1 wp-1102-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 1102 OF 2011. Jagatsingh Gurow. ..Petitioner. vs. Indian Hotels Company Ltd. ..Respondent. .... Mr. Ramesh Dube Patil, a/w. Ashish Giri, i/b. Ajay Mishar & Co., for Petitioner. Mr. J.P. Cama, Senior Counsel, i/b. Mulla & Mulla, for Respondent. .... CORAM : S.J. KATHAWALLA, J. DATE : 18TH JULY 2011. P.C. : The above Writ Petition is for Admission. 2. By this Writ Petition, the Petitioner has prayed that the Award (Part-II) dated 11th January 2010, passed by the 10th Labour Court, Mumbai, be quashed and set aside and the Respondent Company be directed to reinstate the Petitioner with continuity of service and full back wages with effect from 28th July 2001 till the date the Petitioner is reinstated by the Respondent. 3. The Petitioner was in employment of the Respondent since 1st February 1985 and at the material time, he was working as a Cook for the Respondent. A charge sheet dated 22nd February 2000 was issued by the Respondent to the Petitioner for having committed theft at his work premises. The Petitioner by his letter dated 11th March 2000 submitted his explanation. The Respondent initiated 2 wp-1102-11.doc domestic inquiry into the charge sheet. The Inquiry Officer submitted his report dated 7th May 2001 and held the Petitioner guilty. A copy of the findings and report of the Inquiry Officer were sent to the Petitioner for his say. He submitted his explanation on 25th June 2001 after which he came to be dismissed with effect from 28th July 2001. 4. Thereafter, the Petitioner raised an Industrial Dispute challenging his dismissal and demanding his reinstatement in services and approached the Office of the Commissioner of Labour seeking intervention. On failure of the conciliation proceedings, the Appropriate Government referred the dispute for adjudication to the Labour Court under section 2-A of the Industrial Disputes Act, 1947 read with section 10 of the said Act and the matter was assigned to the 10th Labour Court, Mumbai. After the Petitioner submitted his statement of claim and the Respondent filed its Written Statement, the Labour Court framed the following two preliminary issues :- (1) Whether the second party workman proves that the domestic inquiry conducted is not fair and proper ? (2) Whether findings recorded by the Inquiry Officer are perverse ? 5. The Learned Presiding Officer was pleased to pass his Award (Part-I) dated 7th September 2006 holding that the inquiry conducted by the Respondent was not fair and proper and the findings of the Inquiry Officer were perverse. 6. The Respondent filed Writ Petition No. 3125 of 2006 before this Court and impugned the Award (Part-I) dated 7th September 3 wp-1102-11.doc 2006 passed by the 10th Labour Court, Mumbai. A Learned Single Judge of this Court by order dated 31st January 2007 allowed the Writ Petition. It was held that the domestic inquiry conducted by the Respondent was fair and proper and the findings recorded by the Inquiry Officer were not perverse. The Petitioner challenged the order of the Learned Single Judge by way of an Appeal being No. 482 of 2007. The said Appeal was disposed of by an order of the Hon’ble Division Bench of this Court dated 23rd July 2007, which reads as follows :- “ After some arguments were heard on the order under appeal, Learned Counsel appearing for the appellant submits that he would have no grievance against the order impugned in the present appeal provided the question of authority of the Manager to terminate the services of the appellant is kept open and the Labour Court is required to decide the said issue. Learned Counsel appearing for the respondent submits that while maintaining the question of perversity and fairness of the inquiry in favour of the respondent, this question may be gone into by the Labour Court in the course of final disposal of the case. 2. In view of the common stand taken by the Learned Counsel for the parties, the appeal is disposed of in terms aforesaid. The Labour Court will not now go into the question of perversity and fairness of the inquiry but shall decide the question of authority of the Manager to pass order of termination. 3. Appeal is, accordingly, disposed of, while leaving the parties to bear their own costs.” Thus, the Petitioner accepted that the inquiry held by the Respondent was fair and that the findings of the Inquiry Officer were not perverse. 