The importance of preponderance of probabilities in proving misconduct and the admissibility of hearsay evidence in domestic enquiries.

1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. The petitioner/Corporation is aggrieved by the judgment and order dated 31/10/2014 by which Complaint (ULP) No.12/2007 filed by the respondent/employee has been allowed and the impugned order of punishment dated 12/03/2005 directing stoppage of 3 increments permanently, has been set aside. Costs of Rs.5,000/has been awarded to the respondent.

3. I have heard Mr.Bagul, learned Advocate for the petitioner/Corporation and Mr.Muley, learned Advocate for the respondent at length.

4. The respondent/employee was working as a Driver with the petitioner/Corporation. He was charge sheeted on 06/09/2002 on the basis of a complaint that he had outraged the modesty of a lady passenger during the night journey in the bus. After conducting a departmental enquiry, the order imposing punishment was issued and the respondent was awarded the punishment of permanent stoppage of 3 increments. By order dated 12/03/2005, the first department appeal preferred by the respondent was partly allowed and the order of permanent stoppage of 3 increments was reduced to permanent stoppage of 2 increments. The respondent/employee preferred a second department appeal. By order dated 21/02/2006, the second appeal was rejected and the order passed on the first appeal of stoppage of two increments was sustained.

5. The respondent challenged the punishment before the Industrial Court by filing a ULP complaint under the MRTU and PULP Act, 1971. The enquiry as well as the findings of the Enquiry Officer were questioned.

6. By an earlier judgment dated 28/01/2013, the Industrial Court had allowed the complaint and had granted relief of restoring the respondent to his original pay scale by setting aside the order of punishment. The respondent had challenged the said judgment in WP No.3095/2013 before this Court. By judgment and order dated 03/05/2014, the petition was allowed and the judgment was quashed and set aside thereby directing the Industrial Court to frame 2 issues with regard to the fairness of the enquiry and the findings of the Enquiry Officer.

7. Pursuant to the said directions, the Industrial Court considered the grievance of the respondent and concluded by order dated 19/07/2014 that the findings of the Enquiry Officer are perverse. Consequentially, the enquiry stood watered down and the petitioner led evidence to justify the order of punishment. By the impugned judgment, the complaint was allowed and the order of punishment of stoppage of 2 increments was quashed and set aside.

8. The petitioners have strenuously contended that the Industrial Court has ignored the testimony of the Bus Conductor Mr.P.A.Karpe, who was travelling with the respondent in the same bus on 02/06/2002. It is submitted that the Industrial Court has refused to consider the evidence of Mr.Karpe only on the ground that he could not have remembered the incident which occurred 12 years ago and hence there is no reason to believe his affidavit filed in lieu of examination-in-chief.

9. The Industrial Court has virtually applied the principles of criminal jurisprudence to this case. Though it is legally acceptable and owing to the amended provisions of the CPC, filing of examination in chief by way of an affidavit is permitted, the Industrial Court, rather than looking at the matter before it, has brushed aside the testimony of the only witness of the Corporation.

10. Mr.Bagul further submits that the Industrial Court has erroneously concluded that the incident that is reported to have occurred, cannot possibly happen and hence the charge levelled upon the respondent does not appear to be truthful. He submits that there is no reason for the Industrial Court to apply such a logic when the entire evidence was before it and it could have dealt with the said evidence as was permissible in law. He, therefore, submits that the impugned judgment is perverse and erroneous.

11. Mr.Muley, learned Advocate s