vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4149 OF 1997 WRIT PETITION NO.4149 OF 1997 WRIT PETITION NO.4149 OF 1997 Advani Oerlikon Ltd. ... Petitioner V/s. Suresh J. Shenoy & anr. ... Respondents Mr.C.U. Singh for Petitioner Mr.V.P. Vaidya for Respondent CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: AUGUST 27, 2008 AUGUST 27, 2008 AUGUST 27, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: . The petitioners have challenged award part II in Reference (IDA) No.24 of 1988 passed on 7.4.1997. By this award, the Labour Court has directed the reinsatement of the workman with continuity of service and 30% of the backwages w.e.f. 6.12.1986. 2. Essentially, the award has been criticised on behalf of the petitioners as the Labour Court has held the charge of theft has not been proved without considering the voluminous evidence on record. 3. The facts giving rise to this award are briefly as follows: Respondent no.1 joined service with the petitioners in : 2 : 1976 and was confirmed two years thereafter. He continued to work as an electrician with the petitioners. It is the case of the petitioner that on 25.9.1985 when respondent No.1 was leaving the factory premises he was found carrying an electric transformer of Electrode Concentricity Tester which the petitioners claim was stolen from their factory. The security guard and the security supervisor detained respondent No.1 and noted the incident in the diary. After the diary entry was registered, a written report of the supervisor was submitted to his superiors. When he was apprehended Respondent No.1 had allegedly stated that the transformer belonged to him and that he would be able to furnish the receipt for the purchase of the transformer. He was therefore asked to produce the same on the next day. However, on the next day the Respondent was unable to produce the receipt. According to the petitioners, a confessional statement was recorded by Respondent No.1 in his own handwriting and tendered to the petitioner. A show-cause notice was issued to him on the same day. Respondent No.1 replied to the show-cause notice denying that he had committed any theft. He also stated that the confessional statement was extracted from him under threat of being handed over to the police. A chargesheet was later issued to him and a domestic enquiry was held against him. The petitioner examined several witnesses before the enquiry officer. The : 3 : enquiry officer found that respondent No.1 was guilty of the charges levelled against him i.e. of theft and of having committed an act subversive of discipline on the premises of the establishment. By an order of 6.12.1986, the petitioners dismissed respondent No.1 from service. 4. An industrial dispute was raised by respondent No.1 which was referred for adjudication before the Labour Court and registered as Reference (IDA) No.24 of 1988. After pleadings were filed parties agreed that respondent No.1 had not been permitted to cross-examine some of the witnesses in an appropriate manner. The parties also agreed that award part I could be passed by the Labour Court, directing that the witnesses who were not offered for cross-examination by the Respondent should be cross-examined in Court so that the questions which were disallowed could be put to those witnesses in Court. Respondent NO.1 was also directed to offer himself for cross-examination. Accordingly, award part I was passed on 15.9.1994. 5. Thereafter, the witnesses who had been examined before the enquiry officer were offered for cross-examination before the trial Court so that the Respondent No.1 could cross-examine them on points which had been disallowed by the enquiry officer. : 4 : Accordingly, all the witnesses except one witness Mr.Borkar, were cross-examined in Court. Mr.Borkar had been examined and crossexamined before the enquiry officer, and therefore, he was not offered him for cross-examination in Court. The Respondent-workman also offered himself for cross-examination. 6. The Labour Court by award part II has held that the petitioners had not proved the charge of theft and that only the charge of having committed an act subversive of discipline on the premises of the establishment have been proved against the workman. A perusal of the award indicates that the Labour Court has not discussed the evidence on record at all. In two or three sentences, the Labour Court has concluded that the petitioners had not proved that the petitioner had committed theft in respect of their property as there was no record to indicate that the transformer which was allegedly stolen, belonged to the petitioner. There is no discussion whatsoever of the evidence led either before the enquiry officer or the cross-examination before the Labour Court. In fact a novel procedure was adopted by the Labour Court, possibly due to which the Labour Court has not appreciated the evidence on record. The Labour Court allowed the evidence to be led before it without concluding that the enquiry was not fair and proper. However, as both the parties agreed to this : 5 : procedure being adopted and that award part I should continue, I am not required to consider whether the procedure adopted by the Labour Court was correct. 7. In any event, the Labour Court has erred in not considering the oral and documentary evidence on record. Admittedly, the enquiry proceedings including the documents filed at the enquiry had been filed before the Labour Court. The Labour Court was bound to consider that the material alongwith the evidence led before it since the parties had agreed to this procedure being adopted. Not having done so, it would be appropriate to remand the matter to the Labour Court for a decision on merits. 8. The Reference (IDA) No.24 of 1998 is therefore, remanded to the first Labour Court at Mumbai. The Labour Court shall hear the parties and decide the Reference on the basis of the material on record, which includes the evidence and documents before the enquiry officer as well as the additional evidence led before it. The parties shall appear before the Labour Court on 6.10.2008 at 10.30am. The Labour Court shall dispose of the Reference by 31.12.2008 since the Reference is of the year 1988. The R & P should be sent down to the Labour Court immediately. Writ to be sent to the Labour Court immediately. : 6 : 9. Rule made absolute. No order as to costs.