7. Thereafter, the parties carried out certain amendments to their respective pleadings filed before the 10th Labour Court and the 4 wp-1102-11.doc Respondent also led further evidence. The following issues came to be framed for determination before the 10th Labour Court, Mumbai :- (1) Whether the second party workmen proves that the punishment of the dismissal is shockingly disproportionate ? (2) Whether the first party proves that the Officer who signed the charge sheet and the dismissal order is duly authorised to be the Manager to sign the same ? (3) Whether the second party workman is entitled for relief as claimed ? 8. The Respondent Company examined Shri Vidyadhar Sitaram Vaidya as its witness. Shri Vaidya stated that he was the Manager -HR of the Respondent Company and was presently the General Manager-HR. He deposed that the model Standing Orders under the Industrial Employment (Standing Orders) Act, 1946 are applicable to the Respondent Company and its workmen and that Shri Manek B. Patel who was the Vice President and General Manager was notified as a “Manager” for the purpose of standing orders and the notice to that effect was also displayed on the notice board of the establishment of the Respondent in the month of August 1999 for the information of all the workmen. He also stated that said Shri Manek Patel had all the powers including the power to take disciplinary action as per the model Standing Orders in his capacity as “Manager” under the model Standing Orders against the workmen working in the Respondent Company, including the Petitioner. He further deposed that there has been a practice in the Respondent Company to issue Power of Attorney to its various Executives/Managers from time to time. He deposed that the Respondent Company executed a Power of Attorney in favour of the said Shri Manek Patel, which Power of Attorney was already on the 5 wp-1102-11.doc record of the Court (Exhibit-C-26). He stated that Shri Manek Patel being the Vice President and the General Manager of the first party was also conferred with various other powers including powers to appoint and employ all such Servants, Clerks, Officers, Executive, Consultants, Advisors, Technicians and Industrial Engineers or any other employees as may be necessary to run the business of the Company, and on such remuneration, salary, commission or fees as the said Attorney shall deem fit and expedient and shall from time to time discharge, remove or dismiss any person/s from the employment of the company and take any disciplinary action including issue of charge-sheets, show cause notices, reprimands, punishments, etc. He therefore, submitted in his evidence that the charge sheet dated 22nd February 2000 which was issued to the Petitioner, the disciplinary action taken against the Petitioner and the dismissal order dated 28th July 2001 issued to the Petitioner by the said Shri Manek Patel are well within his powers and authority and there is no illegality whatsoever in exercising such authority/ powers by the said Shri Manek Patel, both under the model Standing Orders as well as by virtue of the said Power of Attorney. 9. The Learned Advocate appearing for the Petitioner has cross- examined Shri Vaidya at some length. Interestingly, there is no cross- examination of Shri Vaidya by the Advocate for the Petitioner on the said Power of Attorney issued in favour of Shri Manek B. Patel by the Respondent Company. Even a suggestion has not been put to the witness that the Power of Attorney executed in favour of Shri Manek Patel was executed without a suitable resolution being passed by the Board of Directors of the Respondent Company. However, the Learned Advocate submitted before the Learned Presiding Officer that in the absence of proof of such a board resolution being in 6 wp-1102-11.doc existence, the said Power of Attorney of Shri Manek Patel is not legal and valid and therefore Shri Manek Patel could not have exercised any authority/ power by virtue of the said Power of Attorney (Exhibit-C-26). In support of his contention, the Learned Advocate for the Petitioner relied on the decision of a Learned Single Judge of this Court in Chico Ursula D’Souza vs. Goa Plast Pvt. Ltd., reported in 2008(6) Mh.L.J. 353. 