( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4435 OF 2005 Ganesh Sahakari Sakhar Karkhana Ltd., Ganeshnagar, Po. Ranjangaon Khurd, Tq. Kopergaon, Dist. Ahmednagar, through its Managing Director. PETITIONER VERSUS 1. Dashrath Bajirao Nirgude, R/o Ganesh Nagar, Po. Ranjangaon Khurd, Tq. Kopergaon, District Ahmednagar. 2. Kopergaon Tq. Sakhar Kamgar Sabha, C/o Ganesh SSK Ltd., at post Ganeshnagar, Post Ranjangaon Khurd, Tq. Kopergaon, Dist. Ahmednagar, through Mr. Balasaheb Sable, Sachiv. RESPONDENTS ..... Mr. V.N. Upadhye, advocate for the petitioner. Mr. Pradeep Shahane, advocate for respondent No. 1. ..... WITH WRIT PETITION NO. 4022 OF 2005 Dashrath s/o Bajirao Nirgude, R/o Ganesh Nagar, Post Ranjangaon (Khurd), Tal. Rahata, District Ahmednagar. PETITIONER VERSUS ( 2 ) Shri Ganesh Sahakari Sakhar Karkhana Ltd., Ganesh Nagar, Post Ranjangaon (Khurd), Tal. Rahata, Dist. Ahmednagar, through its Managing Director. RESPONDENT ..... Mr. Pradeep Shahane, advocate for the petitioner. Mr. Ashok Patil and Smt. Renuka Ghute, advocates for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 3rd July, 2009] ORAL JUDGEMENT : 1. Both these petitions are being disposed of together in as much as they arise out of same judgements rendered by the Labour Court in Complaint (ULP) No. 125/1994 and by the Industrial Court in Revision (ULP) No. 18/1997 and Revision (ULP) No. 19/1997. By the impugned judgements, the learned Judge of the Labour Court held that the employer committed unfair labour practice under Item 1 (g) of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, “the ( 3 ) MRTU & PULP Act”). The employee was, therefore, directed to be reinstated in service with continuity and without backwages. The revision petition preferred by the employer against the said Judgement due to the relief so granted by the Labour Court and the revision petition preferred by the employee against the order of dismissal of his claim for backwages came to be dismissed by common judgement rendered in both revision petitions, by the learned Member, Industrial Court, Ahmednagar. 2. For sake of convenience, the employer will be referred hereinafter as “the Sugar Factory” and the employee will be referred hereinafter by his first name “Dashrath”. Indisputably, Dashrath was employed as a clerk on establishment of the Sugar Factory. He was continuously working since 1978 until he was removed from service on 10th December, 1994. It is an admitted fact that he was assigned the work to attend court litigation, conveyances and other related duties. He was being entrusted with advance amounts so as to incur expenditure required for the purpose of such litigation, ( 4 ) conveyances, etc. He was authorized to deal with the conveyances and to get the same drafted, registered, etc. It is further an admitted fact that the Sugar Factory entered into an agreement with one Harishchandra s/o Bhikaji to purchase his agricultural land consisting of 1.5 acres for establishment of Distillery or expansion of the existing Distillery. The sale-deed of the said land was got to be executed from the vendor and, therefore, non-judicial stamp was purchased by Dashrath (employee) on 24th February, 1993. Thereafter, on 6th March, 1993, a registered sale-deed was got executed from the vendor in favour of the Sugar Factory represented by its Chairman. The fact that consideration agreed to be paid to the vendor was Rs. 1500/- is also not in dispute. 3. The vouchers of expenditure were required to be submitted by Dashrath. He submitted the voucher dated 31st March, 1993 wherein he indicated the consideration amount of the said sale transaction as Rs. 15,000/- instead of Rs. 1500/-. It is obviously not the sale consideration paid to the vendor. There is no dispute ( 5 ) about the fact that the amount of Rs 13,500/- was excessively claimed under the said voucher submitted to the Sugar Factory. 4. The erroneous claim, according to Dashrath, was noticed by him and, therefore, he submitted an application on the same day i.e. 31st March, 1993 for allowing him to rectify the mistake. It was his case before the Courts below that his application was not approved by the competent authority until 24th May, 1993. He asserted that after grant of permission, he had deposited the said excess amount on 27th May, 1993. Thus, all along, his case was that there was a bonafide mistake on his part while preparing expenditure voucher and claiming excess amount. 