-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2335 OF 1997 Motor Industries Co. Ltd., ) Nashik Division, 75, MIDC, Satpur, ) Post Bag No. 64, Nashik-422 007. )...Petitioner versus 1. Popat Murlidhar Patil, ) Plot No. 14, Jadhav Colony, Makhmalabad Road, ) Panchvati, Nashik-422 003. ) 2. Shri P.B. Akolkar, Member, ) Industrial Court, Nashik, having his office at ) Plastic House, Opp. Gurudwara, Near Shingada ) Talao, Nashik )..Respondent2. Mr. P.K. Rele, Senior Advocate, with Mr. Rajesh P. Rele, instructed by Mr. Piyush Shah for the petitioner. Mr. A.K. Jalisatgi with Mr. Satish Hegde for respondent No.1. CORAM: P.B. MAJMUDAR, J. DATE: JULY 09, 2008. ORAL JUDGMENT By filing this petition, the petitioner-company has challenged the order passed by the Member, Industrial Court, Nashik dated 31st March, 1997 passed in Revision Application (ULP) No. 361 of 1995. By the revisional order, the revisional Court set aside the order of the Labour Court -2- dated 17th October, 1995 in Complaint (ULP) No. 58 of 1988. The revisional Court held that the petitioner company, who was the respondent before the revisional Court, had indulged in unfair labour practice under item 1 (a), (b), (d), (f) and (g) of Schedule IV of the MRTU & PULP Act, 1971. The revisional Court also directed the petitioner company to reinstate the first respondent with continuity of service and full back wages. The revisional court also directed the petitioner company to pay cost of Rs. 500/- to the first respondent. 2. The present litigation has a chequered history. The first respondent was appointed as an Operator in the year 1975. In the year 1977, he was placed in G5 grade. It seems that thereafter the question of granting further promotion in G7 grade arose. The first respondent was not promoted on the said grade as, according to the petitioner, he had not cleared the interview and the requisite test. The first respondent thereafter started making grievances in this behalf. It is the case of the company that the first respondent adopted pressurising tactics by disobeying lawful and reasonable orders/instructions of the superiors with regard to maintenance and repair work which work, according to the company, was required to be handled by the first respondent. On the allegation of certain misconducts attributed to the first respondent workman, a departmental enquiry was initiated against him in August, 1986 and the first respondent was subjected -3- to charge-sheet. 3. It is the case of the petitioner that the concerned workman was not co-operating with the enquiry proceedings and ultimately a dismissal order was passed against the first respondent on 12th March, 1988. The first respondent thereafter filed a complaint being Complaint (ULP) No. 58 of 1988 under items 1 (a) (b) (d) and (f) and 9 of Schedule IV of the MRTU & PULP Act. There were certain interim applications filed by the first respondent before the Labour Court in connection with production of documents, etc. The Labour Court ultimately by its judgment and order dated 17th October, 1995 dismissed the said complaint which order was challenged by the first respondent by way of revision under Section 44 of the MRTU & PULP Act. The said revision was numbered as Revision Application (ULP) No. 361 of 1995. The revisional Court by its order dated 26th June, 1996 allowed the said revision application, set aside the order dated 17th October, 1995 and passed an order of reinstatement with continuity of service and full back wages. The petitioner company challenged the said decision by way of Writ Petition No. 4321 of 1996. The learned single Judge of this Court by his order dated 28th September, 1996 set aside the order of the revisional Court and directed the revisional Court to decide the matter afresh and on merits on all issues in accordance with law as expeditiously as possible. On the basis of the said order, the revisional -4- Court again heard both the sides and by the impugned order dated 31st March, 1997 allowed the said revision application by setting aside the order of the Labour Court, Nashik in Complaint (ULP) No. 58 of 1988. 4. It is the aforesaid order which is impugned at the instance of the Petitioner in this writ petition. Mr. Rele, learned Senior Counsel appearing for the petitioner has attacked the order of the revisional Court on the ground that once this Court has sent the matter back to the revisional Court for deciding it on merits, it was not open for the revisional Court to hold that the Labour Court could not have permitted the petitioner to lead fresh evidence before it. Mr. Rele further submitted that, as a matter of fact, in the reply the company has already stated that the Company is willing to lead evidence before the Labour Court. Mr. Rele further submitted that even otherwise it is always open to the Labour Court to ask the parties to lead