Bombay High Court High Court

Masina Hospital vs Mrs. Sunanda Hari Kadam on 1 July, 2010

Bombay High Court
Masina Hospital vs Mrs. Sunanda Hari Kadam on 1 July, 2010
Bench: D.K. Deshmukh, R.P. Sondurbaldota
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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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