10. The Learned Presiding Officer by his detailed Award (Part-II) dated 11th January 2010 inter alia held that the Respondent No.1- Company has proved that Shri Manek Patel had the necessary authority to sign the charge sheet as well as the termination letter issued to the Petitioner. The Learned Presiding Officer has recorded that the witness of the Respondent Company in support of his evidence produced Power of Attorney at Exhibit – C-26 along with annexure ‘B’ which is an extract from the Approval Committee (Circular No. 5 of 1999-2000 till 16th November 1999). On perusal of the said Power of Attorney Exhibit – C-26, it is seen that the same is executed by the Executive Director, Shri Daruwala, on behalf of the Respondent Company in favour of Shri Manek Patel. The Learned Presiding Officer has held that by virtue of section 85 of the Indian Evidence Act, there is a legal presumption as to execution and authenticity of the same having been done so by the Notary Public or any other authority under the said provisions of the Act. The Learned Presiding Officer has noted that there is no material cross- examination of Shri Vaidya, witness of the Respondent Company, qua the Power of Attorney by the Learned Advocate for the Petitioner. The Presiding Officer has further recorded that no suggestion was put to Shri Vaidya in his cross-examination that the Executive Director - Shri Daruwala, who signed the Power of Attorney on 7 wp-1102-11.doc behalf of the Company was not duly authorised by the Company. It was also not suggested to the witness that the said Power of Attorney was not legal and valid in absence of a board resolution, as alleged by the Petitioner. The Learned Judge has recorded that the Learned Advocate appearing for the Petitioner has failed to illustrate any material during the course of cross-examination of Shri Vaidya to create any doubt or suspicion regarding the veracity of Shri Vaidya’s evidence before the Court. The Learned Presiding Officer has further held that in case of the Power of Attorney produced at Exhibit-C-26, there is a legal presumption that the said Power of Attorney is duly executed and authenticated in favour of Shri Manek Patel vesting in him several powers as mentioned therein. The Learned Presiding Officer has therefore held that the submission of the Learned Counsel for the Petitioner that in absence of proof of a board resolution, the said Power of Attorney is not legal and valid, is not acceptable especially in view of the presumption under section 85 of the Indian Evidence Act. The Learned Presiding Officer has relied on the decision in the case of Punjab National Bank vs. Khazan Singh and Others, reported in AIR 2004 P. and H. 282 and has distinguished the decision of this Court in Chico Ursula D’Souza vs. Goa Plast Pvt. Ltd., reported in 2008(6) Mh.L.J. 353, on the ground that the same pertains to section 142 of the Negotiable Instruments Act and therefore the facts of the said ruling do not squarely apply to the facts of the case in hand, as to authorization by the Company to initiate disciplinary action and to terminate services of its employees. The Presiding Officer has further recorded that on going through the Power of Attorney (Exhibit-C-26), it is seen that in clause 10, Shri Manek Patel was duly authorised to issue charge sheet, show cause notice, take disciplinary action and even to remove, discharge or dismiss any person from the employment of the Company. The 8 wp-1102-11.doc Learned Presiding Officer has therefore held that it is crystal clear that as per Exhibit-C-26 (Power of Attorney), Shri Manek Patel was vested with the power and he had rightly issued the charge sheet, after which the inquiry was held and after completion of inquiry, considering the findings of the Inquiry Officer and the nature of misconduct committed by the Petitioner workman, termination letter dated 28th July 2001 was issued, which cannot in any way be termed as illegal or without any authority. 11. The Learned Advocate appearing for the Petitioner has repeated the same submission before this Court, viz. that the Respondent Company has not produced any Board Resolution authorising the Executive Director of the Company to issue the said power in favour of Shri Manek Patel. The said Power of Attorney is therefore illegal and without any authority and consequently, the charge sheet as well as the termination order signed by Shri Manek Patel, pursuant to the said Power of Attorney is illegal and bad in law. In support of his contention, the Learned Advocate has relied upon the decision of the Learned Single Judge of this Court in Chico Ursula D’Souza vs. Goa Plast Pvt. Ltd. (supra). I have perused the decision of the Learned Single Judge in Chico Ursula D’Souza vs. Goa Plast Pvt. Ltd. (supra) and have noted that in the said case, no argument was advanced before the Learned Single Judge as regards Section 85 of the Indian Evidence Act, which reads as under :- “Section 85. Presumption as to Powers-of-Attorney.- The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a notary public or any Court, Judge, Magistrate, Indian Consul or Vice-Consul or a representative of the Central Government, was so executed and authenticated.” 