleaded that the petitioner had been dismissed only because he was an active member of the Trade Union representing the workmen of the respondent No.1-Company. The petitioner, therefore, claimed that he was entitled to reinstatement with continuity of service and back-wages. 5. A written statement was filed by the respondent No.1-Company denying the allegations contained in the statement of claim. The procedure followed in the Company for granting leave was mentioned in the written statement. The respondent No.1-Company contended that the petitioner had committed serious acts of misconduct and, therefore, was not entitled to the relief sought by him. 6. By Award Part I, which was passed on 16th October, 1995, the Labour Court concluded that the enquiries instituted against the petitioner were vitiated. The Labour Court found that the enquiries were completed hastily, without affording a proper opportunity to the petitioner to meet the charges levelled against him. 7. The parties agreed that the evidence of all the other witnesses examined before the Enquiry Officer except for the evidence of Dr. Upadhye could be read as evidence led before the Labour Court. Thus, only Dr. Upadhye who had issued the Medical Certificate to the petitioner and the petitioner himself were examined WP/2618/1999 4 before the Labour Court. The depositions of the other witnesses examined before the Enquiry Officer were read as evidence in the Reference, although the enquiry in respect of the charge sheet dated 2nd August, 1990 was conducted ex-parte. 8. In his evidence, Dr. Upadhye has stated that he had issued a Medical Certificate dated 24th April, 1989 in favour of the petitioner because he was suffering from body-aches. He has stated that he had not mentioned the date on which the petitioner could resume duty i.e. the fitness certificate had not been issued by him. He has also deposed that there was a dispute between himself and the petitioner as to whether the fitness certificate could be issued for a couple of days or not, when he had to rush home from his dispensary to tend to his ailing father. Thereafter, the certificate was given to the petitioner by his compounder. However, the Doctor has testified that the date of fitness mentioned in the original certificate was not written either by him or by his compounder. The Doctor has further deposed that he learnt that the fitness certificate had been collected by the petitioner without the date of fitness being mentioned in the certificate. This witness, however, has stated that he could not state with any certainty that the date of fitness inserted in the Medical Certificate was in the handwriting of the petitioner. The Welfare Officer Mr. P.V. Naik was examined before the Enquiry Officer and his deposition has been read as evidence led before the Court, by consent of the parties. This witness has elucidated the procedure for availing of leave, sick leave and special leave. He has further stated that the petitioner had submitted an application along with his Medical Certificate to avail of special WP/2618/1999 5 leave under a welfare scheme in existence in the respondent No.1-Company. The witness has further deposed that when he scrutinized the leave application of the petitioner, he realized that the fitness certificate had been issued for a period longer than the normal and, therefore, he questioned Dr. Upadhye about the issuance of such a certificate. He learnt from the Doctor that the letter had not mentioned the date on which the petitioner would be fit to resume duty and it is in these circumstances he had inferred that the petitioner had interpolated the date in the Medical Certificate. The copy of the Medical Certificate which was maintained by the Doctor was produced before the Enquiry Officer and it did not bear the date of fitness. The original one submitted by the petitioner indicated that he would be fit to resume duty on 9th May, 1989. 9. The petitioner in his evidence had deposed that after obtaining the Medical Certificate from the Doctor, he submitted the same to his superior, Mr. Gadkari who in turn granted him 6 days sick leave. The rest of the leave was treated as extra ordinary leave i.e. leave without pay. 10. The Labour Court, on a consideration of all the evidence before it, held that the petitioner had committed the acts of misconduct alleged against him and, therefore, denied him reinstatement with continuity of service and full back- wages. The Labour Court accepted the procedure of reading the evidence led in an enquiry which was found to be vitiated, in this Reference itself. This was probably because the petitioner’s Advocate had not objected to such a procedure WP/2618/1999 6 being followed. In respect of the first charge sheet of 12th June, 1989, the Labour Court found that the only logical inference which flowed from the deposition of Dr. Upadhye was that either the petitioner had interpolated the Medical Certificate by inserting the date which he would be fit to resume or had managed to have it done through somebody else. According to the Labour Court, the petitioner had done so in order to secure certain benefits under