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IN THE HIGH COURT OF BOMBAY
Hanumant Pandurang Indalkar
VERSUS
Tata Engineering and Locomotive Co. Ltd.
Decided no: DECEMBER 23, 2005
Held, that once the enquiry has been vitiated because it was not held in a fair and proper manner, any evidence led before the Enquiry Officer cannot be read as evidence before the labour Court. The Company is entitled to examine all its witnesses afresh before the labour Court and the workman is then given an opportunity to cross-examine them. Having found that the enquiry was vitiated, it was necessary for the labour Court to direct the Company to lead evidence afresh. Had Security Officer made the same averments as he had stated before the Enquiry Officer by filing an affidavit in lieu of examination-in-chief before the labour Court, it could have been accepted as fresh evidence before the labour Court. However, the Company chose not to produce the material or the statements made by Security Officer before the Enquiry Officer, afresh before the labour Court and merely re lied on the examination-in-chief recorded by the Enquiry Officer. This procedure is highly irregular and, therefore, the evidence of Security Officer cannot be accepted. Therefore, one has to now consider whether the evidence of Mudkanna was sufficient to bring home the charge against the petitioner. Mudkanna has been examined before the labour Court and cross-examined by the workman. His evidence has been considered by the labour Court, w ho has found that the evidence indicated that the petitioner had been rightly charge-sheeted and that the charges levelled had been proved. There is no reason to differ from the view taken by the labour Court, AIR 1975 SC 1900 and AIR 1973 SC 1227, Rel. on.
Industrial Disputes Act, 1947 - Schedule II, Item 3 - Dismissal - On ground of misconduct - Abusive language against superior officers - Labour Court order of discharge - Justification of - Held misconduct duly proved - Past record of delinquent showed good work - Conversion of order to discharge justified. - The question now remains is whether the Petitioner ought to be discharged from service for the acts of misconduct committed by him. Mudkanaa in his evidence had admitted that the Petitioner had been rewarded for good work. The counsel for the Company submits that besides this incident on and the abusive language used by the Petitioner, there was no other earlier act of misconduct on the part of the Petitioner. He, however, submits that the misconduct which had been proved against the Petitioner is sufficient to dismiss him from service. The Labour Court having taken a lenient view in the matter by directing that the dismissal be converted to discharge, the counsel urges that this Court should not interfere with the punishment awarded.
Industrial Disputes Act, 1947 - Schedule II, Item 3 - Dismissal on misconduct - Two enquiries and two charge-sheets - One enquiry vitiated - Material obtained in enquiry relied - Finding enquiry vitiated, necessary for labour Court to direct company to lead evidence afresh - Relying only the material in enquiry, not proper. - Once the enquiry has been vitiated because it was not held in a fair and proper manner, any evidence led before the Enquiry Officer cannot be read as evidence before the labour Court. The company is entitled to examine all its witnesses afresh before the labour Court and the workman is then given an opportunity to cross-examine them. Having found that the enquiry was vitiated, it was necessary for the labour Court to direct the company to lead evidence afresh. Had Cariappa made the same averments as he had stated before the Enquiry Officer by filing an affidavit in lieu of examination-in-chief before the labour Court, it could have been accepted as fresh evidence before the labour Court. However, the company chose not to produce the material or the statements made by Cariappa before the Enquiry Officer, afresh before the labour Court and merely relied on the examination-in-chief recorded by the Enquiry Officer. This procedure is highly irregular and, therefore, the evidence of Cariappa cannot be accepted.
( 2 ) THE Petitioner was in service with Tata engineering and Locomotive Company Limited, Respondent no. 1 herein (hereinafter referred to as "the Company") as a Millwright Mechanic in the Auto Division of the companys Pimpri Works. The Petitioner was one of the activists of the Telco Kamgar Sanghatana, one of the two unions operating in the establishment of the Company. The other Union was the Telco Employees Union. On 27th may 1988, a transfer order was issued to the Petitioner transferring him from Chinchwad to Pimpri. A charge-sheet was issued to the Petitioner on 29th october 1988, inter alia, for using abusive language against his superiors. A second charge-sheet was issued on 25th March 1989 for commission of acts of violence on the factory premises on 15th March 1989. Separate enquiries were held in respect of both the charge-sheets by two different Enquiry Officers. By an order dated 7th March 1991, the Petitioner was dismissed from service. The criminal proceedings which had been instituted by the Company against the Petitioner for the acts of violence allegedly committed by him on 25th march 1989 ended in an acquittal on 30th October 1993.
( 3 ) AFTER his dismissal, the Petitioner invoked the machinery available under the provisions of the industrial Disputes Act, 1947 and obtained a Reference to the Labour Court for adjudication of his dispute regarding reinstatement with continuity and full back wages. Pleadings were filed by both the parties. Various contentions were raised by the Petitioner to submit that the enquiries conducted against him were in violation of the principles of natural justice. According to the Petitioner, he was not furnished the enquiry report before imposition of the penalty which has caused great prejudice to him and, therefore, the entire enquiry was vitiated. After evidence of both the parties was led, the Labour Court came to the conclusion that the enquiry which was instituted in respect of the charge-sheet dated 29th October 1988 i. e. with regard to the use of abusive language, was fair and proper. The Labour Court, however, came to the conclusion that the Company had violated the principles of natural justice while conducting the enquiry in respect of the charge-sheet dated 25th March 1989 i. e. for violent and riotous behaviour on 15th March 1989. The Labour Court permitted the Company to lead evidence afresh in respect of the second charge-sheet. Accordingly, the Company examined two witnesses, V. G. Mudkana and S. M. Cariappa. The Petitioner examined himself in rebuttal. Interestingly, the examination in chief recorded by the enquiry Officer in respect of Cariappa was treated as examination in chief of that witness before the Court although the enquiry had been vitiated.
( 4 ) ON a consideration of the evidence led, the labour Court came to the conclusion that the punishment of dismissal should be substituted by one of discharge from service. Accordingly, the Petitioner was discharged from service and the Company was directed to pay all legal dues to the Petitioner including gratuity, provident fund and all other legal dues.
( 5 ) MR. SHAIKH appearing for the Petitioner submits that the enquiry in respect of the charge-sheet regarding the use of abusive language cannot be considered to be fair and proper
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