1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.2346 OF 1994 The Maharashtra State Farming Corporation Ltd., Haregaon Farm, Tq. Shrirampur, Dist. Ahmednagar, Through its Manager Shri. Zakaria Shouqi ...Petitioner. Versus Purushottam Namdeo Gaikwad, Age Major, R/o. Haregaon, Tq. Shrirampur, Dist. Ahmednagar. ...Respondent. Shri. R.N.Dhorde, Advocate for petitioner. Shri. V.N. Upadhye, Advocate of respondent. CORAM : R.K. DESHPANDE, J. Date of reserving the judgment : 16th July 2010. Date of pronouncement : 21st July 2010. ORAL JUDGMENT : 1. This writ petition is preferred by the employer, challenging the judgment and order dated 2.3.1994, passed by the Industrial Court, Ahmednagar, partly allowing the Appeal (IC) No. 5/1993, by setting aside the judgment and order passed by the 2nd Labour Court, Ahmednagar in Application No. (BIR) No. 15/1984. The Labour Court had dismissed the Application No. (BIR) No. 15/1984, filed under Section 78 of the Bombay Industrial Relations Act, 1946, challenging his dismissal from service and 2 for reinstatement and continuity of service with backwages, filed by the respondent/employee. The Industrial Court reversed the said judgment and order, by setting aside the order of dismissal dated 12.10.1983, and granting reinstatement to the respondent with continuity in service in the post of Mukadam, with half backwages till the date of reinstatement. 2. The respondent was employed in the service of petitioner since 1964 and he was promoted to the post of Mukadam on 21.9.1980. An enquiry was conducted against him, on the charge of outraging the modesty of the 14 years old daughter of one Ruptakke, the another employee of the petitioner corporation, on 13.4.1983. A criminal prosecution was also initiated against the respondent vide Criminal Case No. 1288/1983. By the order dated 12.10.1983, the respondent was dismissed from service as the charge against him was held to be established. However, the criminal prosecution, resulted in his acquittal. 3. The respondent filed an Application (BIR) No. 15/1984 before the Labour Court at Ahmednagar, challenging his dismissal. The Labour Court decided the said application by its judgment and order dated 16th of April, 1983. It was held that the respondent failed to prove that the enquiry conducted against him was illegal, improper and against the principles of natural justice. It was further held that the respondent failed to prove that the punishment imposed upon him was harsh and disproportionate. The claim for reinstatement and backwages was, thus, rejected by dismissing the said application. 3 4. The respondent/employee preferred an appeal under Section 84 of the Bombay Industrial Relations Act, which was registered as Appeal (IC) No. 5/1993. It was held that the appeal was not maintainable against the finding recorded by the Labour Court that the respondent/employee had failed to prove that the inquiry conducted against him was illegal, improper and against the principles of natural justice. However, it was held that the respondent had proved that the punishment imposed upon him was harsh and disproportionate. The Industrial Court took into consideration the fact that the respondent was acquitted in criminal case by the judgment and order dated 29.11.1983 and the Labour Court failed to give due weightage to the said acquittal. On these findings, the Industrial Court set aside the judgment and order passed by the Labour Court and granted reinstatement with continuity in service and half backwages, till the date of reinstatement. The employer has challenged this judgment and order passed by the Industrial Court. 5. Shri. Dhorde, the learned counsel appearing for the petitioner, has urged that the Industrial Court has committed an error of jurisdiction in holding that the punishment of dismissal imposed upon the respondent/employee was harsh and disproportionate to the charge of misconduct, particularly when, it concurred with the finding of the Labour Court that the respondent/employee had failed to prove that the enquiry conducted against him was illegal, improper and against the principles of natural justice. Shri. Dhorde has urged that the only basis for taking the aforesaid view by the Industrial Court was, the acquittal of the respondent by the Criminal Court. According to him, even if, the respondent was 4 acquitted by the Criminal Court, that does not preclude the employer from taking action, if it is otherwise permissible. He has relied upon the decision of the Apex Court reported in 2005 (7) SCC 764 in the case of Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corpn. Ltd., Laldia and others, to point out the relative scope of the departmental/domestic enquiry and the criminal trial. It has been held that the acquittal by the Judicial Magistrate does not ipsofacto absolve the employee from the liability under the disciplinary jurisdiction of the corporation. He further relied upon the Division Bench judgment of this Court reported in 2009 (2) ALL MR 844; Shri. Manik S. Mali Vs. Union of India & Anr., to urge that the strict proof is not necessary to punish the delinquent in departmental proceedings. 6. Shri. Upadhye, the learned counsel appearing for the respondent/employee has urged that due weightage has to be given to the acquittal of an employee by the Criminal Court in respect of the same charge and the Industrial Court was, therefore, right in holding that the Labour Court had failed to take into consideration the judgment of the Criminal Court. He supported the finding of the Industrial Court and urged for maintaining the same. He has urged that the finding of fact is recorded by the Industrial Court and the same would not normally be interfered with in writ jurisdiction under Articles 226 and 227 of the Constitution of India. 7. After going through the orders passed by both the Courts below, it is apparent that the respondent/employee has failed to establish that the enquiry conducted against him was illegal, improper and against the principles of natural justice. The Labour Court has taken into consideration 5 the acquittal of the respondent in criminal case. It was urged before the Labour Court that the acquittal of the respondent/employee by the Criminal Court was on merits of the matter and not on technical grounds. It was also held that the misconduct proved against the respondent, was committed within the premises of the undertaking and the gravity of the charge is apparent. The contention of the respondent/employee that the acquittal was on merits and not on technical grounds, was rejected. 8. The only ground on which the Industrial Court has reversed the finding of the Labour Court is that the Labour Court has failed to take into consideration the acquittal of the respondent from criminal prosecution, which is factually incorrect. The Labour Court has discussed the matter in length and has recorded the finding. The Industrial Court has also not held that the finding that the charge was proved in the departmental enquiry against the respondent/employee, is perverse. The gravity of the charge is apparent and once it is held to be proved, no leniency can be shown in awarding the punishment. The Industrial Court has failed to discuss, as to how the punishment imposed is disproportionate to the act of the misconduct. The judgments relied upon by Shri. Dhorde cited supra clearly supports the proposition that the acquittal of respondent/employee in criminal case does not preclude the employer from taking action in respect of the same charge, if it is otherwise permissible. In view of this, the Industrial Court has exceeded its jurisdiction in interfering with the findings of Labour Court which is based on valid consideration. The judgment and order passed by the Industrial Court cannot be sustained. The same is, therefore, liable to be quashed and set aside by restoring the 6 judgment and order passed by the Labour Court. 9. In the result, the instant writ petition is allowed. The judgment and order dated 2.3.1994 passed by the Industrial Court, Ahmednagar in Appeal (IC) No. 5/1993 is hereby quashed and set aside and the judgment and order passed by the Labour Court on 16.4.1993 in Application (BIR) No. 15/1994 is restored. There shall be no order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp2346.94