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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.2373 OF 2023

Jayashree Electron Pvt. Ltd. ....Petitioner

V/S

Prashant Ranu Gaware ....Respondent

WITH

WRIT PETITION NO.2376 OF 2023

Jayashree Electron Pvt. Ltd. ....Petitioner

V/S

Vinod Manohar Machkar ....Respondent

WITH

WRIT PETITION NO.14338 OF 2022

Jayashree Electron Pvt. Ltd. ....Petitioner

V/S

Vishal Vishwanath Tapkir ....Respondent

WITH

WRIT PETITION NO.2377 OF 2023

Jayashree Electron Pvt. Ltd. ....Petitioner

V/S

Manoj Laxmikant Kale ....Respondent

WITH

WRIT PETITION NO.2375 OF 2023

Jayashree Electron Pvt. Ltd. ....Petitioner

V/S

Mahesh Ashok Patil ....Respondent

WITH

Page No. 1 of 26

14 August 2024

MEGHA

SHREEDHAR

PARAB

Digitally

signed by

MEGHA

SHREEDHAR

PARAB

Date:

2024.08.20

17:50:57

+0530 2024:BHC-AS:33329

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WRIT PETITION NO.2374 OF 2023

Jayashree Electron Pvt. Ltd. ....Petitioner

V/S

Ganesh Eknath Yelwande ....Respondent

_________

Mr. Nitin Kulkarni a/w Mr. Avinash Belge for the Petitioner in all Writ

Petitions.

Mr. Prashant P. Kshirsagar a/w Mr. Anirudha M. Sanap i/b M/s. Sarvadnya

Legal Associates for Respondent/s in all WPs.

__________

CORAM: SANDEEP V. MARNE, J.

DATE : 14 AUGUST 2024.

Oral Judgment

1. Rule. Rule is made returnable forthwith. With the consent of the

learned counsel appearing for parties, the Petitions are taken up for final

disposal.

2. The challenge in the present Petitions is to the Part-I Awards dated

15 July 2022 passed by the Labour Court No.3, Pune by which the enquiry

conducted against Respondents is found to be fair, proper and not in violation

of principles of natural justice. The Labour Court has however held that the

findings of the enquiry officer are perverse. The employer has filed these

Petitions to the limited extent of the findings of the Labour Court about

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perversity in the findings of the enquiry officer.

3. Before proceeding further with merits of the Petitions, it is necessary

to first deal with preliminary objection raised by Mr. Kshirsagar, the learned

counsel appearing for Respondents about maintainability of the Petitions.

According to him Part-I Award deciding the issues of fairness in inquiry and

perversity in findings cannot be challenged during pendency of determination

of remaining issues by way of Part-II Award. Relying on the judgment of the

Apex Court in The Cooper Engineering Ltd. vs. P.P. Mundhe

1

he would

submit that the Apex Court has held in paragraph 22 of the judgment as

under:

22. We are, therefore, clearly of opinion that when a case of dismissal or

discharge of an employee is referred for industrial adjudication the labour

court should first decide as a preliminary issue whether the domestic enquiry

has violated the principles of natural justice. When there is no domestic

enquiry or defective enquiry is admitted by the employer, there will be no

difficulty. But when the matter is in controversy between the parties that

question must be decided as a preliminary issue. On that decision being

pronounced it will be for the management to decide whether it will adduce

any evidence before the labour court. If it chooses not to adduce any evidence,

It will not be thereafter permissible in any proceeding to raise the line issue.

We should also make it clear that there will be no justification for any party to

stall the final adjudication of the dispute by the Labour Court by questioning

its decision with regard to the preliminary issue when the matter, if worthy,

can be agitated even after the final award. It will be also legitimate for the

High Court to refuse to intervene at this stage. We are making these

observations in our anxiety that there is no undue delay in industrial

adjudication.

(emphasis and underlining added)

4. Mr. Kshirsagar has also relied upon the judgment of the Apex Court

1. AIR 1975 SC 1900

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in D.P. Maheshwari V/s. Delhi Administration and others,

2

in which it is held

in paragraph 5 as under:

5. Curiously enough, the Learned Single Judge of the High Court affirmed

the finding of the Labour Court that D.P. Maheshwari was not employed

in a supervisory capacity. He said,

"In the face of this material and the admitted hypothesis the conclusion

that the respondent was not mainly employed in a supervisory capacity is

certainly a possible conclusion that may be arrived at by any Tribunal duly

instructed in the law as to the manner in which the status of an employee

may be determined. It is, therefore, not possible for this Court to disturb

such a conclusion having regard to the limited admit of review of the

impugned order."

