High Court
Legal Reasoning
1 wp 4096.2002IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD248 WRIT PETITION NO. 4096 OF 2002.Gangadhar Pandharinath Torkadi,Age: 39 years, Occu.: Service,R/o. Dhandarphal Bk.,Tal.: Sangamner, Dist.: Ahmednagar.. PetitionerVersus1.Maharashtra State Road TransportCorporation, Kothala Maidan Road,Ahmednagar2.The Depot Manager, M.S.R.T.C. Akola Depot,Akole, Dist. Ahmednagar.. Respondents...Advocate for the Petitioner : Mr. V. N. UpadhyeAdvocate for Respondents No.1&2 : Smt. R. D. Reddy...CORAM:ARUN R. PEDNEKER, J.DATE:29th FEBRUARY, 2024ORAL JUDGMENT:1.Heard.2.In the present writ petition, the petitioner is challening theorder passed by the Industrial Court in Revision (ULP) No.34 of 1999filed by the respondent against the order of the labour court directingreinstatement of the petitioner with full back-wages. The Revision (ULP)No.34 of 1999 is filed under section 44 of the Maharashtra Recognition ofTrade Union and Prevention of Unfair Labour Practices Act, 1971 and the 2 wp 4096.2002revisional court has partly allowed the revision and imposed apunishment of forever stoppage of 2 increments of the petitioner /employee.BRIEF FACTS OF THE CASE3.The petitioner was an employee working as a permanentbus-conductor and posted at Akola depot. During his course ofemployment, It is alleged that the petitioner remained absent from dutyfrom June 1992 to November 1992, on intervening days for 64 days. Assuch, the charge-sheet was issued dated 24.11.1992 and a domesticinquiry was conducted and the charges being proved he was dismissedfrom service with effect from 22.12.1993.4.The employee challenged the order of dismissal before thelabour court in Comp. (ULP) No. - 26 of 1994. On consideration of thematerial before the labour court, the labour court set aside the inquiryholding it to be unfair. Evidence of misconduct was thus lead before thelabour court. The labour court on appreciation of evidence held that thecharges are not proved and it has set aside the dismissal order and directreinstatement of the petitioner employee with full back-wages. 5.The said order of the labour court is challenged by therespondent by filing Revision (ULP) No.34 of 1999 under section 44 of 3 wp 4096.2002the MRTU & PULP Act. On consideration of the material, the industrialcourt held that on admitted facts the present petitioner employee wasabsent for 64 days, as such, it held that the employee guilty of charges ofabsenteeism. However, while partially allowing the revision petition, theindustrial court maintained the petitioner’s reinstatement with continuityof service from 27.12.1993 and awarded substituted punishment offorever stoppage of 2 increments from 17.12.1993. Against the saidimpugned order dated 08.03.2002, passed in Revision (ULP) No.34 of1999, the petitioner / employee filed the present writ petition.6.It is primary contention of the petitioner that a reasonedorder is passed by the labour court and the labour court has elaboratelydiscussed the evidence as regards absenteeism; it has held that themisconduct as is proved by the respondent after the inquiry was vitiatedsince the inquiry was not fair. In the evidence led before the labour courtthe witnesses, examined on behalf of the Corporation has just given thereport of absenteeism but there is no evidence brought on recordregarding the absenteeism without permission. No leave-register isproduced. There is no record to show what procedure is followed inrejecting the leave application by the corporation.
