THE CHIEF EXECUTIVE OFFICER JALGAONVERSUSMAYA TUKARAM SONAWANEMr v. vs Gujar

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 4919 OF 2024THE CHIEF EXECUTIVE OFFICER JALGAONVERSUSMAYA TUKARAM SONAWANEMr. V. V. Gujar, Advocate for the petitioner Mr. Parikshit Mantri h/f Mr. P. V. Barde, Advocate for the respondent CORAM: R. M. JOSHI, J.DATE: 30th JULY, 2024PER COURT :-1.This petition takes exception to the judgment and orderdated 12th April, 2024 passed by Industrial Court, Jalgaon in RevisionApplication (ULP) No. 4 of 2024.2.The facts which led to the filing of the petition can benarrated in nut shell as under:(i)The parties are referred to as Zilla Parishad and workman for thesake convenience.(ii)The petitioner is Zilla Parishad. The workman was working as‘Auxiliary Nurse Midwife’ (ANM) since 11/10/1998. It is alleged thatduring the service period she had committed serious irregularities by notdistributing medicines within time, maintaining expiry dated medicines,962.wp4919.24.odt1 of 7 causing assault on the co-employees, disobeying supervisory authorityetc. On 27/07/2010 she was suspended from duties after giving showcause notice. Since her explanation was not found satisfactory she wassubjected to disciplinary action and charge-sheet dated 10/03/2010 wasserved upon her. An inquiry was conducted by Assistant CommissionerInquiry at Divisional Commissioner Office, Nashik. According to thefindings of the Inquiry Officer charges levelled against her were proved.A major punishment was recommended by the Inquiry Officer. On thebasis of the findings of the inquiry final show cause notice was issued tothe workman on 15/01/2013. She submitted explanation which was notfound satisfactory and hence she was dismissed from service by orderdated 31/07/2013.(iii)The workman filed complaint before the Labour Court beingComplaint (ULP) No. 21/2013. The said complaint was allowed by theLabour Court by passing order dated 2nd January, 2014 whereby the staywas granted to the order of dismissal. This order was challenged by theZilla Parishad by filing Revision Application (ULP) No. 3 of 2014. Therevision came to be dismissed by order dated 20/06/2014. Since ZillaParishad was aggrieved by the said decision of in the said Court, WritPetition bearing No. 6419/2014 was filed. This Court by order dated17/06/2015 directed the Labour Court to consider in the event domestic962.wp4919.24.odt2 of 7 inquiry is set aside for any reason the issue of conducting a de novoinquiry shall be considered by the Labour court strictly in accordancewith the judgment of Hon’ble Supreme Court in case of Karnataka StateRoad Transport Corporation Vs. Laxmidevamma and another, 2001(II)CLR 640. Thereafter Labour Court decided Complaint (ULP) No. 21/2013by passing order dated 01/03/2021. While deciding preliminary issues itis concluded that the department inquiry conducted against the workmanis proper and also the findings the inquiry. Being aggrieved by thisjudgment the workman filed revision application before Industrial Courtwherein the judgment of the Labour Court came to be set aside andmatter was remanded back to the Labour court for decision afresh on thepoint of fairness of inquiry and correctness of the findings of the InquiryOfficer. On remand Labour court quashed and set aside order of dismissaldated 31/07/2013 directed reinstatement of the workman in service withback wages. Revision Application (ULP) No. 4/2024 was filed against thesaid judgment of the Labour Court. Since the said revision is rejected bythe Industrial Court by order dated 12/04/2024, this petition.3.Learned counsel for the Zilla Parishad took exception to theimpugned judgment amongst other submissions on the ground that therecould not be reinstatement of the workman as if the inquiry is found tobe not fair and proper, in that case de novo inquiry ought to have been962.wp4919.24.odt3 of 7 directed. Learned counsel for the workman supported the impugnedjudgment contending that the charges are not proved against theworkman and for want of any specific plea being raised by the ZillaParishad for leading evidence to prove the said charges before theLabour Court, it was not open for the said Court to permit examination ofwitnesses to prove charges.4.In the instant case complainant has led her evidence by filingaffidavit