1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6419 OF 2008
Kolhapur Zilla Sahakari Dudha Utpadak
Sangh, Kolhapur ..Petitioner.
Vs.
Shivaji Shankar Pharakate & another ..Respondents.
....
Mr. S.S. Pakale for the Petitioner.
Mr. Abhay Nevagi with Mr. Rajesh Mirchandani and Mr. Vivek Patil i/b
M/s. Paras Kuhad and Associates for Respondents 1 and 2.
ig ....
CORAM: DR. D.Y. CHANDRACHUD, J.
19th November, 2008.
ORAL JUDGMENT :
1. Rule, by consent of the learned counsel made returnable
forthwith. Counsel appearing for the Respondents waives service.
By consent of the learned counsel, the matter is taken up for hearing
and final disposal.
2. The two workmen who are Respondents to these
proceedings were employed by the Petitioner as temporaries. The
Petitioner is a Federation of Milk Supply Societies in the District of
::: Downloaded on – 09/06/2013 14:04:27 :::
2
Kolhapur and is registered under the Maharashtra Co-operative
Societies Act, 1960. The Petitioner is engaged in the collection of
milk from village societies and in the processing and distribution
thereof. The Petitioner employs about 1891 employees and has a
processing plant at Borawade (Bidri). A charge- sheet was issued to
the two workmen on 8th August, 1989 in respect of an incident which
took place on 1st April, 1989. It was alleged in the charge-sheet that
the First Respondent had taken leave of absence on 1st April, 1989
due to personal reasons on the ground of a marriage in the family.
However, on 1st April, 1989 the workman stayed for the night in the
precincts of a hotel. At about 1.30 a.m. an officer by the name of Mr.
R.D. Patil came to the hotel and took the workman with him, informing
him that a tanker had to be filled. The workman accompanied the
said officer to the chilling plant in the tanker. The tanker came to be
filled unauthorizedly with milk of a total volume of nearly 10,000 liters
together with the assistance of the First and Second Respondents. A
trap was laid by the management on a suspicion that milk belonging
to the Petitioner was being unauthorizedly secreted away. The tanker
was apprehended. It is accordingly alleged that though the First
::: Downloaded on – 09/06/2013 14:04:27 :::
3
Respondent was not on duty on 1st April, 1989, he had during the
hours of the night proceeded to the chilling center in a private tanker
and had aided in facilitating the theft of milk from the precincts of the
Petitioner by unauthorizedly filling up a private tanker to the extent of
10,000 liters. The Second Respondent was also charged with having
committed misconduct.
3.
A disciplinary enquiry was initiated on the aforesaid charge
of misconduct involving theft of the property of the employer. An
Enquiry Officer was appointed and both the workmen who were
charge- sheeted were permitted to be represented by an advocate.
On 11th June, 1990 the evidence of the Managing Director of the
Petitioner was recorded. On 27th February, 1991 during the pendency
of the disciplinary proceedings a letter was addressed by the
Respondent workmen accepting the charge of misconduct and
requesting the management, in view of their financial position, to allow
them to resume duty. The record of the proceedings of the Enquiry
Officer shows that the workmen were asked as to whether they had in
fact addressed such a letter to which the answer was in the
::: Downloaded on – 09/06/2013 14:04:27 :::
4
affirmative. The workmen were asked as to whether the charges
were acceptable to which the answer was again in the affirmative.
The workmen stated upon enquiry that the letter had been addressed
by them voluntarily and without any coercion. The workmen stated
that in terms of the request a lenient view may be taken of the matter
and they may be allowed to resume duty. Insofar as the First
Respondent is concerned, he had stated in his letter that he accepted
the charge contained in the letter dated 1st April, 1989. The First
Respondent stated that at the behest of Mr. R.D. Patil who was in
charge of the chilling plant, he had proceeded to fill the tanker when
he was apprehended by the Managing Director of the Petitioner
together with certain other members of the management. The First
Respondent stated that he had carried out the aforesaid course of
conduct at the behest of his superior and that he should be excused
for the lapse. The First Respondent stated that he had no intention to
defraud the Petitioner.
4. The Enquiry Officer submitted his report. It has not been
disputed that both the workmen had on 27th February, 1991 submitted
::: Downloaded on – 09/06/2013 14:04:27 :::
5
similar applications accepting their guilt. The record of the enquiry
also shows that on the aforesaid date of hearing, the advocate
appearing on behalf of the workmen was present. Following the
report of the Enquiry Officer, the workmen were dismissed from
service.