5. The Sugar Factory chargesheeted Dashrath of committing criminal breach of trust, preparing false copy of the sale-deed which indicated that the consideration amount was Rs. 15,000/- instead of Rs. 1500/- and deliberately preparing further false record showing that he had submitted an application dated 31st ( 6 ) March, 1993 seeking permission to deposit the amount by rectification of the vouchers though such application was filed by him for the first time on 24th May, 1993. He was held guilty of the charges levelled against him. A show-cause notice was given to him before the final decision was arrived at and thereafter, punishment of dismissal from service was awarded to him by the Sugar Factory. 6. Dashrath challenged the findings and the legality of inquiry held against him. He preferred Complaint (ULP) No. 125/1994 alleging that the Sugar Factory committed unfair labour practices while dismissing him. His grievances in the complaint (ULP) No. 125/1994 were that he was pressurised to give an application wherein his confessional statement was recorded. He alleged that false charges were levelled against him, though he admitted the error which had occurred without any intention to commit misappropriation. He contended that though he was not guilty of any misconduct, yet, only on account of technical mistake, he was awarded the penalty of ( 7 ) dismissal and thereby the Sugar Factory committed unfair labour practices as shown under Item 1 of the Schedule- IV of the MRTU & PULP Act. Consequently, he claimed relief of reinstatement with full backwages. 7. The learned Judge of the Labour Court held that there was only temporary misappropriation of Rs. 13,500/- and the mistake could have been realized by Dashrath (employee) immediately. The learned Judge of the Labour Court inferred that there was probability to the effect that Dashrath immediately submitted the application on the same day for allowing him to rectify the mistake, but it was kept waiting for further decision till 24th May, 1993. The learned Judge of the Labour Court held that the inquiry was fairly conducted and all the reasonable opportunities were made available to Dashrath. Still, however, on account of the suspicious circumstances noticed by the learned Judge of the Labour Court, pertaining to the date on which Dashrath submitted the application for rectification of the mistake, it was held that the gravity of the charges was not such that extreme penalty of dismissal could be ( 8 ) inflicted. The learned Judge of the Labour Court held, therefore, that the punishment awarded to Dashrath (employee) was shockingly disproportionate to the alleged misconduct. In this view of the matter, the order of dismissal was held contrary to the standing orders contemplated under Item 1 of Schedule-IV of the MRTU & PULP Act. Resultantly, the order of reinstatement without backwages was rendered in favour of Dashrath. As stated before, both the revision petitions, preferred by the Sugar Factory and Dashrath, came to be dismissed. 8. Feeling aggrieved, the Sugar Factory has preferred writ petition No. 4435 of 2005 whreas Dashrath has preferred writ petition No. 4022 of 2005. Both the petitioners challenge the aforesaid two (2) judgements of the Labour Court and the Industrial Court to the extent of part which is adverse to them. 9. Heard learned counsel for the parties. ( 9 ) 10. Core issue involved in these petitions is whether the punishment awarded to Dashrath (employee) is shockingly disproportionate to the misconduct proved against him or that both the Courts below committed patent error while arriving at such a finding and wrongly allowed his complaint to the extent of relief of his reinstatement in service, or that the denial of part of the relief regarding backwages is the only illegality committed by the Courts below. 11. So far as the procedural part of the disciplinary enquiry is concerned, it has been concurrently held by the Courts below that fair opportunity was made available to Dashrath. It is pertinent to note that the learned Judge of the Labour Court interfered with the quantum of punishment awarded to Dashrath (employee) because it was noticed that he has crossed middle age and that there were circumstances to infer that he could have filed the application on 31st March, 1993 for permission to deposit the amount of Rs. 13,500/- which was allegedly misappropriated by him. The learned Judge of the Labour Court entertained doubts ( 10 ) regarding the interpolations made in the copy of the sale-deed wherein the consideration amount was shown to be Rs. 15,000/- instead of Rs. 1500/-. The learned Judge of the Labour Court opined that the interpolations could have been done by somebody else and, therefore, the employee – Dashrath could not be attributed the charge of preparing false record. 