of affidavit-in-examination in chief. Her evidence has goneunchallenged for want of cross examination. So also the Zilla Parishadhas failed to lead any evidence in spite of opportunities being granted bythe Labour Court. It is also seen from record that none appeared for theZilla Parishad even to make submissions before Labour Court. Eventhough Labour Court has passed order on 02/11/2023 giving finalopportunity to the Zilla Parishad to make submissions, the same was notavailed.5.Learned Labour Court has observed that by judgment dated04/10/2023 it was held that the dismissal of the workman from service isin utter disregard of principles of natural justice and without renderingany opportunity to the complainant to refute allegation and to justify herstand. It was also held that consequently finding recorded by the InquiryOfficer holding complainant guilty for the misconduct are vitiated being962.wp4919.24.odt4 of 7 perverse. It is observed by the learned Labour Court that Zilla Parishadhas never reserved its rights in the written statement nor sought anypermission even subsequently to prove the misconduct of the workmanbefore the Court by adducing evidence. The Hon’ble Supreme Court incase of Karnataka State Road Transport Corporation (cited supra) hasheld that the employer may be allowed to prove his conduct before thecourt only when the right is reserved to that effect. In absence of anysuch right being reserved or making any request at any stage of theproceeding before the Labour Court to lead evidence to prove hisconduct, the question of Zilla Parishad being permitted to prove hismisconduct of the workman did not arise.6.In the revision application filed before the Industrial Courtagainst the judgment passed by the Labour Court it was sought to becontended on behalf of the Zilla Parishad that the inquiry conductedagainst the workman was after giving her opportunity defend herself andthat there is evidence brought on record during the said inquiryindicating act of commission of misconduct by the workman. It is alsosought to be claimed that the Advocate for Zilla Parishad remainedabsent before the Labour Court and therefore Zilla Parishad was notproperly represented and that party should not suffer due to the fault ofAdvocate.962.wp4919.24.odt5 of 7 7.Learned Industrial Court while entertaining revisionapplication has tested the order passed by the Labour Court withinparameters of powers of the revisional court. The powers of revision arenot akin to the powers of appeal. The revisional Court is expected toascertain as to whether there is error of jurisdiction or error apparent onthe face of record which had led to miscarriage of justice. The learnedIndustrial court has taken into consideration the evidence on record i.e.the inquiry proceedings and the report of the Inquiry Officer and foundthat there is no perversity in the findings recorded by the learned LabourCourt that the evidence which led in the inquiry of the witnesses whowere not subjected to cross-examination cannot be considered as proofof misconduct.8.Thus, it is held by the Industrial court that the findingsrecorded by the Labour Court that the inquiry was conducted in violationof principles of natural justice. It has also taken into account record andproceedings of Complaint (ULP) No. 21/2013 and it is held that there wasno haste shown by the Labour Court in deciding the complaint as anopportunities were given to the Zilla Parishad to defend the saidproceeding.9.Evidence of the workman has gone unchallenged with regardto the gainful employment. The settled law that the workman is required962.wp4919.24.odt6 of 7 to make statement before the Court at first instance that he is notgainfully employed and the onus shifts upon the employer to proveotherwise. Not only that the statement made of the workman madebefore the Labour Court is not contradicted by the Zilla Parishad but noevidence is led in order to show that the workman is gainfully employedin the intervening period.10.Having regard to the afore stated facts, this Court finds noreason or justification for causing interference in exercise of writjurisdiction, in the impugned order passed by the Industrial Courtconfirming the order passed by the Labour Court. Hence, petition standsdismissed. (R. M. JOSHI, J.)ssp962.wp4919.24.odt7 of 7