5. Complaints of unfair labour practices were instituted by the
workmen before the Labour Court at Kolhapur under Item 1 of
Schedule IV of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971. The complaints
were dismissed by the Labour Court on 7th June, 2005. The Labour
Court relied upon the application submitted by the two workmen which
according to the Court amounted to a confession of guilt. The Labour
Court observed that from the proceedings dated 27th February, 1991
it emerged that the advocate appearing on behalf of the workmen was
present and that the Enquiry Officer had enquired as to whether the
statements contained therein were made voluntarily and without any
coercion. Before the Labour Court it was submitted that the
complainant workmen had obeyed the orders of the superior. While
::: Downloaded on – 09/06/2013 14:04:27 :::
6
rejecting this submission the Labour Court observed that one of the
complainant workmen was at the time of the incident not on duty, but
had slept in a hotel near the plant at Bidri from where he was
summoned at 1.30 a.m. by Mr. R.D. Patil. The workmen had
engaged in the filling up of the tanker until it was apprehended by the
raiding party. The Labour Court held that the punishment of dismissal
was not disproportionate. The complaint was accordingly dismissed.
6.
The workmen carried the matter in revision. The Industrial
Court held that it being the grievance of the workmen that the enquiry
had not been held properly, the Labour Court ought to have framed
an issue in respect of the fairness of the enquiry. The Industrial Court
held that the workmen were not given an opportunity to lead their
evidence in defence in the domestic enquiry because the Enquiry
Officer took into consideration the confessional statements following
which the enquiry was concluded. The Industrial Court was also of
the view that a specific issue in regard to the perversity of the findings
ought to have been framed so that in the event that the enquiry was
set aside and the findings were held to be perverse, the management
::: Downloaded on – 09/06/2013 14:04:27 :::
7
would have an opportunity to justify its action before the Court. Having
found fault with the Labour Court for not having framed an issue in
regard to the fairness of the enquiry and the perversity of the findings,
the Industrial Court proceeded to consider the question as to whether
the penalty of dismissal was warranted assuming that the enquiry was
fair and the findings were correct. The Industrial Court held that in the
evidence of the management’s witness it had come on the record that
the workmen had only helped the incharge by following his
instructions and there being no charge of collusion and since the
workmen were temporary workers, the ends of justice would be
warranted if an order of reinstatement is passed without backwages.
The Industrial Court purported to rely upon an admission of the
management’s witness that the workmen had not benefited from the
said incident. An order of reinstatement without backwages was
passed.
7. In the present case, it has been submitted on behalf of the
Petitioner that the Industrial Court in revision has transgressed the
limits on its jurisdiction by reassessing the evidence and substituting
::: Downloaded on – 09/06/2013 14:04:27 :::
8
its own conclusions for those of the Labour Court. The learned
counsel submitted that in the event that the Industrial Court came to
the conclusion that proper issues were not framed, it was only
appropriate and proper that the proceedings should be remanded
back to the Labour Court for framing issues specifically in regard to
the fairness of the enquiry and the perversity of the findings.
Secondly, it was submitted that both the workmen had unconditionally
admitted their guilt.
The incident was not disputed and the only
defence of the workmen was that they had acted at the behest of the
incharge or their superior. The superior officer, the Court is informed
by Counsel for the workmen, died after the incident in a car accident.
The Enquiry Officer had duly satisfied himself about the voluntary
nature of the statements which were recorded in the presence of the
advocate who was appearing on behalf of the complainant workmen
in the enquiry. In these circumstances, it was submitted that there
was no valid justification for the Industrial Court to interfere with the
order of the Labour Court in a case where the workmen were involved
in a serious case of theft involving 10,000 liters of milk belonging to
the Petitioner.
::: Downloaded on – 09/06/2013 14:04:27 :::
9
8. On the other hand on behalf of the Respondent workmen it
was submitted that having regard to the fact that the incident on the
basis of which disciplinary proceedings were initiated dates back to
April 1989 and since evidence had been adduced before the Labour
Court, there is no reason for this Court now to remand the
proceedings back to the Labour Court for the framing of issues. The
learned counsel submitted that it would be in the interest of justice if
the matter is finally decided by this Court so as to obviate another
round of litigation. On behalf of the Respondents it was urged that
properly construed, the statement of the two Respondents amounted
to a conditional plea which was not acceptable as a valid piece of
confession in law. Secondly, it was urged that the charge-sheet itself
would not make out an allegation of theft. Thirdly, it was submitted
that the admissions elicited during the cross examination of the
management’s witness would show that the workmen had not
benefited from the incident. The workmen, it was submitted, had
acted on the orders of the superior and consequently, the Industrial
Court was justified in ordering reinstatement though without
::: Downloaded on – 09/06/2013 14:04:27 :::
10
backwages.