the welfare medical scheme existing in the respondent No.1-Company. As regards the second charge sheet dated 2nd August, 1990, the Labour Court has held that the petitioner had remained absent from duty without prior sanction for 43 days during the period from 10th June, 1989 to 21st June, 1990. His absence had hampered the work of the respondent No.1-Company. This was because the petitioner worked as a “Driver” for transporting the staff of the respondent No.1-Company to the factory premises from their residences in various parts of the city of Pune. 11. In respect of the first charge sheet Ms. Buch, the learned Counsel appearing for the petitioner, submitted that the inference drawn by the Labour Court that the petitioner had interpolated the Medical Certificate was not based on the evidence on record. She submitted that the Medical Certificate was collected by the petitioner from the compounder of Dr. Upadhye. According to her, there is no material on record to indicate that it was the petitioner who had inserted the date of fitness in the Medical Certificate. She submitted that the respondent No.1- Company had not cared to establish this fact by examining a handwriting expert. She submitted that the compounder who handed over the Medical Certificate to WP/2618/1999 7 the petitioner was not examined by the respondent No.1-Company. Therefore, the charge of interpolation against the petitioner had not been proved adequately, according to Ms. Buch. She then submitted that the petitioner was sanctioned leave by Mr. Gadkari who accepted the Medical Certificate. She pointed out that the petitioner had not benefited in any manner even if it were to be assumed that he had written the date of fitness. She pointed out that for the period from 24th April, 1989 to 8th May, 1989, the petitioner was granted 6 days sick leave and the balance was treated as leave without pay. She submitted that the petitioner had been charged with a serious act of misconduct of interpolation of the Medical Certificate which amounted to fraud or dishonesty in connection with the employer’s business or profit and for committing an act subversive of discipline or good behaviour. According to Ms. Buch, such a charge ought to have been proved to the hilt as the petitioner would stand to loose his livelihood, thus entailing civil consequences for him. 12. Mr. Bapat, the learned Advocate for the respondent No.1-Company, on the other hand, submitted that the Labour Court has drawn proper and legal inferences from the evidence on record. He submitted that the Labour Court has arrived at a possible conclusion which need not be disturbed. He submitted that the powers of this Court while deciding a Writ Petition under Article 227 of the Constitution of India cannot be equated with the appellate jurisdiction of this Court where the evidence led before the lower court can be reassessed. The learned Advocate then submitted that there is sufficient material on record to WP/2618/1999 8 indicate that neither the Doctor nor the compounder had inserted the fitness date in the Medical Certificate. According to him, it could have been done only by the petitioner who would stand to gain by such a date being mentioned. He drew my attention to the procedure for granting leave as detailed in the evidence of Mr. P.V. Naik and submitted that the intention of the petitioner was to avail of special leave in order to extract 80% of the wages payable for those days. He submitted that the Labour Court has not committed any error by concluding that the petitioner had, in fact, interpolated the Medical Certificate. 13. Out of the several types of leave available to the workmen employed in the respondent No.1-Company, they were entitled to sick leave for 15 days in a year. The workmen were entitled to full wages for this period. In case a workman wanted to avail of additional leave on account of his sickness, he was entitled to 41 days special leave for which period he was paid 80% of his wages. There is evidence on record which indicates that a Panel Doctor could issue a Medical Certificate indicating the date on which the sickness arose as also the date on which the workman would be fit to resume duty if such fitness date was within a period of 2 - 3 days from the date of the sickness. In case the workman did not recover, he was expected to be reexamined by his Doctor who would then be required to issue a fresh certificate indicating the date on which the workman would be fit to resume work in case it was within 2 or 3 days of such certificate being issued. However, in case a workman had availed of his sick leave of 15 days in a year and required additional leave on account of an illness, he was entitled to WP/2618/1999 9 apply for the same. This additional leave which was “special leave” could be granted under the welfare scheme available in the respondent No.1-Company on condition that a Doctor certified that the workman required leave on account of his illness for that duration. Any period which was less than 6 days would not be treated as special leave. Consequently a workman would not be entitled to the benefits of 80% of his wages if he was on special leave for less than 6 days. When the petitioner sought leave on 24th April, 1989, he had availed of 9 days sick leave. Therefore, he had 6 days to his credit. According to the respondent No.1- Company, the petitioner inserted the fitness date to include these 6 days and an additional period of 6 days in order to avail of the special leave under the welfare scheme. 