9 wp-1102-11.doc In this regard, the decision of a Learned Single Judge in the case of the Citibank N A New Delhi vs. J.K. Jute Mills Company Limited, reported in AIR 1982 Delhi 487 is relevant. Paragraphs 20, 21 and 22 of the said Judgment are reproduced hereunder :- “20. In the absence of the provisions contained in Section 85 of the Evidence Act, any party to a suit etc. relying on a power of attorney would have to prove it like any other document by producing in the witness-box the executant of the document, or the person in whose presence it was so executed, or the person acquainted with the signatures of the executant etc., as the case may be. If that party is a company corporated in India or in any other country, it would be further required to prove that the person or persons executing the power of attorney on its behalf had been duly authorised by means of a resolution duly passed in accordance with law and the articles of association. The purpose of Section 85, in my view, is to eliminate all this cumbersome evidence in case such a power of attorney is executed before and authenticated by a Notary Public, or other authorities mentioned therein. If evidence to prove these facts except the facts of execution by the executant, was insisted upon most of the purpose of Section 85 would be frustrated specially in these days of prevalent international trade. 21. This very question came up for consideration before this Court in National Grindlays Bank v. Radio Electronics Corporation P. Ltd., (1978 Rajdhani LR 217). After detailed discussion, Gill, J. upon examining the various authorities and meaning of the word ‘authentication’ held as under :- ‘In my view Section 85 (of the Evidence Act) does not draw any distinction between the kind of documents, viz. power of attorney executed by an individual and the one executed on behalf of a Company. Authentication of any of these instruments by a Notary Public raised a legal presumption that the same has been duly executed and the person or persons, who had executed, had the authority to do so. Undoubtedly such a presumption is not conclusive, being rebuttable. The 10 wp-1102-11.doc other party is, therefore, legally entitled to disprove such a presumption. The reason to incorporate such a provision in quite obvious. Its inclusion is intended to obviate the production of evidence as is otherwise enjoined to prove the execution of the document. Embarking on an inquiry and demanding proof about the authority of the executant would frustrate the very purpose for which Section 85 has been engrafted. Moreover, asking for proof would have far reaching consequences. Apart from entailing delay and unnecessary expense, it would also hamper the entire trade, more particularly the international trade. Thus, the interpretation placed by the Learned Counsel for the defendants does not reflect or effectuate the real legislative intention. It, on the other hand, unwarrantedly restricts and whittles down the true meaning and legitimate scope of an unambiguous provision.’ Similar view was taken by Sultan Singh, J., in Suit No. 671/77, Bank of India v. Ajaib Singh Pritam Singh decided on April 20, 1979 : (reported in AIR 1979 NOC 199). Repelling the contention of the defendants to the contrary, it was observed as under :- ‘The contention of the Learned counsel for defendants 1 to 3 is that there is a presumption of the execution of power of attorney i.e. the signatures of the executant on the power of attorney, but there is no presumption that the persons executing the power of attorney on behalf of the plaintiff-bank were duly authorised to execute such power of attorney. I do not agree. If the contention of the Learned counsel for the defendants is accepted. Section 85 of the Evidence Act would become redundant. The purpose of Section 85 of the Evidence Act is that the power of attornies are executed throughout the world and if such power of attorney is executed and authenticated by a Notary Public or other officer as mentioned in Section 85 of the Evidence Act, the Court is bound to presume that the power of attorney was duly executed and authenticated. This presumption, however, is a rebuttal presumption and the person challenging the authority of the attorney under such power of attorney is to prove that such power of 11 wp-1102-11.doc attorney is invalid or that the person acting on the basis of such power of attorney is not duly authorised.’ The decision of Gill, J. referred to above, was followed. 