WP/5838 & 1927/1999 a/w. WP/7154/2004 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5838 OF 1999 ALING WITH WRIT PETITION NO.7154 OF 2004 Ashok A. Surve ... Petitioner V/s. MAFCO Ltd., Mumbai ... Respondent AND WRIT PETITION NO.1927 OF 1999 MAFCO Ltd., Mumbai ... Petitioner V/s. Ashok A. Surve & Anr. ... Respondents Mr. K.K. Jadhav for the Petitioner in WP/5838/1999 & WP/7154/2004 and for Respondent No.1 in WP/1927/1999. Mr. V.P. Vaidya for the Respondent in WP/5838/1999 & WP/7154/2004 and for the Petitioner in WP/1927/1999. CORAM : SMT. NISHITA MHATRE, J. DATE : 2 ND DECEMBER, 2010. ORAL JUDGEMENT : 1. These three Writ Petitions are being heard together as the issues involved in these Petitions arise from the termination of services of Ashok Arjun Surve, who is the petitioner in Writ Petition Nos.5838 of 1999 and 7154 of 2004. For the purpose of brevity, the petitioner in Writ Petition Nos.5838 of 1999 and 7154 of WP/5838 & 1927/1999 a/w. WP/7154/2004 2 2004 will hereinafter be referred to as “the workman”. Writ Petition No.1927 of 1999 has been filed by the Company in which the workman was employed. It was engaged in the cold storage of meat and production and sale of frozen foods. The Company has been closed for the last four years or more. 2. The workman was employed from 1972 as a Clerk with the Company. He was working in the Slaughter Section at Borivali from 1979. He was promoted to the Supervisor’s grade in 1985. The workman was expected to note down the weight of the carcasses of pigs which were slaughtered and brought to the slaughter house. The total weight was to be written by him in the presence of the Production Manager. A Goods Receipt Note and Payment Slips were to be prepared by him. Payments were made to the persons who sold the carcasses to the Company based on the weight noted by the workman. 3. A show cause notice was issued to the workman alleging that he had inflated the weight of the goods received and noted the weight in the register accordingly. This was, according to the Company, done by the workman with an ulterior motive for monetary gains. The show cause notice was replied by the workman. He admitted that he had committed a mistake while calculating the total of the weight of the carcasses received and that he was solely responsible for that mistake. A similar show cause notice was issued on 2nd October, 1985 when WP/5838 & 1927/1999 a/w. WP/7154/2004 3 again the workman admitted his mistake in calculating the weights of the carcasses. A charge sheet was issued to the workman on 17th October, 1985, wherein the following charges were levelled against him. “(a). Interfering with and making false entries in the records of the Management with a view to create a financial loss to the Management, and thereby committed misconduct under clauses (d) and (1) of the Model Standing Orders. (b). That by such acts of falsely making entries, you have gained monetorily from the suppliers and thereby committed misconduct under clause (e) of the Model Standing Orders.” 4. The workman replied to the charges levelled against him. An enquiry was held against the workman as the Company did not accept his explanation. The Enquiry Officer submitted a report in which he found that the workman was guilty of the acts of misconduct alleged against him. The workman was, therefore, dismissed from service on 28th October, 1986. Being aggrieved by the decision of the Company, the workman approached the machinery available under the Industrial Disputes Act, 1947, (for short “the I.D. Act”), and challenged his dismissal order. WP/5838 & 1927/1999 a/w. WP/7154/2004 4 5. The Labour Court, Mumbai, by its Award Part I dated 16th March, 1995 passed in Reference (IDA) No.781 of 1987, held that the workman had failed to prove that the enquiry conducted against him was not fair and proper. It was held that the enquiry proceedings were conducted in consonance with the principles of natural justice and in a fair and proper manner. Aggrieved by that decision, the workman preferred Writ Petition No.5838 of 1999 which was rejected on 27th October, 1999. The workman, therefore, preferred Letters Patent Appeal No.331 of 1999. The Letters Patent Appeal was admitted and the order of the learned Single Judge rejecting the Petition was set aside. Rule was issued in the Writ Petition and the Letters Patent Appeal was disposed of. 6. The Labour Court by its Award Part II dated 4th September, 1998 passed in Reference (IDA) No.781 of 1987, held that the findings of the Enquiry Officer were perverse. Since the Company had sought permission to lead evidence in the Court to prove the charges levelled against the workman, the Labour Court permitted the Company to do so. Aggrieved by the decision of the Labour Court, the Company challenged that order in writ Petition No.1927 of 1999. Although the Petition was admitted, no interim relief was granted. The proceedings, i.e. the Reference (IDA) No.781 of 1987, before the Labour Court thus continued. Evidence was led by the Company before the Labour Court to prove its allegations against the workman. By Award Part III dated 31st December, 2001 passed by the WP/5838 & 1927/1999 a/w. WP/7154/2004 5 Labour Court, Mumbai, the Reference (IDA) No.781 of 1987 obtained by the workman was rejected. Aggrieved by that decision, the workman has filed Writ Petition No.7154 of 2004. 