1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 857/2011 (Bharat P. Deshmukh VERSUS M/s Gansons Limited, Nagpur) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri V.D. Raut, counsel for the petitioner. Shri R.B. Puranik, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 18 , 2011 . By this petition, the petitioner impugns the judgment passed by the Industrial Court, Nagpur on 03.02.2011 allowing the revision application filed by the respondent and granting the prayer made in the application by the respondent under Section 101 (2A) of the Bombay Industrial Relations Act. The petitioner was working as a Fitter with the respondent and a charge-sheet was issued against him on 27.01.1996 on the allegation that he had committed misconduct during the period from 19.01.1996 to 27.01.1996 under Clauses 24(b)(k)(l)(r) of the Model Standing Orders framed under the Bombay Industrial Relations Act. An enquiry was conducted against the petitioner and since the petitioner was a protected employee, the respondent made an application under Section 101(2A) of the Bombay Industrial Relations Act before the Labour Court for permission to dismiss the petitioner from service. The petitioner denied the charges levelled against him and pleaded before the Labour 2 Court that the enquiry conducted against him was not fair. It was stated by the petitioner that the respondent had not supplied the necessary documents to the petitioner, had not permitted the petitioner to engage a counsel as his representative and had also not supplied him a copy of the Model Standing Orders. The Labour Court, on an appreciation of the evidence on record, rejected the application filed by the respondent under Section 101(2A) of the Act. The respondent preferred a revision application against the judgment passed by the Labour Court. The Industrial Court, Nagpur, by the judgment dated 03.02.2011, reversed the findings recorded by the Labour Court and allowed the revision application filed by the respondent. Shri Raut, the learned counsel for the petitioner, submitted that the scope of interference by the Industrial Court with the judgment passed by the Labour Court was extremely limited and the Industrial Court was not justified in reversing the findings recorded by the Labour Court while dealing with the revision application. It is submitted on behalf of the petitioner that the Labour Court had rightly held that the enquiry was vitiated as the petitioner was denied an opportunity to engage a counsel and he was not supplied with the translated copies of the complaints dated 19.01.1996, 21.01.1996, 23.01.1996 and 27.01.1996. It is submitted on behalf of the petitioner that the copy of the Model Standing Orders was also not supplied to the petitioner and the respondent had illegally examined one Shri Thakare, who was not cited as a witness in the charge-sheet. The learned counsel for the petitioner submitted that the evidence was not 3 recorded by the Enquiry Officer in the question and answer form and the Labour Court rightly held that the enquiry was vitiated in view of the aforesaid facts. Shri Puranik, the learned counsel for the respondent, submitted that the Revisional Court rightly interfered with the findings recorded by the Labour Court as the Labour Court had not considered the entire evidence available on record and had failed to consider the evidence reasonably and in a proper manner. The learned counsel for the respondent submitted that the Industrial Court has observed in paragraph 30 of the impugned judgment that the judgment of the Labour Court showed non-application of mind and the Industrial Court had to rectify the error committed by the Labour Court as the Labour Court had ignored some of the factual aspects of the matter. The learned counsel for the respondent submitted that each and every aspect of the matter was duly considered by the Industrial Court and the Industrial Court also considered the part of the evidence, which the Labour Court had failed to consider. The learned counsel for the respondent sought for the dismissal of the writ petition. On hearing the learned counsel for the parties and on perusal of the judgments passed by both the Courts, it appears that the Industrial Court was justified in granting permission to the respondent under Section 101(2-A) of the Bombay Industrial Relations Act by allowing the revision application. It is necessary to note that some of the vital pieces of evidence were not considered by the Labour Court and the Industrial Court adverted its mind to the entire evidence on record to hold that the enquiry was conducted by 4 the respondent in a fair and proper manner and there was no question of causing any de-facto prejudice to the petitioner. The Industrial Court held that there was nothing on record to show that it was necessary for the respondent to permit the petitioner to engage a counsel to defend himself. The Industrial Court found from the enquiry papers that the Marathi translated documents were supplied to the petitioner, as sought by him. The Industrial Court found that the Marathi translation of Clauses 24(b)(k)(l)(r) of the Model Standing Orders framed under the Bombay Industrial Relations Act under which the charge of misconduct was framed against the petitioner was served on him. Moreover, it was informed to the petitioner by the management that the petitioner can avail a copy of the Model Standing Orders from the market, the same being a public document. In the facts and circumstances of the case and also for the other reasons recorded by the Industrial Court, the Industrial Court held that the non-placing of the Model Standing Order on record or non-supply of the copy of it to the petitioner did not render the enquiry as unfair. Though the management had examined an additional witness namely Shri Thakare, who was not cited as a witness in the list of witnesses, the Industrial Court observed that after examination-in-chief of Shri Thakare was completed, the matter was adjourned and sufficient time was granted to the petitioner to cross-examine Shri Thakare and Shri Thakare, the eye witness, was duly cross-examined. Since there was full and fair opportunity to the petitioner to cross-examine Shri Thakare, the Industrial Court held that the enquiry could not have been said to be unfair on the aforesaid ground. The Industrial Court also 5 held that the enquiry could not have been said to be unfair merely because the evidence was not recorded in the question-answer form. The Industrial Court observed that normally, the evidence is not recorded in the question-answer form and as could be seen from the Clauses of the Model Standing Orders framed under the Bombay Industrial Relations Act, an Enquiry Officer has to record a concise summary of the evidence led by the parties. For additional reasons recorded, the Industrial Court held that it could not be said that the Enquiry Officer committed any error in refusing to record the entire deposition in question-answer form. The Industrial Court found that the enquiry officer had held the petitioner guilty of the charges leveled against him and since the Labour Court did not consider the matter in the right perspective and also did not consider a part of the relevant evidence on record, the Industrial Court rightly allowed the revision filed by the respondent and granted permission under Section 101(2-A) of the Bombay Industrial Relations Act in favour of the respondent. The order passed by the Industrial Court cannot be said to be unjust or improper. The same does not suffer from any jurisdictional error. In the result, the writ petition is dismissed with no order as to costs. JUDGE APTE