fresh evidence before it, in case if it is found that the domestic enquiry is defective. Mr. Rele further submitted that the powers of the revisional Court is very limited and surely it is not open to the revisional Court to undertake the exercise of re-appreciating the evidence as if it is a regular court of appeal. It is further submitted that it is true that if the finding of fact arrived at by the Labour Court is dehors the evidence on record or finding is such that no reasonable man can arrive at, then the revisional Court can interfere with such finding as in such type of cases, the Labour Court has committed an -5- error of law in appreciating the evidence on record. On that ground the appellate Court cannot re-appreciate the entire evidence and can arrive its own finding of fact. Mr. Rele also submitted that even on merits, the petitioner has led ample evidence before the Labour Court and the Labour Court, therefore, has rightly appreciated the evidence by holding that the petitioner has proved those charges and that from the evidence on record before the Labour Court it can be said that the misconduct against the concerned workman is proved and looking to the nature of the misconduct the Labour Court has rightly held that the order of management in dismissing the services of the petitioner is just and proper. 5. Learned counsel for the first respondent Mr. Avinash Jalisatgi has vehemently submitted that the Labour Court has not considered the evidence from its proper perspective. He further submitted that since the Labour Court has recorded the evidence before it for the first time, it was the duty of the Labour Court to analyse the evidence critically and the Labour Court was required to consider the same in its proper perspective. The Labour Court has merely recorded the submissions and recorded half hearted finding without analysing the evidence in greater detail. Mr. Jalisatgi has further submitted that when the finding of fact given by the Labour Court is to be treated as final in the sense that it cannot be reappreciated further, it is the duty of the Labour Court to analyse the evidence by scrutinising the same in -6- a proper way and to discuss the same by analysing the evidence in proper manner. It is submitted that the evidence of the petitioner has not been examined in proper manner and under these circumstances the Industrial Court in revision was justified in assessing the evidence on its own and given finding on the basis of such evidence as the Labour Court has failed to discharge the duty by appreciating the evidence in its proper perspective. Learned counsel for the first respondent also submitted that even otherwise on going through the evidence on record it can never be said that the concerned workman has committed any act of misconduct or any misconduct against the concerned workman has been proved at all. It is submitted that if the evidence on record is considered logically, it can never be said that any of the charges levelled against the concerned workman has been proved and under these circumstances, this Court may not interfere with the order of the revisional Court as ultimately substantial justice has been done to the respondent workman by the impugned order. 6. I have heard the learned counsel for the parties at length. I have gone through the voluminous record produced before the Court. It is required to be noted that the concerned workman was subjected to four charges. It is not in dispute that the departmental enquiry did not see the light of the day as it was not completed. Under the circumstances, the Labour Court permitted the petitioner to lead fresh evidence before the Court -7- itself. It is required to be noted that the Company has already stated in the reply that the Company was willing to lead evidence in rebuttal. It is true that no separate application is filed for permitting the company to lead evidence before the Court. However, at the time when the issues were framed, the Company filed an application for recasting the issue and issue was ultimately framed as under: “Whether the Respondent (the Petitioner) proves misconduct alleged against the Complainant (the first respondent)”. It is not in dispute that on the basis of the aforesaid issue, both the sides were permitted to lead evidence and the first Respondent had not made any grievance in this regard regarding the framing of such an issue and in fact has also led evidence before the Labour Court. Even on earlier occasion, the learned single Judge of this Court has sent the matter back to the revisional Court to decide the matter on merits as on earlier occasion the revisional Court came to the conclusion that it was not open to the Labour Court to take fresh evidence before it. 7. Learned counsel for the petitioner relied upon the decision of a Division Bench of this Court in the case of