W.P.No.2026.98 1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2026 OF 1998 C. L. Johny ... Petitioner v/s 1. M/s.Zenith Ltd. 2. H.N.Singh 3. ISI Bar Ltd. ... Respondents Ms Seema Sarnaik for the petitioner. None present for the respondents. CORAM: SMT.NISHITA MHATRE, J. JUDGMENT RESERVED ON 15.02.2011 JUDGMENT PRONOUNCED ON 11.03.2011 ORAL JUDGMENT: 1. The orders impugned in this petition have been passed in Complaint (ULP) No.248 of 1992 and Revision Application (ULP) No.80 of 1997. The Labour Court has dismissed the complaint filed by the petitioner under Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (in short, the MRTU & PULP Act). The Industrial Court has confirmed the order passed by the Labour Court in the revision application. W.P.No.2026.98 2 2. Brief facts giving rise to the petition are as follows:- The petitioner was appointed with respondent No.1 Company (hereinafter referred to as, the Company) in the Control Department with effect from 11.12.1970. He was promoted as a Skilled Operator “D” Grade. In 1981 he was transferred to the Works Shop Department. Two years later in 1983, he was directed to operate the crane in the Rolling Mill Department. From the record it appears that the Company had no reason to complain about the petitioner’s performance at work and in fact the petitioner was given two increments in 1988. He was working on the crane installed in the Rolling Mill and Warehouse Departments. 3. According to the petitioner, on 26.3.1991, he reported for duty as usual. He was operating the crane when at around 12 noon there was some mechanical and electrical failure in the equipment. According to the petitioner, the limit switch which controls the vertical movement of the crane failed. As a result, the rope wire broke and the switch block and hook fell down. He immediately reported the incident to the mechanical and electrical department. 4. A show cause notice was issued to the petitioner on W.P.No.2026.98 3 1.4.1991 in which he was asked to explain why action should not be taken for his gross negligence and carelessness in operating the crane. The explanation furnished by the petitioner was not found to be satisfactory and, therefore, a charge-sheet was issued to him on 13.4.1991. He was charged under the Certified Standing Orders under Standing Orders 26(m) – Habitual neglect of work or gross or habitual negligence, and 26(q) – Wilful damage to work in process or to any property of the establishment. An enquiry was conducted against the petitioner in which three employees of the Company were examined. The petitioner found that the enquiry officer was biased. However, the petitioner continued to attend the enquiry. The enquiry officer found the petitioner guilty of the misconduct alleged against him and submitted his report accordingly. The company then acted upon the enquiry report and dismissed the petitioner from service by an order dated 14.9.1992. 5. Aggrieved by the decision of the Company to dismiss him from service, the petitioner filed Complaint (ULP) No. 248 of 1992. The Labour Court by its order dated 1.9.1997 found that the enquiry held against the petitioner was fair and proper. It further concluded that the findings recorded by the enquiry officer were not perverse. Thereafter the Labour Court by its order dated 9.1.1997 considered whether W.P.No.2026.98 4 the punishment imposed on the petitioner was shockingly disproportionate. It was held that considering the gravity of the misconduct, the punishment could not be said to be disproportionate. However, the punishment of dismissal was converted to one discharge. The Labour Court also concluded that since the petitioner was working as an agent for the Life Insurance Corporation, he was not entitled to reinstatement with continuity of service and full back wages. 6. The petitioner, being aggrieved by the order of the Labour Court, preferred Revision Application (ULP) No.80 of 1997. By this order, the Industrial Court held that the petitioner had not made out any case for it to set aside the order of the Labour Court, concluding that the enquiry was held in conformity with the principles of natural justice and fair play and that the misconduct had been proved. 7. This petition was adjourned on several occasions because nobody appeared for the respondents. The petitioner was permitted to amend the writ petition and to bring on record M/s.ISI Bar Limited, as according to the petitioner, the rolling mills department of respondent No.1 had been transferred to the M/s.ISI Bar Limited. Despite the matter being adjourned on several occasions, in order to ensure that the Company was represented, nobody appeared W.P.No.2026.98 5 for either respondent No.1 Company or respondent No.3 M/s.ISI Bar ltd. In fact, on 31.3.2001 as directed, a notice was again issued to the advocate for respondent Nos.1 and 2 as well as respondent No.3 M/s.ISI Bar Ltd., which is now known as India Steel Works Ltd. However, nobody from this Company thought it fit to appear before this Court. 8. Ms Sarnaik appearing for the petitioner, submitted that the enquiry instituted against the petitioner was vitiated as it had been conducted in violation of the principles of natural justice. She submitted that the enquiry officer was biased on four counts: (i) that the enquiry officer represented the Company against the workman employed in some other proceedings; (ii) the enquiry proceedings were recorded in English though the enquiry was conducted in Hindi; (iii) the list of witnesses and documents were not advanced to the petitioner; and (iv) the enquiry officer did not bother to inspect the working of the crane by seeing it on the shop floor. She further urged that the findings of the enquiry officer were perverse. According to her, the log-book, which was produced, indicated that the page relating to 26.3.1991 had been torn off. The fault in the limit switch was a electrical failure over which the petitioner had no control and, therefore, it could not be said that the incident had W.P.No.2026.98 6 occurred because of his negligence, urged Ms.Sarnaik. Further, she submitted that one of the witnesses of the Company, Mr.Bansal, had deposed that the wire rope was broken which again pointed to a mechanical failure and, therefore, there could be no negligence on the part of the petitioner. Ms Sarnaik then submitted that the enquiry officer had placed reliance on the evidence of a supervisor who was on probation at the enquiry. According to her, considering the status of that witness it would be obvious that he would depose at the enquiry as directed by the Company. She pointed out that there were no eye witnesses to the incident. She submitted that the inspection of the condition of the crane on 26.3.1991 had revealed that it was an electrical and mechanical failure which caused the hook to fall as a result of the broken rope wire. The learned advocate therefore urged that the order of dismissal should be set aside. 