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VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL No. 409 OF 2007
IN
WRIT PETITION No. 3108 OF 2002
WITH
APPEAL No. 410 OF 2007
IN
WRIT PETITION No. 1132 OF 2003
Masina Hospital.
ig )
a hospital registered under the )
Bombay Public Trust Act, 1950 )
having its office at Sant Savta Marg, )
Mumbai - 400 027. ) .. Appellant
Vs.
1. Mrs. Sunanda Hari Kadam, )
2. Ganesh Hari Kadam )
[ the legal heirs of Hari G. )
Kadam, a deceased workman )
of Appellant ] )
Both having their address at - )
C/o. Kamgar Utkarsha Sabha, )
Rama Gulab Doshi Niwas, )
Parleshwar Road, Vile-Parle )
(East), Mumbai - 400 057 ) ..Respondents
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***
Mr. Shamrao S. Patil with Avinash Patil, for the Appellant.
Mr. K. S. Bapat i/b Avinash Fatangare, for the Respondents
***
CORAM : D. K DESHMUKH
AND
Smt. R. P. SONDURBALDOTA , JJ
DATED : JULY 1, 2010.
ORAL JUDGMENT [ PER : D. K. DESHMUKH, J.] :
1.
By these appeals, the appellant-Management challenges the
common order dated 4th May, 2006 passed by the learned Single Judge
of this Court in Writ Petition Nos. 3108 of 2002 and 1132 of 2003.
2. The relevant facts are-
. One Hari Ganpat Kadam was an employee of the appellant
Management/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
appellant charge-sheeted the petitioner for charge of assaulting co-
workers. He was suspended from service. After replies were filed, an
inquiry was conducted and ultimately he was dismissed from service on
10-10-1987. After his dismissal, said worker filed a complaint bearing
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Complaint (ULP) No. 283 of 1987 before the Labour Court under
Item 1, Schedule IV of the MURTU & PULP Act. In part I award, a
finding was recorded by the Labour Court that the inquiry 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 was
preferred by the Appellant/Management being Revision Application
(ULP) No. 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 2000 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 the appellant/Management to lead evidence and
prove charge before the Labour Court.
4. Thereafter the Management examined various witnesses in
support of its case before the Labour Court. After examining the said
witnesses and after hearing the parties, the Labour Court passed an order
and judgment dated 3rd March, 2001, holding that misconduct is not
proved against the workman and directed that the said workman should
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be reinstated with continuity of service and full back-wages. The Labour
Court recorded a finding that the charge of assault is not proved by the
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 for 24
hours, he did not take any medical treatment there for the injuries, but he
went to the private doctor Shri Gaikwad; and 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 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
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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 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 analyzed 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 said order, Management filed
revision being Revision Application (ULP) No. 43 of 2001 before the
Industrial Court. The Industrial Court has come to the conclusion that
the misconduct of assault on the co-employee by the said workman has
been proved and revision is partly allowed by setting aside the order of
reinstatement. Further it is held that the punishment of dismissal is
disproportionate however, since the said worker had expired during
pendency of the revision, the Industrial Court directed the Management
to pay wages at the rate of 50% and other legal dues and service
emoluments to the legal heirs of the deceased worker.
6. The order of the Industrial Court was challenged by both
the parties by filing two writ petitions, which have been referred to
above. Those writ petitions, by a common order dated 4th May, 2006
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were disposed of by the learned Single Judge. The learned Single Judge
held that the Labour Court having appreciated the entire evidence on
record in detail, the revisional Court is not justified in re-appreciating
the evidence and modifying the order passed by the Labour Court. The
learned Single Judge, therefore, held that order of the Industrial Court is
liable to be set aside, and order of the Labour Court was modified,
granting reinstatement to the worker. As the worker has meantime
expired, the learned Single Judge while modifying the order of the
Labour Court directed the Management to treat the deceased workman
in service upto the date of his death or date of superannuation,
whichever is earlier and pay his dues accordingly with full back-wages.
7. We have heard the learned counsel for the parties in detail.
The charge was framed against the delinquent workman on the basis of
complaint made by the employees by name Jagdish and Mukesh. The
complaint was dated 17th June, 1987. Narration in the complaint against
the delinquent was that he caught hold of the collar of the complainant-
Jagdish and that another person accompanying the delinquent, Krishna
Shinde slapped him. This was the charge. But said Jagdish in his
evidence deposed exactly contrary to the said narration. He did not
depose that the delinquent caught hold of his collar; instead he deposed
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that Krishna Shinde caught hold his collar and the delinquent employee
slapped him. Thus, the complainant-Jagdish himself did not support his
complaint and thus, charge was held not proved. The learned Single
Judge rightly held that the Industrial Court in exercise of its revisional
jurisdiction should not have re-appreciated the evidence, oral and
documentary, which was already appreciated by the Labour Court,
without first recording the finding that the Labour Court has excluded
from its consideration any piece of evidence in the appreciation of
evidence; it was a clear case of exceeding jurisdiction by the Industrial
Court. In our opinion, the learned Single Judge was perfectly justified in
not accepting the approach adopted by the revisional Court in re-
appreciating the evidence. It was argued on behalf of the appellant that
the learned Single Judge should not have awarded the back-wages to the
worker, from the record we find that there is a clear statement made on
oath by the worker that he was not gainfully employed, and after
termination of his services he went to his native place and he was
helping his brother in cultivation of the land; he was staying in joint
family having 4 acres land. We do not find that there is any material on
record to show – what was the income from the agricultural land and
how much income came to the share of the delinquent worker. In our
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opinion, learned Single Judge is justified in awarding the back-wages, in
any case. In our opinion, now the as the delinquent worker has expired,
whatever back-wages are to be paid to him, will have to be paid to his
legal representatives i. e. his widow and son, who are respondent Nos. 1
and 2 in the appeals. Taking over all view of the matter, no interference
in the impugned order is called for. In the result, both the appeals are
dismissed.
8. In view of disposal of both the appeals, personal bond
which has been given for withdrawal of the amount, which was
deposited, pursuant to the interim order of this Court, stands discharged.
The balance amount which was invested, pursuant to said interim order,
payable to the respondents, be paid to them together with accruals, if
any.
Sd/- Sd/-
[Smt. R. P. SONDURBALDOTA , J.] [D. K DESHMUKH , J.]
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