JUDGMENT
B.N. Srikrishna, J
1. This writ petition under Article 227 of the Constitution of India impugns the order of the Industrial Court, Pune, dated 28th February, 1983, made in Revision Application (ULP) No. 59 of 1982.
2. The petitioner is a Co-operative Bank and the first respondent was employed by it as a clerk. He was entrusted mainly with the work of typing. Whenever any typewriter went out of order, he was required to get it repaired. He produced two bills dated 10.9.1979 and 7.6.1980 for repairs of the typewriters for Rs. 45/- and Rs. 60/-. He also produced separate vouchers which were purportedly signed by one S.P. Joshi and one S.N. Kulkarni, respectively. On the strength of these receipts and vouchers, purported to have been signed by S.P; Joshi and S.N. Kulkarni for the repairs of the typewriters, the first respondent collected money from the petitioner. It was later on suspected that the first respondent had played a fraud on the petitioner and that money had been collected by him by production of bogus receipts and vouchers. He was served with the chargesheet dated 7.7.1980. He was charged with the misconduct of having forged and fabricated documents and also of dishonest in connection with the business of the employer. As a result of the enquiry, the first respondent was found guilty and dismissed from service by an order dated 22nd September, 1980. The first respondent challenged the order of dismissal by his Complaint (ULP) No. 39 of 1980 before the second Labour Court, Kolhapur, alleging therein, inter alia, that the enquiry held against the first respondent was vitiated for failure to comply with the principles of natural justice and applicable rules, and that the ordef of dismissal passed against him amounted to grossly disproportionate punishment. He alleged that his dismissal amounted to unfair labour practice within the meaning of Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act).
3. The Labour Court, the Trial Court, recorded evidence initially on the aspect of the validity of the enquiry. Having come to the finding that the enquiry was vitiated, the Labour Court permitted the parties to lead evidence in support of the merits of the charge against the first respondent. The evidence showed that the concerned bills and the vouchers were purported to have been issued by one Best Typewriting Centre’. One Kelkar, husband of the Proprietor of Best Typewriting Centre, was examined before the Labour Court. The said witness brought with him the Rubber Stamp regularly used by his wife in connection with her business and pointed out that the Rubber Stamps on the receipts and vouchers were bogus. The defence taken by the first respondent was that he had actually carried out the repairs to the typewriters and, since the service rules did not permit him to claim money for such repairs from the petitioner he had been advised by two of his superiors to prepare bogus bills to collect the money. It was further suggested that one of them had stated that he knew some parties who were prepared to give bogus bills and he would help the first respondent in getting his claim passed if he was given a commission therefor. The concerned superior officers were examined before the Labour Court and denied these allegations made by the first respondent. The first respondent also gave his evidence before the Trial Court. Though opportunity was given, the first respondent failed to produce the two
persons alleged to be the signatories of the concerned two receipts and the two vouchers. After assessing all the evidence recorded before it, the Laoour Court came to the conclusion that the first respondent had tried to bring false evidence even in the Court. The Labour Court also recorded a finding that the circumstances clearly showed that the first respondent had himself prepared the bills which, to his knowledge, were forged and bogus and that he had received the payments thereupon. It also concluded that the first respondent had himself prepared the false bills, impressed false Rubber Stamps of Best Typewriting Centre and played fraud upon the Management of the petitioner by forwarding the said bills and supporting vouchers as genuine documents and collecting the money due thereupon. The Labour Court, therefore, recorded a finding that the first respondent was guilty of the misconduct alleged against him viz. dishonesty in connection with the business of the establishment. The Labour Court rejected the argument that the punishment of dismissal was disproportionate to the proved misconduct and held that there was no unfair labour practice engaged in by the petitioner in issuing the order of dismissal against the first respondent in the circumstances of the case.
4. Being aggrieved by the dismissal of his complaint, the first respondent challenged it before the Industrial Court, Pune, by a revision application purported to be under Section 44 of the Act. The Industrial Court, though it was also of the view that the first respondent had put forward different inconsistent and self-contradictory versions of his case from time to time, reappreciated the entire evidence on record, reversed the findings of fact recorded by the Labour Court and arrived at the finding that the misconduct alleged against the first respondent had not been proved and that therefore the petitioner had engaged in unfair labour practice within the meaning of Item No. 1 of Schedule IV of the Act. The Industrial Court therefore allowed the revision application, set aside the Trial Court’s order and directed reinstatement of the first respondent with continuity of service but without payment of back wages. This order is impugned in the present petition.