9. The record of the enquiry discloses that the workmen were
permitted to be defended by an advocate. After the enquiry had
commenced upon the issuance of a charge- sheet, the evidence of
the management’s witness, the Managing Director of the Petitioner,
was recorded on 11th June, 1990. On 27th February, 1991
proceedings took place in the course of the enquiry. The Enquiry
Officer noted that the workmen had submitted a representation
accepting the allegation of misconduct contained in the charge –
sheet dated 8th August, 1989. The Enquiry Officer posed several
questions to the workmen to verify as to whether the representations
were addressed by the workmen; whether they were voluntary or
otherwise and whether the allegations of misconduct were accepted
to the workmen. To this the answer was in the affirmative. In the
letter addressed by the First Respondent to the enquiry officer, the
incident which took place on 1st April, 1989 was not denied. There
was an acceptance of the fact that the workmen were apprehended
when they had filled a privately owned tanker on the night of the date
::: Downloaded on – 09/06/2013 14:04:27 :::
11
of the incident but it was stated that this was all done at the behest of
a superior. The workmen prayed that they may be reinstated in
service.
10. Now there can be no dispute about the fundamental
principle of law that an admission of misconduct, in order to be
acceptable as a ground for holding that the charge is proved, must not
be qualified or
conditional. The record of the enquiry dated 27th
February, 1991 would in fact reveal that the incident which took place
on 1st April, 1989 was not disputed. The presence of the workmen at
1.30 a.m. on 1st April, 1989, the presence of a private tanker which
was brought into the premises of the chilling plant and the role of the
workmen in actually assisting and facilitating the filling up of 10,000
liters of milk in the tanker is not in dispute. It must be noted that it
was not the defence of the workmen that the incident did not take
place or that they were falsely implicated. The defence of the
workmen at all material times was that they had acted thus in
compliance with the direction of the superior. In these circumstances,
the Enquiry Officer made due enquiries with the workmen on whether
::: Downloaded on – 09/06/2013 14:04:27 :::
12
the statement was voluntarily furnished and it was only upon his
satisfaction that this was so that the enquiry was closed. The Labour
Court noted that in the enquiry proceedings both the complainant
workmen as well as their advocate put down their signatures. Once
this was the case, the Labour Court was justified in coming to the
conclusion that the charge of misconduct stood proved. The Labour
Court also took note of the fact that the workmen were acquitted in a
criminal case by the J. M. F. C. The approach of the Labour Court is
consistent with the law inasmuch as the Labour Court observed that
the burden of proof in a criminal case is of a different nature from a
disciplinary proceeding. Moreover, from the judgment of the J. M. F.
C. which was placed on the record of the Labour Court it was noted
that the workmen were acquitted because in spite of the summons
that were issued to the witnesses on several occasions, the police
had failed to bring the witnesses before the Court.
11. In this background there is merit in the submission which
has been urged on behalf of the Petitioner that the approach of the
Industrial Court is inexplicable with reference to any cogent rationale
or logic. If the Industrial Court was of the view that a specific issue
::: Downloaded on – 09/06/2013 14:04:27 :::
13
ought to have been framed on the fairness of the enquiry and on the
perversity of the findings, the only appropriate and proper course of
action would have been to remit the proceedings back to the Labour
Court for a fresh decision after framing issues. Instead the Industrial
Court proceeded to determine as to whether the punishment was
disproportionate even on the assumption that the enquiry was fair and
the findings were not perverse. During the course of these
proceedings, this Court had enquired with the learned counsel
appearing for the parties as to whether parties would be desirous of
pressing for the remand of the proceedings back to the Labour Court.
Counsel appearing for the Respondent workmen submitted that in
view of the long pendency of the matter and particularly since
evidence was adduced before the Labour Court, it would not be in the
interests of justice to remand the proceedings. Learned Counsel for
the workmen opposed a remand. The submissions have therefore
been heard on merits by consent. The reasons which weighed with
the Industrial Court in granting reinstatement suffer from a manifest
perversity of approach. The Industrial Court was of the view that the
workmen had obeyed a superior officer by following his instructions.
::: Downloaded on – 09/06/2013 14:04:27 :::
14
As already noted earlier, the Court was informed that the superior
officer who was alleged to be involved died in the course of an
accident. The fact that the workmen were induced to resort to an
unlawful course of action at the behest of a superior officer does not
dilute or detract from their own involvement in facilitating the theft of
property belonging to the employer. The First Respondent was not on
duty on the night of the incident. Yet, he came into the premises of the
chilling plant to fill up a tanker with 10,000 liters of milk. The time of
the incident, the surreptitious nature of the conduct, and the attendant
circumstances show that the workmen could not feign ignorance
about the illegal nature of the activity in which they were involved. In
any event, the workmen were temporaries and if the employer has
lost confidence in their ability to discharge their duties with honesty,
the decision to terminate after disciplinary proceedings cannot be
faulted.