7. Although the earlier two Petitions are pending before this Court, in my opinion, both these Writ Petitions, i.e. Writ Petition Nos.5838 of 1999 and 1927 of 1999, have become infructuous. The Reference (IDA) No.781 of 1987 was not stayed and the matter proceeded before the Labour Court. Therefore, the challenge to the Awards I and II has receded to the background. The Company has led evidence to prove its charges levelled against the workman and the Labour Court after considering that evidence led before it has concluded that the Reference (IDA) No.781 of 1987 must be rejected. In these circumstances, Writ Petition Nos.5838 of 1999 and 1927 of 1999 are dismissed as infructuous. 8. I will now deal with the Writ Petition No.7154 of 2004. The Labour Court in Award Part III has considered the documentary evidence on record which included the registers in respect of slaughter record at Exhibits C-17 and C-18. The Goods Received Notes were produced at Exhibits C-12 to C-15. The evidence led by the Company of Dr. Dhananjay Hari Gagre at Exhibit C-41 and of the workman at Exhibit C-36 have also been considered by the Labour Court. On the evidence led before the Labour Court, it has found that the workman had in fact WP/5838 & 1927/1999 a/w. WP/7154/2004 6 inflated the figures in the registers and in the Goods Received Notes. The Labour Court held that the workman had deliberately recorded the wrong weight of the carcasses received in his own handwriting in the registers from 1983 to 1984. The Labour Court then observed that there was no indication from the evidence on record that the workman had committed a mistake but that he had deliberately inflated the figures in order to benefit himself. According to the Labour Court, it was not necessary for the Company to examine the suppliers to prove that they had paid illegal gratification to the workman. The figures were not written by the Production Manager but the workman himself who came into immediate contact with the suppliers. The Labour Court also considered the fact that the workman had admitted his conduct when the two show cause notices were issued to him and had, in fact, paid Rs.3,000/- to the Company from Rs.15,000/-, which was allegedly lost by the Company due to the conduct of the workman. The workman’s contention that he was forced to admit that he had committed the misconduct alleged against him has not been believed by the Labour Court. It has observed that the misconduct was of a grave and serious nature for which the maximum punishment of dismissal was warranted. 9. Mr. Jadhav, the learned Advocate for the workman, submitted that the Labour Court has proceeded on presumptions rather than hard evidence to conclude that the workman had in fact committed any misconduct. He submitted WP/5838 & 1927/1999 a/w. WP/7154/2004 7 that the Labour Court had arrived at contrary conclusions while deciding the earlier Awards and Award Part III in as much as it had disbelieved the confessional statement in the earlier Awards, while it had accepted it in Award Part III. He then submitted that the Production Manager was equally responsible and action ought to have been taken against him as it was as per his dictates that the workman had noted the weight of the carcasses supplied. 10. Having considered the submissions of the learned Advocates for the parties, in my opinion, the Labour Court has not committed any error in accepting the evidence led by the Company. Registers and Goods Received Notes were filed before the Labour Court by the Company. After considering this documentary evidence on record, the Labour Court has drawn a possible conclusion, namely, that it was because of the acts of the workman that inflated figures were recorded in the registers and the Goods Received Notes in respect of the weights of the carcasses. The Labour Court has found that it was only the workman who could have manipulated the records to suit the suppliers in order to gain from the figures of excess weight. The submission of Mr. Jadhav that the Labour Court has recorded contrary findings is without merit. It has held that the workman has committed the misconduct based on the evidence recorded before it. In support of these findings it has also relied on the confessional statement of the workman and his conduct of reimbursing a part of the loss suffered by the Company. This does WP/5838 & 1927/1999 a/w. WP/7154/2004 8 not mean that it has concluded that the workman is guilty of the misconduct only on the basis of the confessional statement. The Labour Court has arrived at a possible conclusion and the findings recorded by it are not perverse. There is no need for this Court to interfere with the Award in its writ jurisdiction. 11. The Labour Court for the cogent reasons has recorded that the punishment of dismissal was not shockingly disproportionate. In these circumstances, in my view, there is no need to interfere with the Award of the Labour Court. 12. The Writ Petitions are dismissed. 13. Rule discharged.