5. Mr. Dharap, learned Advocate appearing for the petitioner, vehemently cqntended that the Industrial Court exceeded the jurisdiction vested in it under Section 44 of the Act by reappreciating the evidence and reversing the findings of fact recorded by the Labour Court. He also contended that the jurisdiction to interfere with findings of fact under Section 44 of the Act was extremely limited and arose only if the findings were perverse. With reference to the facts on record, Mr. Dharap urged that the findings recorded by the Labour Court, as the Trial Court, were perfectly consistent with the evidence before it and could by no stretch of imagination be discarded as perverse. In these circumstances, contends Mr. Dharap, there was no scope available for interference with the findings of fact, as Section 44 of the Act did not vest any appellate jurisdiction in the Industrial Court.
6. In my view, the contention canvassed by Mr. Dharap, though not raised in the petition in terms, is perfectly justified. Under the scheme of the Act, the Labour Court is the Court competent to try a complaint of unfair labour practice falling within the purview of Item No. 1 of Schedule IV of the Act. The Act does not provide any appeal against the order of the Labour Court. Section 44 of the Act merely gives the power of superintendence over the Labour Courts to the Industrial Court constituted under the Act. By two judgments of this Court, the view has been taken that this power of superintendent is both administrative and judicial. The decisions of this Court, both under the Act as well as under the Bombay Industrial Relations Act, 1946 (which has a parallel provision), have taken the view that the Industrial Court has reyisional jurisdiction under this section. It is trite law that the jurisdiction of a Revisional Court does not extend to interference with findings of fact recorded by the competent Trial Court unless there is perversity in the findings. Mr. Dharap’s reliance, on the judgment of
the learned Single Judge of this Court in Hindustani Prachar Sabha and Ors. v. Dr. (Miss) Rama Seti Gupta and Anr. 1986 (52) F.L.R. 313 and the judgment of a Division Bench of this Court in Vikas Textiles v. Sarva Shramik Sangh 1990 1 C.L.R. 257, is wholly apposite. The said judgments of this Court clearly lay down the proposition of law as contended by Mr. Dharap.
7. Mr. Appa, learned Advocate for the first respondent, strenuously urged that the Industrial Court was acting within its jurisdiction. He contended that the question of jurisdiction had not been raised by the petitioner before the Industrial Court and therefore I must hold that there was acquiescence in jurisdiction and that the petitioner is estopped from raising this question before this Court. He relied on the judgment of the Kerala High Court in The Plantation Corporation of Kerala Limited, Kottayam v. P.N. Krishna Pillai, Arbitrator and Anr. 1974 1 LLJ 116, In this case the employer, who was represented by counsel before the Arbitrator, had not raised the contention that the Arbitrator had no jurisdiction to continue with the arbitration proceedings as the time limit stipulated in the Arbitration agreement had expired. Not only did he not raise the point of jurisdiction, but actively participated in the arbitration proceedings. It is only when the decision of the arbitrator went against him that he challenged the arbitration proceedings before the High Court as without jurisdiction. The Kerala High Court had no difficulty in rejecting the contention by holding that, having participated in the proceedings without raising the issue as to want of lack of jurisdiction, the employer was estopped from doing so before the High Court. In my view, this judgment has no relevance. Here the question is not one of jurisdiction being conferred by consent of parties. The issue is whether the Industrial “Court, under the statutory provision, had a certain jurisdiction. Though it has not been shown to me from the record by Mr. Appa that the petitioner had acquiesced in acquiescence, there is no substance in the proposition that the Industrial Court had jurisdiction to exercise appellate powers, even if such was the conduct of the petitioner, the Industrial Court would not become clothed with appellate powers by consent or conduct of the parties. The Industrial Court, being a creature of statute, can exercise only such jurisdiction as is specifically vested in it by the statute. So far as Section 44 of the Act is concerned, the parameters of the jurisdiction thereunder have already been delineated by the judgments of this Court supra. In these circumstances, the contention of Mr. Appa does not impress me and ! reject the same.