12. At this juncture, it may be noticed that Dashrath executed the work of completing registration of the sale-deed on 6th March, 1993. It is significant to note that he is attesting witness of the sale-deed. He was authorized to complete the transaction and to do all the work viz. purchasing of the required non-judicial stamp, payment of the registration fees and other allied work. He himself was duty bound to furnish a copy of the sale-deed alongwith his vouchers in order to justify the recoupment of advance payment. In other words, he had personal knowledge of all these transactions from the day one. He did not act upon information furnished by anyone else. It is manifestly clear, therefore, that if a mistake was committed in giving explanation about ( 11 ) the expenditure, then he had reason to believe that no such mistake could have occurred in the preparation of the sale-deed. For, he had himself purchased the non- judicial stamp and done all the work pertaining to the sale-deed dated 06-03-1993. He collected the copy of the sale-deed. He submitted the voucher to the accountant and claimed the excess amount of Rs. 13,500/- towards the expenditure required for payment of price to the vendor. 13. The disciplinary enquiry brought it on surface of the record that there were interpolations in the xerox copy of the sale-deed. The consideration amount was shown as Rs. 15,000/- instead of Rs. 1500/- and not only in the figure, but also the words were interpolated in such a copy which was filed in the office. The disciplinary enquiry revealed that the employee – Dashrath was guilty in respect of the misconduct viz. (i) That, he obtained amount of Rs. 13,500/- more than the actual expenditure required for payment of consideration amount to the vendor ( 12 ) by name Harishchandra Gadhave in respect of the sale transaction dated 26th March, 1993; (ii) That, when this temporary misappropriation was noticed by the office, then he actually submitted a report on 24th May, 1993 by putting antedate 31st March, 1993 thereon in order to deceptively show that on the day of obtaining such extra amount, he had noticed the mistake and immediately gave such application for rectification of the voucher No. 1339 of the s ame date; (iii) That, the copy of the sale-deed dated 26th March, 1993 annexed with D.P. Report No. 91 by the employee – Dashrath was interpolated and fabricated by him in order to support his false claim regarding the excessive amount of Rs. 13,500/- which was sought to be obtained by him; and (iv) That, he committed temporary misappropriation of Rs. 13,500/- in order to dupe the Sugar Factory and embezzle the said amount. Needless to say, all these charges reflect on integrity of the employee and are of serious nature. So, unless it ( 13 ) can be noticed that really, the employee – Dashrath committed bonafide mistake while submitting the voucher and immediately realized his mistake which he sought to rectify, there was no warrant to interfere with the quantum of punishment awarded to him. He had lost faith of the Sugar Factory and was found guilty of the serious charges levelled against him. 14. The learned Judge of the Labour Court entertained doubts regarding the presentation of application by Dashrath on a subsequent date i.e. 24th May, 1993 and held that it could have been submitted on 31st March, 1993. One cannot be oblivious of the fact that if such application was filed on 31st March, 1993, the person like Dashrath, who was day-today dealing in Court work, would have presented the application at the appropriate table of the inward clerk and would have obtained an acknowledgement thereof. The person who was dealing in Court affairs could have taken more care in order to ensure that his stance of committing bonafide mistake was immediately brought to the notice of not only the superior authority, but also to the Chairman of ( 14 ) the Sugar Factory and if such application was kept pending for a longer period upto 24th May, 1993, then he would have given other applications in the meanwhile to permit him to rectify the mistake. He could not have kept silence in the matter for such a long drawn period. It is important to note that he had proceeded on leave between 3rd May, 1993 to 26th May, 1993. Still, however, during the entire month of April, 1993, he did not pursue to his so called request for leave to rectify the mistake, is rather an unacceptable circumstance. A person who was having compunction that such mistake had occurred would have made serious attempts to get it rectified immediately and to deposit the remaining amount within a reasonable period. 