1996 Supreme(Bom) 498

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
V.S. Sirpurkar, J.
Mannalal s/o Ramprasad Yadao ..... Petitioner.
Versus
Presiding Officer, Second Labour Court another ...... Respondents.
Writ Petition No. 1773 of 1984, decided on 9-9-1996.
Advocates appeared :
R.B. Pendharkar, for the petitioner.
S.C. Mehadia, for respondent No. 2.

Headnote:Section 75-See Industrial Disputes Act, 1947-Section 11-A.

       Article 311(1)- Transport Corporation Act, 1950, Section 14(3)(b)Maharashtra State Transport Service Regulations, Reg. 80-Challenge to dismissal-Ground - Punishment awarded by Divisional Traffic officer-Appointment by the Divisional Controller-Who is a higher authority-Competence of punishing authority challenged-Held-S.T. Staff is not a Civil Post-Article 311(1) not applicable-Nominating disciplinary authority as per rules framed by corporation cannot be challenged-Not to be challenged-Nor his actions. There is no necessity to go to the general principles under Article 311(1) of the Constitution of India, as there is no challenge to the Rules. He further pointed out that, indeed, there was no murmur against these rules either by the Union or individually by the employees and more particularly the present petitioner.

       The rule in the present case is quite otherwise and, therefore, this authority is of no help to the petitioner. Similar is the case with the Division Bench judgment of this Court in Indraj D. Thakke v. State Bank of India, this was also a case of State Banks employee where a relief was sought on Regulation 55(2)(a) of the State Bank Regulations. The judgment in this case also terms on the rules because of which the ratio in the said judgment would not be applicable.

       Section 11-A-Consideration of-Previous record-Punishment-Dismissal for-Assaulting and abusing superiors-Plea-Past record to be seen for deciding gravity of punishment-Held-Delinquent already warned on his bully type behaviour in past-Such behaviour at work place and in public cannot be taken lightly.- The doctrine of de minimis non curat lex was relied upon by the Court and it was held that the law should not take notice of the trifles. Such is not the case here. That a reformative attitude should be taken, cannot also be accepted, for the simple reason that the petitioner had shown no remorse whatsoever. On the other hand, in his defence, the petitioner went on the substantiate it by contending that no such incident has every occurred and that all the superior officers had conspired against him to concoct a false case against him. No opportunity was sought for showing any remorse. Such course, therefore, cannot be, and was rightly not, taken by the concerned authorities.

       Section 11-A-Dismissal-Challenge to Industrial Court power-Ground-Enquiry alleged to be unfair-Held-Industrial Tribunal has to take case that there is no victimisation or unfair labour practice-Not to function as Court of appeal only on action of management.-It is difficult to put the Labour Court on that high pedestal. If, the Labour Court is viewed as an appellate Court, then there is undoubtedly a duty in the Labour Court to reappreciate the evidence and to examine the findings on the basis of reappreciation of the evidence. In the judgment of the Firestones case, the apex Court does not put the Labour Court should be satisfied with the findings and should display its satisfaction. The apex Court speaks of the power which was not there prior to the advent of Section 11-A of the Industrial Disputes Act. It will have, therefore, to be considered whether the Labour Court was alive to Section 11-A of the Industrial Disputes Act or left itself to be bound down by the earlier law.

       Section 11-A-Labour Court-Approach of-Regarding punishment-Challenge to dismissal-Reason-Assaulting and abusing superiors-Ground-Punishment relatively severe-Held-A superior beaten and abused publicly-Cannot termed the punishment as proportionately harsh. It cannot be forgotten that one such traveller was examined in the enquiry who fully supported the enquiry proceedings. There cannot be any hard and fast rule in the matter of punishment excepting that it should not be unduly harsh and that the Enquiry Officer and/or Labour Court should give an active consideration to the same. The Court has referred to the seriousness of the punishment and according to it that itself was sufficient enough for endorsing the finding of dismissal reached by the Enquiry Officer.

       Section 11-A-Bombay Industrial Relations Act, 1946, Section 78-Proceedings for criminal prosecution pending-enquiry-Resulting in dismissal-Challenged-Also attacking supervisor-Reason-Delinquent already an excused in criminal proceedings-Held-Contention is not tenable-Purpose of criminal proceedings and departmental proceedings not for same purpose-Acquittal by criminal Court cannot be taken as automatic exoneration of accused delinquent-According to counsel for petitioner, it was bound to be seen that there was a report made against the petitioner in respect of the alleged acts in the police station and the petitioner was prosecuted for the offence under Sections 353 and 294 of the Indian Penal Code. He, therefore, contended that in the wake of a pending prosecution, the enquiry could not have gone simultaneously as it would have unduly caused prejudice to the petitioner. He contended that this important question was not considered while giving a preliminary finding on the nature of the enquiry. It is true, that this aspect is not considered in the preliminary award. However, the learned counsel appearing on behalf of the Corporation, countered it by pointing out that the petitioner did not raise any objection to this enquiry, on the ground that criminal prosecution was pending. He pointed out that it was only at the time when the notice of punishment was replied to that the petitioner has feebly stated that enquiry could not have been properly conducted. Now, if, there was no demur by the petitioner against the enquiry being held, it was not incumbent for the enquiry officer to stop the enquiry, nor was it necessary for the Labour Court to stay the enquiry in fairness. If, the objection was not raised to the enquiry at all, the Labour Court was not even required to consider the question. That apart, while the criminal prosecution was in respect of the offences under Sections 353 and 294 of the Indian Penal Code, the charges which were levelled against the petitioner were not limited only to those offences. It may be that the substratum of the factual panorama may be similar, nay, even identical yet, there were number of charges which were not triable in the criminal prosecution, such as the destruction of the corporation record and unruly and undisciplined behaviour with the superior officers. Again, a close look at the charge-sheet would show that the waitresses were also not identical witnesses in the criminal trial and in the Departmental Enquiry. There is, therefore, no force in the contention of the counsel for petitioner that the enquiry should not have been held simultaneously with the criminal prosecution against the petitioner. Once that factual position is established, it would not be for the Labour Court to invite the judgment of the Criminal Court and then to consider as to whether the petitioner had really assaulted the Government servant on duty. That apart, the charges levelled against the petitioner in the enquiry could not be said to be identical to the charges levelled in the criminal trial. The material relied upon is also different. Court has already held that it was not necessary at all to stay the enquiry on the ground that it was identical with the criminal trial. No identity could be spelt out in the two. The Labour Court has proceeded to hold that it could not be said that there was no material available to the enquiry officer for holding that the petitioner was guilty of misconduct. It has approved that finding earlier by appreciation the evidence which, even if, deemed to be its duty, was complied with by it. The Labour Court has thereafter, found that, merely because, the Criminal Court handed out the acquittal to the petitioner that would not be automatic exoneration from the Departmental Enquiry.

       Maharashtra State Transport Service Regulations

       Regulation 80-See Constitution of India, Article 311(1).

       Transport Corporation Act, 1950

       Section 14(3)(b)-See Constitution of India, Article 311 (1).