12. The Industrial Court laid a great deal of emphasis on
certain admissions which were made during the course of the cross
examination of the management’s witness. A perusal of those
admissions will, however, demonstrate that they would have no
::: Downloaded on – 09/06/2013 14:04:27 :::
15
bearing on the question of guilt or on the quantum of punishment.
The management’s witness stated that the complainant workmen
were not in charge of the plant; that they had not benefited from the
incident and what he meant by stating that they were involved in
collusion was that they had filled up the tanker upon being asked to
do so by the superior. The fact that there was no positive evidence
that the workmen had in fact benefited from the incident is no ground
to hold that they were not guilty of misconduct. Whether or not a
benefit had been or was to be passed on to the workmen is a matter
on which on which direct evidence is not always available. In such
cases involving disciplinary proceedings the question which the Court
must pose is as to whether the findings of misconduct are sustainable
on some legally acceptable evidence on record. The Industrial Court
has virtually reappreciated the evidence in the course of the exercise
of its revisional jurisdiction. In doing so it has transgressed the
jurisdiction which must govern the exercise of revisional jurisdiction.
The approach of the Industrial Court suffers from a manifest illegality.
A miscarriage of justice is liable to ensue unless the order of the
Industrial Court is interfered with by this Court under Article 226 of the
::: Downloaded on – 09/06/2013 14:04:27 :::
16
Constitution. The Labour Court was correct in its approach and its
findings. The admission of guilt by the workmen was categoric and
unambiguous. Upon such an admission the punishment of dismissal
could not be regarded as disproportionate. Theft involving the
property of the employer is a serious charge which would warrant the
punishment of dismissal from service. The conclusion of the Labour
Court was correct and the Industrial Court erred in exercising the
revisional jurisdiction.
12A. Labour and Industrial Courts, when they deal with
challenges to findings in disciplinary enquiries, must reflect a robust
awareness of the realities of the economic situation. Serious cases of
misconduct – such as those involving theft of the property of the
employer- have to be dealt with seriously. Businesses cannot survive if
those who are under an obligation to enhance productivity corrode the
establishment by acts of dishonesty. Once a serious act of misconduct is
proved, in a fair enquiry, the approach of the Labour Courts should not be
to embark upon a search to find just any technical lapse or lacunae to
vitiate the enquiry. There has to be something more fundamental,
such as a breach of the principles of natural justice, some manifest
::: Downloaded on – 09/06/2013 14:04:27 :::
17
perversity or something that shocks the conscience, for the Court to
interfere. A wide degree of autonomy must be allowed for the
disciplinary jurisdiction, so long as the basic principles of
jurisprudence in labour cases are observed. Within that area of
::: Downloaded on – 09/06/2013 14:04:27 :::
18
autonomy and conscious as they should be of that autonomy, Courts
must tread with caution. A disciplined and efficient enterprise is a
sine qua non for the survival of industry. Courts must, in their
approach, not be regarded as condoning breaches of discipline. As
India evolves into a modern Industrial state, the interpretative
jurisdiction of the Court must facilitate efficiency, productivity and
discipline. Courts will guard against victimization by employers.
However, recourse to Courts should not be taken lightly as a means
of condoning wanton acts of indiscipline. That would neither be in the
interest of the workers or of society. This vision must not be lost to
industrial adjudication. Industry survives on discipline and ought not
to perish on indiscipline and, least of all, indiscipline that is condoned
by the Court. Preservation of the rule of law includes preservation of
the rules by which business is transacted. In a rapidly evolving
economy, stability of business contributes to conditions of social
stability. Rules of discipline are a critical ingredient of the rule of law.
Courts as institutions involved in democratic governance must
enforce those rules rather than condone their breach.
Judicial
::: Downloaded on – 09/06/2013 14:04:27 :::
19
legitimacy is founded on the ability of Courts to respond to societal
concerns. Maintaining integrity and honesty must rank as one of the
foremost concerns in today’s troubled times. Equity in the hands of
a judge is not an unguided instrument. Equity, despite all its breadth,
is carefully structured to dispense justice according to law and to deal
with injustice in accordance with law.
13.
In these circumstances, the Petition will have to be allowed
and is accordingly allowed. The judgment of the Industrial Court
dated 20th June, 2008 is set aside. The complaint of unfair labour
practices shall stand dismissed. In the circumstances of the case,
there shall be no order as to costs.
*****
::: Downloaded on – 09/06/2013 14:04:27 :::