15. Another circumstance which speaks volume against Dashrath – employee is that he alone was exclusively dealing with the said transaction of the sale-deed dated 26th March, 1993. Nobody else could have any reason to fabricate the xerox copy of the sale-deed in order to show excess amount of consideration. No other staff member could have personal knowledge about ( 15 ) the said transaction. Nor Dashrath could have any reason to believe that the consideration amount was Rs. 15,000/- in respect of the said transaction. For, he himself had completed the transaction since inception because the non-judicial stamp was purchased a few days before the registration of the sale-deed and all the steps were taken by him and nobody else. Moreover, it is not proved by him that anybody else gave him such a manipulated copy of the sale-deed so as to trust that the consideration amount paid to the vendor was Rs. 15,000/- instead of Rs. 1500/-. He ought to have noticed such kind of fabrication at the first sight if anybody else would have done it. It is explicit that he was required to prove the things which were within his personal knowledge in view of section 106 of the Evidence Act. His failure to explain as to how he believed that the consideration amount was Rs. 15,000/- when the amount of Rs. 13,500/- was shown more as expenditure towards consideration amount, is not only inexplicable but smacks of his dishonest intentions. 16. What transpires from the record is that during ( 16 ) leave period of Dashrath – the employee, somehow or the other the temporary misappropriation committed by him was noticed by the officials dealing with the accounts branch. It is highly probable that Dashrath was verbally informed of such revelations and, therefore, though he was on leave, yet, he went to the office of the Sugar Factory on 24th May, 1993 and submitted his written report by antedating the same to show that it was report dated 31st March, 1993. It is explicit from the record that he committed one misconduct, then was entrapped in his own wrongs and was required to commit further misdeeds in order to do some patchwork. The findings of the disciplinary authority could not have been lightly brushed aside by the learned Judge of the Labour Court. For, these findings were based on probabilities which occurred due to the circumstances and the conduct of the employee. It need not be emphasized that in disciplinary enquiry, the degree of proof required is that of preponderance of probabilities and it is not necessary to prove the charge beyond reasonable realm of doubt. ( 17 ) 17. Mr. Shahane would submit that this Court may not interfere with the concurrent findings of the Labour Court and the Industrial Court. He would submit that this Court should not substitute its own conclusions on the question of penalty. The learned counsel invited my attention to “State of Gujarat vs. Anand Acharya @ Bharat Kumar Sadhu” 2007 (113) FLR 447. The Apex Court held that the Court would normally not substitute its own conclusion on penalty while exercising the power of judicial review. Where the punishment imposed by the disciplinary or the appellate authority shocks the conscience of the Court, the Court would appropriately mould relief. It is observed that in rare cases as an exception, the Court may impose appropriate punishment to shorten the litigation. In this case, however, this Court is not required to impose punishment as such. But the question for determination is as to whether the Labour Court and the Industrial Court could have interfered with the imposition of the punishment of dismissal in the circumstances which are obtained from the record. Mr. Shahane also invited my attention to ( 18 ) “N.B. Mulani vs. Inspector General, S W S Central Industrial Security Force and another” 2007 (5) Mh.L.J. 76. A Division Bench of this Court held that the High Court, in its writ jurisdiction under Article 226 of the Constitution of India, does not sit as a Court of appeal over the departmental proceedings. It has been observed that in the matter of interference with the order of punishment, the scope of judicial review is very limited and interference is warranted only if findings in the departmental enquiry are perverse or the punishment is shockingly disproportionate. With due respects, it may be stated that this Court is not concerned with judicial review of the punishment imposed, but is required to consider whether the exercise of such review power by the Labour Court and the Industrial Court is legal and proper. In the given case of “N.B. Mulani” (supra), the Division Bench held that when the conclusions drawn by the disciplinary authority were not perverse and the finding in the departmental enquiry and the punishment imposed upon the petitioner – N.B. Mulani, was based on such findings, no interference was called for. By ( 19 ) applying same logic, it will have to be said that the learned Judge of the Labour Court and the learned Member of the Industrial Court ought not to have interfered with the findings in the departmental enquiry and the punishment imposed on the employee – Dashrath because the same were based on material which was brought on surface of the record. It was not a case where there was no evidence at all against the employee – Dashrath. It was not a case where the conclusions drawn by the disciplinary authority could be branded as perverse. 