14. It must be noted here that the evidence on record indicates that when a workman desired to avail of sick leave, he was expected to apply for the same together with a Medical Certificate. His superior then sanctioned or rejected the leave. In case such leave was sanctioned, the application was sent to the Welfare Officer who then scrutinized the application to ascertain whether the workman was entitled to the benefits of the Welfare Scheme in as much as the special leave. The petitioner’s leave in the present case had been sanctioned by Mr. Gadkari who was his superior as he had 6 days sick leave to his credit. The application was sent to the Welfare Officer, who claimed to have found the insertion of the fitness date in the Medical Certificate and, therefore, the special leave was denied to the petitioner and, instead, he was granted leave without pay for that period. The WP/2618/1999 10 contention of the respondent No.1-Company was that the workman had interpolated the Medical Certificate and that such a charge was a grave act of misconduct. It is not possible to accept the contention as the leave was sanctioned for part of the period on the basis of this Medical Certificate. If there was indeed some interpolation which had been carried out by the petitioner, then the entire Medical Certificate ought to have been rejected. The evidence on record indicates that 6 days sick leave at a stretch could be granted only when a Medical Certificate indicating the workman’s fitness to resume duty was furnished at the end of the period of the leave. If the fitness date was mentioned in the Medical Certificate, the leave which could be granted was only for 2 to 3 days from the date of sickness. 15. In the present case, the respondent No.1-Company chose to split the Medical Certificate into two periods namely (i) the duration for which it accepted the contention that the petitioner would be fit enough to resume duty 6 days after 24th April, 1989 and (ii) the period for which it did not accept the Medical Certificate indicating that the petitioner would be fit to resume duty on 9th May, 1989. Such a procedure is unacceptable. The Medical Certificate ought to have been accepted in toto or not at all. When a Medical Certificate is issued, the employer cannot accept it or reject it in parts. The employer cannot contend that he would accept the Medical Certificate for the date of commencement of the leave only. WP/2618/1999 11 16. The question which now arises is whether the petitioner could have interpolated the Medical Certificate. There is no direct evidence at all on record indicating that the petitioner had done so. The Doctor denied having written the date of fitness personally and also denied that his compounder had written it. At the same time he has stated that he was unaware as to whether the petitioner himself had written it. Since there was no direct evidence of the petitioner having interpolated or inserted the date of fitness, it would have been apposite for the respondent No.1-Company to examine a handwriting expert to verify whether the petitioner had done so. According to Mr. Bapat, the circumstantial evidence on record pointed to the petitioner having committed the act of misconduct and, therefore, the evidence of the handwriting expert was not necessary. He further submitted that even assuming the handwriting expert had stated that it was not the writing of the petitioner, in all probability the petitioner could have had the date inserted by somebody else. This submission cannot be accepted as the charge against the petitioner is specific. The charge is that he, on his own, had interpolated the document and not that he had requested somebody else to do it for him. In these circumstances, in my opinion, the evidence of the handwriting expert was necessary. Thus, there is no evidence incriminating the petitioner. 17. It is true that in a domestic enquiry it is necessary to ascertain whether there is a preponderance of probabilities of the delinquent workman having committed the misconduct. When the charge is being proved before the Labour Court because of a defective enquiry, in my opinion, the standard of proof WP/2618/1999 12 required would be higher though not to the extent required in criminal proceedings. The Labour Court, unfortunately in the present case, has proceeded on the assumption that it could only have been the petitioner who could have committed the act of insertion of the date because he would have benefited from this act, monetarily. This conclusion also is not correct. The petitioner could have benefited had he ensured that he had obtained a Medicate Certificate for 6 days without inserting the fitness date. Had the petitioner been inclined to be dishonest, he would not have mentioned the fitness date in the Medical Certificate. Instead, he would have procured certificates after certificates from the Doctor, covering the 6 days after which he would have been entitled to special leave under the scheme applicable. Furthermore, there is evidence on record that no monetary benefit had accrued to the petitioner on account of this Medical Certificate. In fact, though he had been granted sick leave for 6 days, the rest of the period has been treated as leave without pay. In my opinion, therefore, the charge contained in the charge sheet dated 12th June, 1989 has not been proved. 