9. In my opinion, the submissions of Ms Sarnaik that the enquiry officer was biased and, therefore, there was a violation of natural justice and fair play, is unsustainable. The Labour Court has considered the fact that the petitioner was extended all possible facilities and opportunities to defend himself. On consideration of the observations of the W.P.No.2026.98 7 Labour Court, I find that there is no need to interfere with the findings of the Labour Court that procedurally the enquiry held against the petitioner was fair and proper. 10. As regards the perversity of the findings of the enquiry officer, the Labour Court has concluded that there was no material on record to indicate that the findings were perverse. The Labour Court held that since it could not sit in appeal over the findings of the enquiry officer, the enquiry was not vitiated. 11. The first witness examined at the enquiry was a clerk in the warehouse department. He has admitted that he was not an eye witness to the incident. It was only because the crane had not arrived at the rolling mill warehouse at the expected time that he checked what had happened. It was then that he found that the hook had fallen down. He has further stated that there was no damage to the material of the establishment. The witness had no idea as to whether there was a limit switch for operating the crane. He has further deposed that the crane started working immediately. He has deposed that there was no practice that the operator of the crane had to check the crane after every 15 minutes. This witness has stated that his superiors informed the electrical W.P.No.2026.98 8 and maintenance department on several occasions about the improper care of the crane. The witness further conceded that there was no deliberate act on the part of the petitioner to damage the property of the Company and that the petitioner normally performed his duties sincerely. 12. The second witness examined on behalf of the Company at the enquiry was the Maintenance Engineer, Bansal. He has stated that, after he received the report about the failure of the crane, he inspected it and found that the wire rope was broken. He had directed the workers working under him to replace the same as well as the snatch block. According to him, the crane became operational at 7.00 p.m. on the same day. He has admitted that the limit switch had to be adjusted. 13. The next witness examined for the Company was the Assistant Engineer from the Electrical Maintenance Department. He has described the functions of the limit switch which is provided as a safety device on the crane. This witness has stated that the hook of the crane would not fall off the drum wire rope. He has further stated that if the hook hits any object or the crane is operated incorrectly, the hook may fall off. He has admitted in his cross-examination W.P.No.2026.98 9 that he was on probation and not a permanent employee of the Company. However, in his entire deposition there is no material to indicate that the incident had occurred because of any negligence on the part of the petitioner. 14. Considering the evidence on record, in my view, there is not a single statement made by any of the witnesses examined at the enquiry incriminating the petitioner. All the witnesses have stated that the incident could occur if there was a failure in the electrical and mechanical systems of the crane. The witnesses have however stated that it was the duty of the crane operator to intimate to the Company if the crane was not working properly. Admittedly, the petitioner’s shift on that day started at 8.00 a.m. He had loaded and unloaded of five trucks upto 12.00 noon. It was only thereafter that the incident occurred. Obviously therefore it was an accident because of a mechanical and electrical failure. The Labour Court and the Industrial Court have both committed an error by concluding that the findings of the enquiry officer were not perverse. There is a complete miscarriage of justice in the present case. The petitioner has been found guilty of habitual neglect of work or gross or habitual negligence. There is no material on record to indicate that the petitioner was habitually negligent in his W.P.No.2026.98 10 work or that the incident on 26.3.1991 had occurred because of any gross negligence on his part. Further more, the petitioner had not wilfully damaged any property of the establishment. The hook was damaged when it fell after the wire rope broken. The witnesses have stated that the limit switch failed due to which the hook could have fallen off. In these circumstances, the petitioner could not have been held guilty of wilful damage to the property of the establishment. The findings of the enquiry officer and the Labour Court finding the petitioner guilty of misconduct are perverse. 15. In my view, therefore, both the Labour Court and the Industrial Court have erred in concluding that the petitioner is guilty of the misconduct alleged to have been committed by him. 16. In these circumstances, the impugned orders are set aside. The petitioner is entitled to reinstatement with continuity of service. As regards the back wages payable to the petitioner, it will be necessary to remand the complaint to the Labour Court to decide that issue. 17. Accordingly, the petition is allowed. W.P.No.2026.98 11 18. The impugned orders passed in Complaint (ULP) No. 248 of 1992 and Revision Application (ULP) No.80 of 1997 are set aside. 19. Complaint (ULP) No.248 of 1992 is remanded to the Labour Court to decide whether the petitioner is entitled to back wages from the date of his dismissal from service. The Labour Court will decide this issue within six months from today. 20. Respondents are directed to reinstate the petitioner with continuity of service within four weeks from today. 21. Rule made absolute accordingly. No costs. ..... W.P.No.2026.98 12