1 W.P.No.3034/1999 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3034 OF 1999 1. Smt.Indubai Dhondiram Suryawanshi & ors. ... Petitioners v/s 1. The Chairman, Dudhaganga Sah. Dairy Society Ltd., Kagal, Dist. Kolhapur & anr. ... Respondents Mr.K.S.Bapat for the petitioners. Mr.P. U. Badadare i/by Mr.P.R.Arjunwadkar for respondent Nos.1 and 2. CORAM: SMT.NISHITA MHATRE, J. DATED: 14TH JULY, 2010 ORAL JUDGMENT: 1. The petition has been filed by the heirs of the workman Dhondiram Suryawanshi, who was employed with the respondent Nos.1 and 2, (for short “the respondents”). The orders of the Labour Court in Complaint (ULP) No. 120 of 1996 as well as the Industrial Court in Revision Application (ULP) Nos.423 of 1995 and 435 of 1995 have been challenged in this Writ Petition. The Labour Court, while 2 W.P.No.3034/1999 deciding the complaint of the workman filed under Section 28 read with Item 1(a), (b), (d), (f) and (g) of Schedule IV of the M.R.T.U. & P.U.L.P. Act, has held that he was guilty of the misconduct alleged against him. However, the Labour Court has reduced the punishment and directed the respondents to reinstate him with continuity of service. However, back wages were denied in view of the misconduct committed. 2. The workman as well as the respondents filed revision applications before the Industrial Court being aggrieved by the order of the Labour Court. The Industrial Court has dismissed both the revision applications. 3. During the pendency of the revision applications before the Industrial Court, the workman expired. His heirs had been brought on record before the Industrial Court. They have filed the present petition contending that finding of the Labour Court that the workman had committed acts of misconduct is erroneous. They have further contended that the deprivation of back wages is contrary to law and perverse. 4. The undisputed facts in the present case are as follows:- 3 W.P.No.3034/1999 The workman joined service with respondents in the year 1963. He was charge-sheeted on 20.3.1985. The charges levelled against him were, (i) misappropriation of Rs.1,300/- obtained by the sale of tarpaulin; (ii) insubordination and indiscipline (iii) submission of bogus travelling bills; and (iv) selling materials and scraps from the traffic section and causing loss to the Dairy. 5. The workman replied to the charge-sheet and denied the charges levelled against him. The enquiry officer found the workman guilty in an enquiry held against him by respondent Nos.1 and 2. The workman was then dismissed on 30.4.1986. 6. The workman filed a complaint being Complaint (ULP) No.120 of 1986 before the Labour Court alleging that unfair labour practices had been committed by the respondents under the aforesaid items of the M.R.T.U. & P.U.L.P. Act. Respondent Nos.1 and 2 filed their written statement contending that the workman was guilty of various acts of misconduct. It was further contended that the enquiry held against the workman was fair and proper and that the inferences drawn by the enquiry officer were correct. They therefore pleaded that the dismissal order was legal and 4 W.P.No.3034/1999 valid and no unfair labour practices had been committed by them. 7. The fairness and the propriety of the enquiry held against the workman was considered as a preliminary issue. The Labour Court held that the enquiry was not fair and proper and that the findings of the enquiry officer were perverse. Respondent Nos.1 and 2 therefore led evidence before the Labour Court in order to establish the charges levelled against the workman. Respondent Nos.1 and 2 examined their Manager, the Government Auditor and the Chairman of the Society. The workman also examined himself before the Labour Court to refute the charges. 8. The Labour Court after appreciating the evidence on record held that the charges had been proved against the workman. The Labour Court was of the view that the workman was guilty of the charge of “misappropriating the tarpaulin” which was worth Rs.1375/-. It also concluded that the workman had submitted bogus bills indicating travelling expenses. The Labour Court considered the fact that the workman had completed more than nine years of service and, therefore, granted reinstatement with continuity of service but denied him back wages. 5 W.P.No.3034/1999 9. I have perused the evidence of the parties recorded before the Labour Court with the assistance of the learned advocates. In my opinion, the Labour Court has completely erred in concluding that the workman was guilty of any misconduct. The first charge as to whether the workman had misappropriated Rs.1375/- which was the cost of the tarpaulin sheet, has not been established. According to respondent Nos.1 and 2, the stock register maintained by them indicate that there were four sheets of tarpaulin. One sheet was damaged in 1980. Another sheet was missing from 1982 and only two sheets remained with respondent Nos.1 and 2. According to respondent Nos.1 and 2, the tarpaulin sheet which was missing was on the hood of their truck which was sold in a public auction. The respondents claim that the tarpaulin sheet was removed from the premises by the workman acting in connivance with the auction purchaser. The Labour Court found that had the workman erroneously not removed the tarpaulin sheet from the hood of the truck, he would have certainly requested the auction purchaser to return the tarpaulin sheet to respondent Nos.1 and 2. The Labour Court has concluded that since no efforts were made by the workman to recover the sheet, it indicated that he was guilty of the misconduct alleged against him. 6 W.P.No.3034/1999 10. In my view, this finding of the Labour Court is unsustainable. There is nothing on record in the evidence led before the Labour Court to suggest that the workman was aware that the tarpaulin sheet was on the hood of the truck or that he had in any manner acted in connivance with the auction purchaser to remove the tarpaulin sheet from the factory premises. Significantly, respondent Nos.1 and 2 have not taken action against the auction purchaser to recover the tarpaulin sheet from him. The evidence on record belies the allegation made against the workman. Respondent Nos.1 and 2 have not been able to establish this charge levelled against the workman and, therefore, the findings recorded by the Labour Court are incorrect. 11. As regards the charge with respect to the submission of bogus travelling bills, in my opinion, it has not been proved. The manager who was examined, has stated that the workman had submitted a claim for travelling expenses for certain days. However, the rickshaw driver has collected the amount from Kolhapur branch. It is in these circumstances that the charge levelled against the workman has been held to be proved. Respondent No.1 who was examined before the Court has not stated anything about the charge regarding the bogus travelling bills. An allegation is made in this regard only by the Manager. The travelling expenses bills were 7 W.P.No.3034/1999 submitted by the workman some time between 1982 and 1984. Admittedly, this Manager who was examined, was appointed in the year 1992 and had no personal knowledge of the incident. In these circumstances, in my opinion, this charge levelled against the workman is extremely tenuous. 12. In respect of the other charges of refusing to perform duties, causing loss to the Society by not selling the scrap, etc. no details of the charges have been mentioned. This fact has been admitted by the manager. In my view, therefore, the findings of the Labour Court that the charges have been proved are unsustainable. 13. The Industrial Court has also erred in dismissing the revision application filed by the concerned workman. 14. In these circumstances, the petition is allowed. 15. The orders of the Labour Court and the Industrial Court are set aside. 16. Rule made absolute. No order as to costs. 8 W.P.No.3034/1999 17. The workman concerned ought to have been reinstated in service with continuity and with full back wages and all other consequential benefits. Since the workman has expired, the workman’s heirs and representatives, who are the petitioners herein, would be entitled to the back wages and all other consequential benefits which the workman would have been paid had he been alive. These amounts shall be paid to the petitioners within eight weeks from today. .....