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IN THE HIGH COURT OF BOMBAY
Sunanda Hari Kadam
Versu
Manisha Hospital
MAY 4, 2006
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Section 44 - Judgment of Labour Court was consistent with the evidence - Revisional jurisdiction of Industrial Court - Re-appreciation of evidence by the Industrial Court is not legally permissible. - Perusing the judgment of the Labour Court no wrong test of law is applied by the Labour Court in setting aside the order of dismissal of the charge-sheeted worker. The judgment of the Labour Court is consistent with the evidence. In fact the Labour Court has rightly held that there is no evidence that co-worker was assaulted by the charge-sheeted workman. Non-production of any material or record regarding medical treatment, undertaken by the alleged assaulted worker makes it clear that charge of misconduct of assault is not established. Mere complaint of the assaulted co-worker does not establish any charge of assault on co-worker. Complaint is made in beginning and in fact the statements made in the complaint must be established and proved by leading necessary evidence. The respondent Management by producing document which contained the analysis of evidence which was led before trial Court invited the Industrial Court to embark upon the exercise of reappreciating of evidence which is legally not permissible in limited revisional jurisdiction under Section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. In the light of the matter the Labour Court was right and justified in coming to the conclusions which it has come on the material before him and the Industrial Court has erred in interfering with the said findings by appreciating and reappreciating evidence and coming to the different conclusions. Therefore, the order of Industrial Court dated 18th March, 2002 in Revision Application is unsustainable in law and the same is required to be set aside.
( 2 ) SOME of the facts of the present case are as under:-"one Hari Ganpat Kadam was an employee of respondent hospital. He was appointed as ward Boy since 1967 and had put in twenty years of service. The said worker was also a Union leader and was actively participating in the union Activities. The respondent no. 1 charge sheeted the petitioner for charge of assaulting co-workers. He was suspended from service with effect from the date of charge sheet dated 26th june, 1987. After replies were filed, an enquiry was conducted and ultimately he was dismissed from service on 10-10-1987. After his dismissal, said worker filed a complaint bearing Complaint (ULP) No. 283 of 1987 before the Labour Court under Item 1, Schedule IV of mrtu and PULP ACT. In part I award a finding was recorded by the Labour Court that the enquiry was not fair and proper and gave the management an opportunity to prove the charges before the court. "
( 3 ) BEING aggrieved by the said Part I award a Revision Application was preferred by the Respondent Management bearing Revision application (ULP) 78 of 1994. Said Revision application was rejected by the Industrial court, by remanding the matter back to Labour court for a fresh decision on the preliminary issue. Thereafter a Writ Petition was filed by the said worker being Writ Petition No. 1377 of 200 and by an order dated 6th July, 2000 this Court set aside the said order passed by the Industrial Court of remanding the matter back to the Labour Court and this Court directed that the respondent no. 1 Management should lead evidence and prove charge before the Labour Court.
( 4 ) THEREAFTER first respondent examined various witnesses in support their case before the Labour Court. After examining the said various witnesses, and after hearing the parties the Labour Court passed an order and judgment dated 3rd March, 2001, holding that the misconduct is not proved against the workman and directed that the said workman should be reinstated with continuity of service and full back wages. The Labour Court gave a finding that the charge of assault is not proved by the respondent Management, because no evidence of the doctor has been produced or medical report to show that there was any assault on the said co-workman. The Management has relied upon only oral evidence in support of their case and did not rely upon any documentary evidence except the complaint of co-worker. The said oral evidence of witnesses was disbelieved by the Labour Court, on the ground that though said co-worker is working in the hospital, where doctors are available all 24 hours, he did not take any medical treatment for injuries, but went to the private doctor shri Gaikwad, and the said Gaikwad is neither examined, nor any documents are produced to show that he has taken any treatment from said dr. Gaikwad. It is also observed by the labour Court that the evidence of the said co-worker that he has taken medicine from Dr. Gaikwad for 3-4 days at Vikroli is not believable, when he was residing in the hospital during the said period. It has been further observed by the Labour Court that the evidence produced by Management of other co-witnesses also does not inspire the confidence of the Court. The Labour Court has also not accepted the evidence of watchman as credible, because he has deposed in his evidence that there was assault in his presence, but he heard horn of the Car coming to the main Gate and therefore he went to open the said Gate. He has further deposed that when he came back, he found nobody on the scene and he thought that everything is sorted out, as both co-workers had left the said place. The Labour Court has analysed the evidence in detail, of each of the witnesses and has come to the conclusion that the charge of assault has not been proved.
( 5 ) BEING aggrieved by the s
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