Legal Reasoning
4 wp 4096.20027.The Labour Court also held that admittedly the absenteeismfor 64 days is admitted by the complainant but there is a specific standtaken by the petitioner that the petitioner was rather disturbed due tofamily problems and, therefore, the petitioner was constrained to proceedon leave and that leave application was submitted by the petitioner andbefore the labour court no record was produced to show whether anyleave was sanctioned or leave was to the credit of the petitioner or not. 8.The labour court has also observed that there has been anearlier order of the industrial court of unfair labour practice, as such, thepetitioner / complainant was reinstated for just 2 to 3 days and,thereafter, dismissed from service and the court further held that thedismissal in said situation amounted to unfair labour practices. 9.However, in the Revision Petition, the industrial court hasrelied solely on the admission given by the petitioner / employee andreversed the finding of fact without taking into consideration the otherfacts taken by the labour court in rendering the finding of absenteeism.10.Mr. V. N. Upadhye, learned counsel for the petitioner /employee further submits that unless the finding of the labour court isperverse in exercise of the revisional jurisdiction the industrial court doesnot have the power to re-assess the evidence and render an alternate 5 wp 4096.2002finding of fact and it has been consistently held by this court that thepowers of the revisional authority is limited and it is not available to re-assess the findings. 11.Per contra, Smt. R. D. Reddy, learned counsel for therespondents / Maharashtra State Road Transport Corporation / employersubmits that there are admitted facts that the complainant / employeewas absent for 64 days between 12.06.1992 to 19.11.1992. Since, it is anadmitted fact that there was no need to establish the absenteeism of theemployee and the industrial court has only granted punishment offorever stoppage of 2 increments from 27.12.1993, as punishment to therespondent / employee. The learned counsel submits that in the admittedfact situation the punishment is appropriate and should not be interferedby this court.12.Smt. R. D. Reddy, learned counsel for the respondents /employer submits that the industrial court has held that it is just andproper to substitute the punishment of stoppage of 2 increments forever.13.Smt. R. D. Reddy, learned counsel for the respondents hasrelied upon the judgment of the Maharashtra State Road TransportCorporation Vs. Kantrao, Gyanbarao Dabhale, LAWS (BOM) 2000 6 39,so also, Divisional Controller, Maharashtra State Road Transport 6 wp 4096.2002Corporation, Nagpur Vs. Member, Industrial Court, Nagpur, LAWS (BOM)2004 10 176. The learned counsel for the respondents relying upon thejudgment of the Maharashtra State Road Transport Corporation Vs.Kantrao, Gyanbarao Dabhale (supra), at para 9, submits that there couldbe modification of the order of the labour court by the industrial court. Itis permissible for the industrial court to substitute the appropriatepunishment in the fact situation. The learned counsel for therespondents relying upon the judgment of the Divisional Controller,Maharashtra State Road Transport Corporation, Nagpur Vs. Member,Industrial Court, Nagpur (supra), at para 5, submits that the industrialcourt can rely upon admission to pass appropriate orders.14.The relevant provisions of Section 44 of the IndustrialRecognition of Trade Unions and Prevention of Unfair Labour PracticesAct, 1971 reads as under:-“44.Induatrial Court to exercise superintendence overLabour Courts:- The Industrial Court shall havesuperintendence over all Labour Courts and may,-(a)call for returns;(b)make and issue general rules and prescribe forms forregulating the practice and procedure of such Courts inmatters not expressly provided for by this Act, and inparticular, for securing the expeditious disposal of cases;(c)prescribe forms in which books, entries and accountsshall be kept by officers of any such Courts; and(d)settle a table of fees payable for process issued by aLabour Court or the Industrial Court.” 7 wp 4096.200215.The scope of section 44 is discussed in the case of TheMaharashtra State Road Transport Corporation Vs. Kantrao, GyanbaraoDabhale, LAWS (BOM) 2000 6 39, at para 6, as under:-“6.It is surprising that in its exercise of supervisoryjurisdiction under Section 44 of the M.R.T.U. and P.U.L.P. Act,1971 the learned Member of the Industrial Court hasinterfered with the reasoned order of the Labour Court afterreappraising and appreciating the whole evidence andmaterial before the Labour Court. The learned Member ofthe Industrial Court has come to an entirely different findingwhich is not permissible under the narrow supervisoryjurisdiction conferred on it under Section 44 of the Act. Thisposition is very well established by the