22. In National and Grindlays Bank Ltd. v. World Science News, (AIR 1976 Delhi 263), the question whether the facts that the person who had executed the power of attorney on behalf of a body corporate had the authority to do so was to be the presumption or not, was not urged or decided as such, but on the production of a similar power of attorney duly authenticated by a Notary Public and relying on Section 85 of the Evidence Act the onus to prove whether the suit had been instituted by a duly authorised person, was placed on the defendant. The relevant observations at page 264 read as under :- ‘The document in the present case is a power of attorney and again on the face of it shows to have been executed before and authenticated by a notary public. In view of Section 85 of the Evidence Act, the Court has to presume that it was so executed and authenticated. Once the original document is produced purporting to be a power of attorney so executed and attested as stated in Section 85 of the Evidence Act, the Court has to presume that it was so executed and authenticated. The provision is mandatory and it is open to the Court to presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfilled. There is no doubt that the section is not exhaustive and there are different legal modes of executing a power of attorney, but once the power of attorney on its face shows to have been executed and authenticated by a notary public the Court has to so presume that it was so executed and authenticated.’ This Court is thus constantly taking the view that under Section 85 of the Evidence Act, it would also be presumed that the person executing the power of attorney on behalf of a corporate body was competent to do so. I find no reason to take a different view.” 12. The above view is once again reiterated in the case of 12 wp-1102-11.doc Syndicate Bank vs. M/s. S.A. Trading Corporation and Others, 1990 (3) Delhi Lawyer 356. Paragraph 14 of the said decision is relevant and reproduced hereunder : “14. In case the person who has conferred the power-of- attorney has not got it executed, so as to enable him to raise the presumption which may be raised in terms of section 85 of the Evidence Act, then he is left with no option, but to prove the same in accordance with law. This is done by proving the resolution of the Board of Directors of the company, which gives its officers power to grant power-of-attorney to persons the company considers worthy of it, and also prove the factual execution of the power of attorney by the empowered officer or officers. This proof has to be tendered in Court by proving the passing of the resolution by the company in accordance with sections 193 and 194 of the Companies Act, 1956.” 13. Thus, from the foregoing discussion, it is evident that Courts are consistently taking the view that under Section 85 of the Indian Evidence Act, it is presumed that the person executing the Power of Attorney on behalf of a corporate body is competent to do so. However, the said presumption is a rebuttable presumption. I find no reason to take a different view. 14. In the present case, the Presiding Officer has, referred to section 85 of the Indian Evidence Act and further recorded that no doubt is caste by the Petitioner on the said Power of Attorney, whilst cross-examining the witness of the Respondent Company. Based on the above, the Learned Presiding Officer has given his finding that the contention of the Petitioner that in absence of proof of their being a board resolution, authorising Executive Director – Mr. Daruwalla to sign the Power of Attorney on behalf of the Company, is not a legal and valid submission and cannot be accepted. In my view, the Learned Presiding Officer is correct in coming to the above 13 wp-1102-11.doc finding based not only on the legal presumption enunciated in Section 85 of the Indian Evidence Act, but also on the fact that there has been no substantial cross-examination of Shri Vaidya on the Power of Attorney by the Advocate for the Petitioner. In fact, it would be pertinent to point out that even no suggestion has been put by the Petitioner to Mr. Vaidya that Mr. Daruwalla was not authorised by the Company to sign the said Power of Attorney. 15. It is also contended on behalf of the Petitioner in the Writ Petition, that the Respondent Company has victimized the Petitioner because of his trade union activities. Hereto the Learned Presiding Officer, has correctly held that a charge sheet was duly issued to the Petitioner and thereafter an inquiry was fairly and properly conducted by observing the principles of natural justice. Moreover, once there is a finding of proved misconduct before the Inquiry Officer, then the charge of victimization fails as has been held in the case of Khandu Krishna Bhogade vs. Kalyani Steel Ltd. and Others, reported in 1995(II) LLJ 314 Bom.H.C. The Learned Presiding Officer has therefore correctly held that there is absolutely no merit in the argument of alleged