Omkar Sitaram Rane vs. -8- Maharashtra State Khadi and Village Industries Board, Bombay and others,1 . The Division Bench of this Court has held that if an enquiry is found to have been vitiated or defective, the employer/management can lead evidence to prove charges against the employer before the Court or Tribunal under the MRTU & PULP Act, 1971. Mr. Rele has further relied on a decision of the Supreme Court in the case of Director, State Transport, Punjab and another vs. Gurdev Singh and another,2 wherein the Supreme Court has held that the Labour Court can certainly allow the parties to lead evidence before it, if the enquiry is found to be defective. Considering the aforesaid aspect of the matter, in my view, no fault can be found with the order of the Labour Court by which it permitted the management to lead fresh evidence before it. Not only that on the basis of the same, an issue was framed on which both sides led evidence and that evidence has also come on the record of the case. Even otherwise, the High Court also remanded the matter earlier asking the revisional Court to decide the matter on merits. Under these circumstances, it was not proper on the part of the revisional Court to observe that it was not open for the Labour Court to allow the management to lead evidence. In any case, so far as the aforesaid aspect is concerned, in my view, it cannot be said that the Labour Court had committed an error in allowing the management to lead evidence before it. 1 2003 (1) LLJ 929 2 1998 II LLJ 39 -9- 8. Now the next question which requires consideration is whether the revisional Court was justified in interfering with the order of the Labour Court by appreciating the evidence on record. Mr. Jalisatgi has submitted that it cannot be said that the revisional Court has appreciated the evidence but according to him since the Labour Court has not analysed the evidence in its proper perspective, then that error has been corrected by the revisional Court. In order to substantiate the same, he has relied upon the decision of the learned single Judge of this Court in the case of Hotel Oberoi Towers v. Gopal Naidu3 . In the aforesaid case, as per the enquiry report, the employee was found guilty of theft of the property of the Company. The Labour Court upheld the same. The revisional Court found that the order of the Labour Court was perverse and contrary to evidence on record and under these circumstances the Industrial Court exercised its powers under Section 44 and interfered with the order of the Labour Court and set aside the finding of the Labour Court. On going through the said judgment it is clear that as per the evidence on record, it was not possible to hold that the concerned employee was guilty of committing theft. It was found that the Labour Court had not examined the evidence on record and has merely accepted the finding of the Enquiry Officer in the domestic enquiry. It was found that the order being perverse, the Industrial Court was entitled to interfere with in the revision. 3 2002 (94) FLR779 -10- 9. So far as the facts of the present case is concerned, it is not in dispute that the concerned workman was subjected to four charges. The management led its evidence by examining certain witnesses before the Labour Court. On going through the order of the Labour Court, one can get an impression that the critical analysis of the evidence has not been made by the Labour Court in its judgement. For example, the Labour Court has stated at one place that the witnesses of management have supported the charges without analysing the evidence of the witnesses. Merely by recording of the arguments or submissions of parties, it cannot be said that the evidence is appreciated. Considering the said aspect, I agree with the learned counsel for the first respondent that the evidence has not been appreciated or no proper analysis of the evidence has been done by the Labour Court. It is required to be noted that the Labour Court is assigned with the important duty of assessing the evidence in a proper manner as the finding of fact given by the fact finding authority or Court is to be treated as final and such finding of fact cannot be disturbed normally in a revision unless specific power is available with the revisional authority in this behalf. However, in my view, it was equally not open to the revisional Court to undertake the exercise of appreciating the evidence on its own as if it is a court of appeal. The revisional Court has considered the oral evidence in -11- greater detail. In fact, the oral evidence has also been narrated in the judgment of the revisional Court and on the basis of the said evidence, the revisional Court has given its own finding of fact. To say that the finding of the Labour Court is perverse or particular important piece of evidence is ignored or that the finding is such