catena of decisions onthis point:“Mahila Griha Udyog (Lijat Papad), 1983 I LLN 643Hindustani Prachar Sabha and Ors. v. Dr. (Ms.) RomaSen Gupta and Anr., 1994-III-LLJ (Suppl)-34 (Bom)Vikas Textiles v. Sarva Shramik Sangh, 1991-II-LLJ-451(Bom-DB) Vithal Gatlu Marathe v. Maharashtra StateRoad Transport Corporation and Ors., 1996-I-LLJ-494(Bom-DB)”In the case of Marathe (supra) the Division Bench hasgiven the essence of the law on the point and,therefore, I cannot resist my temptation to reproducethe whole judgment itself here 1996-I-LLJ-494 at 494,495:“1.Heard learned counsel for the appellant as wellas the learned counsel for the respondents. Perused thejudgments of the Industrial Court and also the LabourCourt. The Industrial Court was moved against thejudgment of the Labour Court under Section 44 of theMaharashtra Recognition of Trade Unions andPrevention of Unfair Labour Practices Act, 1971. Theprovisions of Section 44 are almost in pari materiawith the provisions of Article 227 of the Constitutionof India. This is not so much a revisional jurisdiction,but jurisdiction of superintendence. It has been settledfor about four decades that in exercise of this 8 wp 4096.2002jurisdiction of superintendence and supervision, theCourt cannot go to appreciate or reappreciate thematerials on record. It may be that in a given case orcases, we have, in our anxiety to do justice, have doneso on occasions. But that is a different matter. 2. Afterhearing the strenuous arguments of Mr. Sawant forRespondent Nos.1 and 2, we have not been able topersuade ourselves to agree that in exercise of limitedjurisdiction under Section 44 of the said Act, theIndustrial Court can re-appreciate evidence andoverturn findings of fact however erroneous thosefindings may be. 3. It is apparent from the judgment ofthe Industrial Court that it has overturned thejudgment of the Labour Court on findings of factsbased on reappreciation of evidence. This, we do notthink to be permissible to any Court having suchcircumscribed jurisdiction. We must accordingly holdthat the Industrial Court was wrong in exercising suchjurisdiction and overturning the findings and decisionof the Labour Court. We accordingly set aside theorder of the Industrial court and confirm the decisionof the Labour Court. Accordingly, appeal is allowed,but without any order as to costs. 4. Issuance ofcertified copy of this order is expedited.”16.In the instant case, the labour court has held that therespondent has indulged in the unfair labour practices for the reason thatthe petitioner was reinstated by the order of the industrial court for justtwo to three days and, thereafter, dismissed from service and that thedismissal from the service would amounted to an unfiar labour practice.17.The labour court has also held that the petitioner hasadmitted that he was absent for 64 days and had applied for leave. But,although, the petitioner was absent for 65 days and leave was applied 9 wp 4096.2002nothing is brought on record to show that the leave was not sanctionedor that there was no leave left to the credit of the petitioner. Leave recordwas not produced, so also, the leave register was not produced. It is alsonot known whether any permission was granted for leave. As such, thelabour court proceeded to hold that although the employee was absentfor 64 days, in absence of production of any other record to indicate thatthe absence was unauthorized, the labour court held that the charge ofabsenteeism is not proved and the respondent had indulged in unfairlabour practices.18.The industrial court only took into consideration the fact ofabsence for 64 days but did not consider the fact as regards whetherabsence was unauthorized. There is no material produced by therespondent corporation to show that the absence was unathorized andthat there was no leave left to the credit of the petitioner.19.The finding of the labour court in the circumstances arereasonable and not perverse. As such, the industrial court in exercise ofit’s supervisory jurisdiction cannot re-appreciate the whole evidence andcome to a different finding.20.The submission of the learned counsel for the respondentthat the industrial court can substitute an appropriate punishment are of
Decision
10 wp 4096.2002no relevance as the labour court has rendered a finding that therespondent has not been able to prove the charge of unauthorizedabsenteeism and the respondent has indulged in unfair labour practice.The, interference in the finding of fact by the industrial court in the factsituation was not warranted. As such, the Judgments relied upon by therespondent that the industrial court can alter the punishment is of noassistance.21.In view of the same, the impugned order of the Industrialcourt is quashed and set aside. 22.Rule is accordingly made absolute. 23.The Writ Petition is accordingly allowed and disposed of. [ARUN R. PEDNEKER, J.]marathe