18. The second charge sheet issued to the petitioner on 2nd August, 1990 is in respect of habitual absence without leave. The Labour Court has held that this absence of the petitioner had hindered the working of the respondent No.1- Company because its staff was unable to report for duty in time when the petitioner was absent. This was because the petitioner was engaged as a “Driver” of the vehicle used for transporting the members of the staff of the respondent No.1-Company to the factory premises from various parts of the city. Ms. Buch has WP/2618/1999 13 pointed out that the charge against the petitioner was habitual absence for 43 days during the period of two years i.e. in 1989 and 1990. She submitted that when it is necessary to ascertain whether the workman is absent without leave, his absence during a calendar year has to be reckoned and not the absence in any 12 months of the year, as has been done in the present case. According to her, the petitioner had not committed the misconduct of habitual absence without leave and therefore the order of dismissal must be set aside. She further submitted that assuming it is held that the misconduct has been committed by the petitioner, the punishment of dismissal is not warranted in this case. She pointed out that the petitioner had worked with the respondent from 1976 onwards till he was dismissed from service in 1992. According to her, the petitioner had an unblemished service record and, therefore, this fact would be a mitigating factor while considering the punishment to be imposed on the workman. 19. It appears that both the parties before the Labour Court were more concerned about the first charge sheet and have not really dealt with the issue as to whether the misconduct alleged in the second charge sheet has been proved. It must be remembered that the enquiry in respect of this charge sheet had been vitiated as the Labour Court had found that the petitioner had not been afforded an opportunity to defend himself in the enquiry which had proceeded ex-parte. As mentioned earlier, parties agreed that the evidence led before the Enquiry Officer in both the enquiries should read as their depositions before the Labour Court. Surprisingly, the petitioner did not choose to cross-examine the witness who had WP/2618/1999 14 been examined to prove the charge of habitual absence. From the evidence of this witness, the Labour Court has concluded that the workman was absent for the days mentioned in the charge sheet i.e. for 43 days during the period 11th June, 1989 to 21st June, 1990. The workman was charge sheeted under the Certified Standing Orders of the Company. These Certified Standing Orders have not been placed on record. There is no material on record to indicate as to how the term “habitual absence” has been explained in the Certified Standing Orders. In the Model Standing Orders framed under the Industrial Employment [Standing Orders] Act, 1946, the legislature has deemed it necessary to explain that no act of misconduct which is committed on less than three occasions within the space of one year shall be treated as “habitual”. However, it appears that even if one considers the explanation for the term “habitual”, as contained in the Model Standing Orders, the workman has committed the act of misconduct alleged against him. The charge sheet very clearly mentions the dates on which the workman was absent in each month i.e. in June, July, August and October in the year 1989 and in February, March, April, May and June in the year 1990. On each occasion he was absent for periods varying from 1 to 8 days. The witness, Thakur, who was examined to prove this charge, has not been cross-examined by the petitioner. The evidence of this witness was not controverted although the petitioner examined himself before the Labour Court. In fact, he has not denied the allegations contained in the charge sheet at all in his deposition before the Court. The Labour Court, in my opinion, was right in accepting this evidence and WP/2618/1999 15 concluded that the workman was habitually absent. 20. The question still remains as to whether the workman should be dismissed from service for habitual absence. 21. It appears that the Company had not produced the past service record of the workman before the Court, probably because there was nothing to complain about. The Labour Court has confirmed the dismissal order on the ground that the absence of the workman had caused great prejudice to the respondent-Company as the Company staff was not able to report for duty in time, the