that no reasonable person or authority can reach to a conclusion is a different thing as the said aspect would fall within the realm of eror of law. But to appreciate or reappreciate the evidence as a whole by examining the entire evidence like in court of appeal is not permissible so far as revisional Court is concerned. Even learned counsel for the first respondent has also fairly submitted that the revisional Court cannot reappreciate the evidence or upset the finding of fact. His argument was limited to an extent that since the Labour Court has not analysed the evidence at all, the revisional Court had no option but to consider the evidence on its own and to give its own finding. However, in my view, the revisional Court is not required to give finding of fact by appreciating evidence. If the Labour Court has not appreciated the evidence at all or has not given proper finding on the basis of available evidence on record, the revisional Court should have remitted the matter asking the Labour Court to analyse the evidence in its proper perspective and to give finding of fact on the basis of appreciation of evidence which is to be done in a greater detail by Labour Court as a fact finding Court. Instead, the revisional Court has undertaken the exercise of going through the entire evidence and has given -12- its own finding on the basis of such evidence by holding that on the basis of record no misconduct is proved regarding any of the charges levelled against the employee. As pointed out earlier, the Labour Court has also failed to discharge its duty by analysing the evidence in a detailed manner before giving any finding of fact. 10. Considering the matter from the aforesaid angle, in my view, it would be just and proper to remand the matter to the Labour Court with a direction that the Labour Court shall give detailed findings which should be based on analysis of the evidence in detail. Since there are four charges, appropriate finding of fact should be given by the Labour Court by analysing the evidence in connection with all the charges. Considering the aforesaid aspect of the matter, the matter is remitted to the Labour Court to decide the question afresh in the light of the observations made hereinabove. It is clarified that this Court has nor expressed any opinion in any manner and it is for the Labour Court to give its finding of fact by analysing the evidence which is already on record. None of the parties shall be permitted to lead any further evidence or produce any fresh document before the Labour Court and the Labour Court shall decide the matter as per the evidence available on record. It is needless to say that the Labour Court will decide the matter uninfluenced by the observations made either by the revisional Court or by this Court in any manner and will apply its mind independently and will give finding of fact by analysing the evidence in detail. It is required -13- to be noted that since the proceedings are very old one and considerable time has elapsed, the Labour Court is directed to decide the matter afresh in any case latest by 15th November, 2008. 11. Since evidence is already on record, the Labour Court can now decide the matter within the stipulated time. It is assured by both the sides that they will cooperate with the Labour Court in early disposal of the said matter so that the Labour Court can decide the matter within the stipulate time. 12. In view of what is stated above, it is not necessary to examine the arguments of Mr. Rele that the Court should not have awarded full back wages . In view of the fact that the matter is remitted to the Labour Court, the judgments cited by Mr. Rele regarding back wages are not required to be taken into account at this stage. Ultimately all the questions are left to the decision of the Labour Court including the question about adequacy or otherwise of the punishment order. On this count, this Court has not expressed any opinion and the matter is remitted to the Labour Court to decide the matter afresh as indicated in the order. The order of the revisional Court as well as of the Labour Court are accordingly set aside. The matter is remitted to the Labour Court for fresh decision in accordance with law and as per the observations made hereinabove. The Rule is made absolute to -14- the aforesaid extent with no order as to costs. Registry is directed to send the writ to the Labour Court forthwith. 13. It is pointed out that during the pendency of the matter, the petitioner employer is paying Rs. 2,800/- per month to the concerned workman. Considering the facts and circumstances of the case, the learned counsel for the petitioner has fairly agreed that till the decision of Labour Court, the said arrangement will continue and the aforesaid amount will be regularly paid to the concerned workman. Ordered accordingly. P.B. MAJMUDAR, J.