W.P. No.5766 OF 2010 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5766 OF 2010 Sanjeevkumar R. Lahot ... Petitioner V/s. Cummins Diesel Sales & Services Ltd. ... Respondent Mr.P.M. Mokashi for Petitioner Mr.D.J. Bhanage for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: AUGUST 12, 2010 P.C.: 1. The Petitioner has approached this Court challenging both the award Part 1 and 2 passed by the Labour Court dismissing the Reference (IDA) No.190 of 2006. The first submission raised by Mr.Mokashi, appearing for the petitioner, is that the issues have not been framed correctly by the Labour Court. According to him, the Labour Court ought to have famed the issues thus: i) whether the enquiry held against the petitioner was fair and proper? ii) whether the evidence recorded by the enquiry officer were perverse? 2. According to the learned advocate, the Labour Court has instead framed the following issues: W.P. No.5766 OF 2010 : 2 : 1. Does the second party prove that enquiry conducted against him is not fair, proper and against the principles of natural justice? 2. Does the second party prove that there is not sufficient evidence to prove the misconduct before the enquiry officer? If yes does the first party prove that alleged misconduct of second party before the court? 3. Does the second party prove that first party illegally terminated services of the second party w.e.f. 04.02.2002? 4. Whether second party prove that he is entitled to reliefs claimed for? 5. What order? 3. He submits by framing the aforesaid issues, the Labour Court has caused grave prejudice to the petitioner as, had the Labour Court concluded that the findings of the enquiry officer were perverse it would have then led to the respondent company being required to lead evidence in Court to prove the charge against the petitioner. He relies on the judgment in the case of Bharat Forge Company Ltd. Vs. A.B. Zodge, AIR 1996 SC 1556. 4. The proposition of law enunciated by the Supreme Court is well settled. However, the submission of Mr.Mokashi is unsustainable. It is true that the two issues mentioned by him are normally framed by the Labour Court. If the Labour Court finds that a domestic enquiry is not held in a fair or proper manner or that the findings are perverse the employer has a right to lead evidence to establish the charge. In the present case, the Labour Court has instead framed an issue as to whether there was W.P. No.5766 OF 2010 : 3 : insufficient evidence before the enquiry officer to prove the misconduct. In fact the Labour Court has exceeded its jurisdiction to the benefit of the Petitioner. Rather than confining itself only to the findings of the enquiry officer as to whether they were perverse the Labour Court has reappreciated the entire evidence to ascertain whether there was sufficient evidence to prove the misconduct before the enquiry officer. After considering the evidence, the Labour Court has concluded that the evidence was sufficient to prove the misconduct and has therefore held, “there is nothing wrong in conclusion of the enquiry officer relying on management evidence”. In my opinion, the submission of the learned advocate is without merit. The Labour Court has considered whether the evidence on record indicates that the misconduct has been committed and in fact has exceeded its jurisdiction inasmuch as the perversity of the finding has been considered, besides sufficiency of the evidence before the enquiry officer. No prejudice has been caused to the petitioner by this course being adopted. 5. The other submission of Mr.Mokashi is that the enquiry was conducted in a language which was not known to the petitioner. He submits that the petitioner was a Hindi speaking person whereas the enquiry was conducted in Marathi. The Labour Court in paras 24, 25 and 26 of award part I has clearly observed that the petitioner was conversant with Marathi; that he had crossexamined the witnesses efficiently and competently in Marathi before the enquiry officer; that he had answered questions in Marathi during his deposition in Marathi. The Labour Court also observed that the workman had not objected to the use of the Marathi language for conducting the enquiry and that it appeared that his statement that he had objected orally was an afterthought. In my opinion, there is no need to interfere with these W.P. No.5766 OF 2010 : 4 : findings of the Labour Court. 6. The next submission of Mr.Mokashi was that the workman was not permitted to be represented by a co-workman. This argument also does not hold good. The workman it appears has written a letter dated 13.9.2001 indicating that he did not want to be represented by anybody at the enquiry. According to Mr.Mokashi, the workman was compelled to issue such a letter. Assuming this is correct, there is no other letter or statement or pleading before the enquiry officer indicating that he wanted to be represented by a particular person and that he was prevented from doing so because of the duress exercised by the officers of the company. In my opinion, no case for interference is made out. 7. Petition rejected.