18. Mr. Shahane referred to certain observations in “U.P. State Road Transport Corporation and others v. Mahesh Kumar Mishra and others” 2000 LAB. I.C. 1031 and “B.C.Chaturvedi v. Union of India and others” (1996 LAB. I.C. 462). Both these authorities handed down by the Apex Court deal with the question pertaining to judicial review. It has been held that the High Court can interfere if it is demonstrated that the penalty awarded shocks conscience of the Court. ( 20 ) 19. A number of other authorities were cited by learned counsel Mr. Shahane in support of his contention that the punishment awarded to the employee - Dashrath is shockingly disproportionate to the nature of misconduct proved against him. He seeks to rely on “The Mill Manager, Savatram Ramprasad Mills v. The Industrial Court, Nagpur and another”, reported in MRTU & PULP CASES 293. A Division Bench of this Court held that the non-consideration of the past service record of the delinquent as required by the standing orders is mandatory and non-application thereof would amount to breach of principles of natural justice. It is worthy to be noted that nowhere, such ground was specifically raised in the appeal memo before the Labour Court, nor such question was agitated before the Labour Court and the Industrial Court. Nowhere there is discussion in the impugned judgements about interference in the penalty imposed on the employee due to the reason that his past service was not taken into account while imposing the penalty. Nowhere it has been observed by the Courts below that an argument was advanced by the ( 21 ) counsel of the employee regarding non-compliance of the standing orders in this behalf. Needless to say, for the first time in this Court, such contention cannot be raised only because some assistance is available from “The Mill Manager, Savatram Ramprasad Mills” (supra). The question whether his past services have been considered or not by the disciplinary authority is a mixed question of fact and law. Without determination of the factual aspects, one cannot enter into the arena of such a question. Besides, the Apex Court in “Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Ltd.), etc. v. Secretary, Sahakari Noukarara Sangh, etc.” 2000 STPL (LE) 28634 SC, held that in case of proved misappropriation, there is no question of considering the past record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases. It has been observed further that once act of misappropriation is proved, may be for a small or large amount, there is no question of uncalled sympathy and reinstalling the ( 22 ) employees in service. Thus, it is explicit that when the charge of misappropriation is proved, then it cannot be regarded as a minor act of misconduct. In “Depot Manager, APSRTC v. B. Swamy” 2007 STPL (LE) 38786 SC, the Apex Court held that the gravity of the misconduct cannot be minimized by the fact that the delinquent was not earlier caught indulging in such dishonest conduct. It is observed : “A conductor of a bus enjoys the faith reposed in him. He accepts the responsibility of honestly collecting fares from the passengers after issuing proper tickets and is obliged to account for the money so collected. If conductors were to be dishonest in the performance of their duties, it would cause serious pecuniary loss to the employer. The High Court was, therefore, not justified in observing that the management gave “excess gravity” to the offence. We are constrained to observe that the High Court was not justified in characterising the order of the management as one induced by exaggeration of the gravity of the offence. The conductor performs only the duty of issuing tickets to the passengers ( 23 ) and accounting for the fare collected from the passengers to the management. If he is dishonest in the performance of his duties, he is guilty of serious misconduct and the gravity of the misconduct cannot be minimized by the fact that he was not earlier caught indulging in such dishonest conduct. There is no guarantee that he had not acted dishonestly in the past as well which went undetected. Even one act of dishonesty amounting to breach of faith may invite serious punishment.” (emphasis supplied by me) 20. Mr. Shahane took me through several case-law viz. “Management of Shri Ganpati Bus Service, Thirunelveli v. Presiding Officer, Labour Court and others” 2001 I CLR