1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7217 OF 2008 Dnyandeo Hardeo Patil. ...Petitioner. Vs. M/s.Dujodwala Product Ltd. & Ors. ...Respondents. .... Mr. V.P. Patil for the Petitioner. Mr. A.K. Jalisatgi with Mr.Amol B. Desai for the Respondents. ..... CORAM : DR. D.Y.CHANDRACHUD, J. November 24, 2008. P.C. The Petitioner was dismissed from service for having committed a theft of property belonging to the employer. The Labour Court allowed the complaint and directed the employer to grant reinstatement with full back wages holding that the employer has committed unfair labour practices under clauses (a), (b), (d), (f) and (g) of Item 1 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Industrial Court allowed the revision filed by the employer, set aside the judgment of the Labour Court on the ground of perversity and 2 dismissed the complaint of unfair labour practices. These proceedings have been instituted in order to challenge the order of the Industrial Court. 2. The Petitioner joined service with the First Respondent as a Maintenance Fitter. The allegation is that on 23rd July 2002 while he was leaving the premises of the employer upon completing his shift duties at 7 a.m., the two wheeler which was being driven by the Petitioner was searched and a slab of camphor weighing 5 kg. was recovered. The First Respondent, it is an admitted position before the Court, engages in the manufacture of camphor and its by products. The Petitioner addressed a letter dated 24th July 2002 admitting his guilt and stating that his two wheeler was searched by the Security Guard while he was leaving after the completion of his duty; that he had handed over a key of the luggage compartment to the Security Guard and upon opening it, a slab of camphor weighing 5 kg. came to be recovered. 3. A notice was issued to the Petitioner on 23rd July 2002 3 calling upon him to submit his explanation within 24 hours, failing which it was stated that action as would be deemed fit, including by way of termination, would be taken. The services of the Petitioner were terminated on 24th July 2002. According to the management, there was no reply to the notice to show cause. 4. A complaint of unfair labour practices was instituted by the Petitioner before the Labour Court. In the complaint, the Petitioner averred that in response to the notice to show cause, he had submitted a letter dated 24th July 2002 denying the allegations. The Petitioner further averred in para 3(d) that when he had completed his duties and was going out of the premises of the factory, the Security Guard called upon him to open the luggage compartment and the slab of camphor was recovered from it. The contention of the Petitioner was that he was compelled to resign under coercion on 23rd July 2002. 5. The Labour Court while allowing the complaint of unfair labour practices, placed a considerable degree of reliance on a letter 4 purported to have been written by the Petitioner on 24th July 2002 in response to the notice to show cause issued by the employer. In its order in revision, the Industrial Court has commented adversely on the conduct of the Petitioner in so far as the letter dated 24th July 2002 is concerned, and in my view, with justification. Before the Labour Court, both the parties had adduced evidence. In the course of his Examination-in-Chief, the Petitioner did not refer to the letter dated 24th July 2002 purported to have been sent by him in response to a notice issued by the employer. In fact, during the course of the cross-examination, the Petitioner admitted that his services were terminated after the show cause notice as he had failed to reply to the notice. The cross-examination of the Petitioner was completed on 4th May 2005. On 28th June 2005, the Petitioner filed an application to place certain documents on record on the ground that during his cross-examination the employer had referred to certain documents and the Petitioner also admitted them but, that they could not be brought on record since they were not traceable. Those documents included the letter of appointment (Exh.A), the notice to show cause (Exh.B), the letter of termination (Exh.C) and the complaint lodged 5 with the Police Station (Exh.D). In the index to the compilation listing out the documents, immediately below Exh.B which was the show cause notice, there was a hand written addition making a reference to the reply dated 24th July 2002. The employer filed a reply stating that all these documents except the letter dated 24th July 2002 were already marked in evidence, and the reply dated 24th July 2002 was fabricated. The employer stated that as a matter of fact no reply had been filed to the Show Cause Notice. 6 6. On these facts, the Industrial Court correctly held that the Petitioner had failed to prove that he had replied to the notice to show cause and that a surreptitious attempt had been made, after the evidence of the Petitioner was concluded, to place on the record an alleged reply to the notice to show cause though the document had not been proved. The material on record supports the conclusion of the Industrial Court. The Petitioner abused the process of the Court. Evidently, after realization dawned that the Petitioner had not replied to the notice, an attempt was made to surreptitiously bring a copy of the alleged reply dated 24th July 2002 on record. In any event, it is clear that the letter has not been proved in evidence. 7. However, the matter cannot rest only with the conduct of the Petitioner. Since the Petitioner failed to submit a reply, the employer proceeded to terminate his services. No disciplinary enquiry was held. The employer has two submissions in this regard. Firstly, it was urged that there was no necessity to hold a disciplinary enquiry in view of the admission of misconduct contained in the Petitioner's letter dated 24th July 2002 admitting the recovery of 7 property belonging to the employer from the luggage compartment of the two wheeler. Secondly, it is submitted that before the Labour Court evidence was adduced by the employer to sustain the charge of misconduct. 8. The matter can be analysed from both these perspectives. The employer sought an opportunity before the Labour Court in paragraph 3(g) of his Written Statement to lead evidence in support of the charge of misconduct. Evidence was adduced on behalf of the employer and the workman. On behalf of the employer, evidence was adduced of the Shift Supervisor who deposed to the relevant facts relating to the recovery of a slab of camphor from the luggage compartment of the two wheeler belonging to the workman. The Industrial Court has observed that a clear attempt was made on behalf of the workman to improve his case. In paragraph 3(d) of the Complaint of unfair labour practices, the averment was that the workman had been called upon by the Security Guard to open the luggage compartment of his two wheeler while he was leaving the premises after the completion of duties. However, in the course of his 8 Examination-in-Chief, the workman sought to depose that the vehicle was old and that the lock to the luggage compartment was not working as a result of which, the compartment was open. The pleading in the complaint were to the contrary. Moreover, in his letter dated 24th July 2002, the workman stated that the luggage compartment was opened with a key provided by him to the security guard. The workman had in fact, by his letter dated 24th July 2002, admitted the recovery of a slab of camphor from the luggage compartment of his vehicle stating that the compartment was opened with a key which was provided by him to the security guard. Counsel appearing on behalf of the workman has submitted that this admission does not establish a theft. Admittedly, recovery was made of property belonging to the employer from a vehicle which was under the control of the Petitioner and after the compartment was opened with a key which was supplied by the Petitioner. The ingredient of the misconduct complained of is, therefore, duly proved. Thus, besides the workman's letter dated 24th July 2002 which contained an admission of material facts, the employer also established the misconduct by leading evidence before 9 the Labour Court. The ground which weighed with the Labour Court has correctly been found to be erroneous in the order passed by the Industrial Court in revision. There was a clear perversity in the approach of the Labour Court which was corrected in revision. 9. For all these reasons, no case for interference is made out. The petition shall accordingly stand dismissed. .......