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2008 Supreme(Bom) 1012
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE S.C. DHARMADHIKARI
Retreat Unit of Makewaves Sea Resort Pvt. Ltd. – Appellant
Versus
Ramesh B. Walmiki - respondent
W.P. No.1076 of 2008
Decided On: 17-07-2008
For the Petitioner:V.P. Vaidya, Advocate. For the Respondent:Shukla, Advocate
The central legal point established in the judgment is the importance of thoroughly examining evidence and applying the principles of justice and fairness in labour disputes. The judgment also clarified the necessity for recalling a witness and the duty of the courts to properly frame applications and indicate the relevant provisions of law.
Headnote:
Unfair Labour Practice - M.R.T.U. and PULP Act, 1971 - [M.R.T.U. and PULP Act, 1971] - The court discussed the unfair labour practice alleged by the workman and the fairness of the enquiry conducted by the petitioner under the M.R.T.U. and PULP Act, 1971. The court emphasized the importance of applying the principles of justice and fairness in labour disputes and highlighted the need for thorough examination of evidence before passing orders.
Fact of the Case:
The petition challenged an interlocutory order passed by the 2nd Labour Court, Mumbai in a complaint alleging unfair labour practice under the M.R.T.U. and PULP Act, 1971. The respondent workman, an employee of the petitioner's hotel/lodging boarding business, was dismissed following an enquiry for serious acts of misconduct. The workman filed a complaint, and the Labour Court framed preliminary issues regarding the fairness of the enquiry and the perversity of the findings.
Finding of the Court:
The court found that there was no necessity to recall the enquiry officer for cross-examination on the perversity of his findings, as the issue could be decided based on arguments and the records of the enquiry. The court criticized the lower courts for not applying their minds to all aspects, including the interest of justice, before passing orders, and interfered with the orders under Article 226 of the Constitution of India.
Issues: The issues revolved around the fairness of the enquiry conducted by the petitioner and the perversity of the findings recorded by the enquiry officer. The court also addressed the legality of recalling a witness and the duty of the courts to properly frame applications and indicate the relevant provisions of law.
Ratio Decidendi: The court emphasized the importance of thoroughly examining the evidence and applying the principles of justice and fairness in labour disputes. It clarified that the necessity for recalling a witness should be explained, and the courts should apply their minds to all aspects, including the interest of justice, before passing such orders.
Final Decision: The petition was allowed, and the impugned orders of the lower courts were set aside. The court clarified that the respondent workman could argue the fairness of the enquiry and the perversity of the findings without recalling the witness, and kept the arguments on perversity open to be canvassed on the basis of available material.
S.C. Dharmadhikari, J.
Heard both sides. Mr. Shukla who appeared before this Court on earlier occasion had waived service for respondent. With their consent petition was heard finally and was reserved for orders. Accordingly it has been placed today for orders.
2. The petition is directed against an interlocutory order passed by the learned Judge of the 2nd Labour Court, Mumbai dated February 20, 2008 in complaint (ULP) No. 273/2004. An application was made during the course of hearing of the complaint (U-8) by the respondent workman, upon which a reply was filed by the petitioner, which was taken on record and marked as Exhibit C-12.
3. Complaint is at the instance of the workman alleging unfair labour practice under M.R.T.U. and PULP Act, 1971. It is not necessary to make a detailed reference to the allegations in the complaint and the unfair labour practice alleged inasmuch as the controversy before the Court below in the above application was very limited.
4. Suffice it to state that the petitioner runs a hotel/lodging boarding business. The respondent was its employee. A show cause notice came to be issued to him on June 2, 2004 alleging serious acts of misconduct. A explanation was given to the same in writing which was not found satisfactory and that is how the petitioner management appointed an enquiry officer. The Enquiry Officer submitted his findings on June 17, 2004. A show cause notice with regard to the proposed punishment was issued but there was no reply thereto. Accordingly, a dismissal order was passed on July 5, 2004.
5. Aggrieved by this action the above complaint is filed and the same is pending. Petitioner filed written statement denying all the allegations in the complaint. The Labour Court framed preliminary issues with regard to fairness of the enquiry and perversity of the findings therein. It appears that on the preliminary issues, evidence was led on behalf of petitioners – original respondents. Witnesses were examined which included enquiry officer. The enquiry officer has deposed with regard to the conduct of the enquiry and the only deposition with regard to the controversy in the application referred to above and in this petition is to be found in para 3 of his examination-in-chief. The said para reads thus
"3. I say that I have given my findings of the enquiry on June 17, 2004. My findings are based on material on record available before me in the enquiry. The Enquiry proceedings at page No. 1 to 12 of Exhibit C-8 is signed by me as well as the persons present in the enquiry. The documents produced before me in the enquiry are at pages 13 to 34 of Exhibit C-8. My report and findings of enquiry are at pages 35 to 46 of Exhibit C-8 are signed by me. The contents of the same are true.”
6. It appears that this witness was offered for cross examination of the respondent workman and he was cross examined. His cross examination was conducted on two days and later on the same was concluded. The cross examination concluded on February 18, 2008. Prior thereto, the workman had stepped into the witness box. He filed his affidavit in lieu of examination-in-chief and was cross examined by the petitioner management.
7. After the enquiry officer's evidence was concluded, the subject application was preferred which was numbered as Exhibit U-8. The application reads thus:
"The undersigned considering that, perversity of the findings will be decided after fairness of enquiry, did not cross examine witness of the company on Findings. It is therefore prayed that witness may please be recalled to be crossed on the other issue i.e. Finding."
7-A. It appears that the respondent requested the Court that the enquiry officer could not be cross examined with regard to perversity of his findings and, therefore, the witness (enquiry officer) Mr. Vijay Kumar Thekedatt be recalled. This application was opposed and it was pointed out by the petitioner management that the enquiry officer was cross examined by the Advo