8. Mr. Appa then placed reliance on the judgment of the Supreme Court in Remington Rand of India Limited v. R. Jambulingam 1975 1 LLJ 450 in support of this very proposition. In this case an application under Section 33(2)(b) of the Industrial Disputes Act had been filed by the employer before the Tribunal. In the meanwhile, the workman filed an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act before the Additional Commissioner. The Additional Commissioner used his appellate powers under the said Act and set aside the order of dismissal and the petitioner approached the Supreme Court thereagainst. The Supreme Court took the view that the jurisdiction of the Commissioner under the Tamil Nadu Shops and Establishments Act was appellate jurisdiction was of wider scope, unlike that of the Industrial Tribunal in an application under Section 33 of the Industrial Disputes Act. The Supreme Court held that the Commissioner was competent to rehear the matter completely and come to his own conclusion after reappreciation of the evidence and also had jurisdiction to entertain additional evidence if it was necessary in the interests of justice and that the rule of law which has been laid down by the Supreme Court with regard to the limited jurisdiction of the Industrial Tribunal in an application under Section 33, so far as interference with the order of dismissal was concerned, was not applicable to the Commissioner exercising powers under Section 41 of the Tamil Nadu Shops and Establishments Act. In these circumstances, the Supreme Court rejected
the argument of the employer that the Commissioner had no jurisdiction to interfere with the dismissal order by holding that the employer having subjected himself to the jurisdiction of the Commissioner’s appellate powers, it was not open to him to raise the issue of jurisdiction before the Supreme Court. Having carefully applied my mind to this judgment, I see nothing whatsoever in this judgment, which supports the proposition canvassed by Mr. Appa. In the instant case, there is nothing on record to show that the employer had, by his conduct, active or passive, led the Industrial Court into believing that it had appellate powers. Even if it had done so, the Industrial Court could derive no powers under Section 44 of the Act to reappreciate the evidence and record findings of fact inconsistent with those recorded by the Trial Court.
9. Mr. Appa then contended that the order of dismissal was wrong and invited me to go into the evidence and reappreciate the evidence for myself to see whether the finding of guilt recorded by the Labour Court was justified. I am unwilling to do so and I refuse to accede to this contention of Mr. Appa. The Labour Court is the Trial Court or competent jurisdiction and once it has recorded its findings of fact by appreciation of evidence before it, there is no reason why the High Court should interfere with the same under Article 227 of the Constitution of India. I have, with the assistance of the Advocates, perused the findings recorded by the Labour Court and find nothing wrong with them I also find no perversity in them. In these circumstances, I decline to exercise the powers of this Court under Article 227 of the Constitution of India to disturb the findings of Act recorded by the Labour Court.
10. The second facet of Mr. Appa’s argument is that the Industrial Court would be justified in exercising appellate powers in order to advance ‘social justice’. In my view, while ‘social justice’ is an eminently desirable goal, it is neither the nostrum of all unsuccessful litigants, nor a magic incantation which would open wide
the doors of the Courts, however, limited their statutory jurisdiction be. This contention also fails to appeal and I reject the same.
11. Mr. Appa then tried to impress me with the contention that in any event even if it were to be held that the first respondent was guilty of the misconduct as the Trial Court has held, the Trial Court, at any rate, ought to have recorded a finding of an unfair labour practice falling within Item No. 1(g) of Schedule IV of the Act. He urges that the misconduct proved against the first respondent was of a minor or technical character and therefore the dismissal for such misconduct would clearly fall within Item No. 1(g) of Schedule IV of the Act. I entirely, disagree. In my view, the misconduct is neither minor, nor technical in character. The misconduct, it cannot be forgotten was one of fabricating bogus documents and claiming money thereupon. I cannot agree that such conduct can be viewed either as a minor misconduct or as one of technical character. The charge levelled against the first respondent was one of dishonesty in connection with the employer’s business, which misconduct was neither technical nor minor. This charge has been held to be proved on the basis, of evidence recorded by the Trial Court itself. I am unable, therefore, to accept the contention of Mr. Appa which fails.
12. Mr. Appa then raised, what I feel is an argument of desperation. He pointed out that the Labour Court had not recorded a finding that the first respondent had caused any wrongful loss to the petitioner or that he had made any wrongful gain for himself. The only merit of this argument is that it is an argument of desperation. The conclusions recorded by the Labour Court indubitably show that the first respondent had fabricated the documents and collected the money himself. If that was not causing wrongful loss to the employer, or at any rate, wrongful gain to the employee himself, one fails to see what else it could be. I am unable to accept this contention and I reject the same.
13. In the result, the petition deserves to be, and is hereby allowed. The order of the Industrial Court, dated 28th February, 1983, in Revision Application (ULP) No. 59 of 1982, is hereby quashed and set aside and the order of the Labour Court, dated 30th October, 1981, in Complaint (ULP) No. 39 of 1980, is restored.
14. Rule is accordingly made absolute with no order as to costs.