Having so held, the Learned Single Judge went on to consider whether the

workman was discharging duties of a clerical nature. He found that it

would be difficult to say that D.P. Maheswari was discharging 'routine

duties of a clerical nature which did not involve initiative, imagination,

creativity and a limited power of self direction.' The Learned Single Judge

did not refer to a single item of evidence in support of the conclusions thus

recorded by him. He appeared to differ from the Labour Court on a

question of fact on the basis of a generalisation without reference to specific

evidence. No appellate court is entitled to do that, less so, a court exercising

supervisory jurisdiction. Referring to the finding of the Labour Court that

the workman was discharging mainly clerical duties the Learned Single

Judge observed, "It is erroneous to presume, as was apparently done by the

Additional Labour Court, that merely because the respondent did not

perform substantially supervisory functions, he must belong to the clerical

category." This was an unfair reading of the Labour Court's judgment. We

have earlier extracted the relevant findings of the Labour Court. The

Labour Court not only found that the workman was not performing

supervisory functions but also expressly found that the workman was

discharging duties of a clerical nature. The Division Bench which affirmed

the judgment of the Learned Single Judge also read the judgment of the

Labour Court in a similar unfair fashion and observed." It is no doubt true

that the Labour Court held that the appellant's evidence showed that he

was doing mainly clerical work. As we read the order as a whole it appears

that in arriving at this conclusion the Labour Court was greatly influenced

by the fact that the appellant was not employed in a supervisory capacity."

We have already pointed out that the Labour Court did not infer that the

2. AIR 1984 SC 153

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appellant was discharging duties of a clerical nature from the mere

circumstance that he was not discharging supervisory functions. The

Labour Court considered the entire evidence and recorded a positive

finding that the appellant was discharging duties of a clerical nature. The

finding was distinct from the finding that the appellant was not discharging

supervisory function as claimed by the company. We would further like to

add that the circumstance that the appellant was not discharging

supervisory functions was itself a very strong circumstance from which it

could be legitimately inferred that he was discharging duties of a clerical

nature. If the Labour Court had drawn such an inference it would have

been well justified in doing so. But, as we said, the Labour Court

considered the entire evidence and recorded a positive finding that the

workman was discharging duties of a clerical nature. The Division Bench,

we are sorry to say, did not consider any of the evidence considered by the

Labour Court and yet characterised the conclusion of the Labour Court as

perverse. The only evidence which the Division Bench considered was that

of M.W.I.Shri K.K. Sabharwal and under the impression that the Labour

Court had not considered the evidence of K.K. Sabharwal, the Division

Bench observed,

"The non reference to the said evidence while discussing the point in issue,

would clearly vitiate the order to the Labour Court." This was again

incorrect since we find that the Labour Court did consider the evidence of

M.W.I fully.

5. Mr. Kshirsagar has also relied upon the judgment of Single Judge of

Delhi High Court in Indian Bank & Anr. V/s. Praveen Kumar,

3

in which it is

held in paragraph 19 as under:

19.From the above decisions and in particular, from the decision of the

Supreme Court in Cooper Engineering (supra), one thing is clear that

whenever the Labour Court or the Industrial Tribunal decides the validity of

the domestic enquiry conducted by the management as the preliminary

isuse, the writ petition challenging the said order should not be entertained.

The Supreme Court in Cooper Engineering (supra) observed that there will

not justification for any party to stall the final adjudication of the dispute by

the Labour Court/Tribunal by questioning its decision which is a preliminary

issue and the same can be agitated even after the final award. The Supreme

Court had also observed that it will be legitimate for the High Court to

3. AIR Online 2022 DEL 656

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refuse to intervene at this stage.

6. Relying on the above judgments, Mr. Kshirsagar has contended that

this Court cannot entertain a challenge to the Part-I Award answering

preliminary issues of fairness in enquiry and perversity in findings of the

enquiry officer, when the final Award can always be challenged by the

employer in the event the same again goes against him. He would submit that

entertaining the present Petitions at this stage would result in delay in the

decision of the references pending before the Labour Court.

7. On the other hand, Mr. Kulkarni, the learned counsel appearing for

the Petitioner relies on judgment of Division Bench of this Court in Reliance

Industries Ltd. Raigad vs. S.D. Rane, Raigad,

4

. In which this Court has

considered the issue of absolute bar of jurisdiction of this Court in entertaining

the Writ Petition under Articles 226 and 227 of the Constitution of India

challenging preliminary Part-I Award. This Court held in paragraphs 10 and 11

as under:

10. A short point for our consideration in this appeal is whether any bar exists

while exercising jurisdiction under Articles 226 and 227 of the Constitution of

India when Award Part I passed by the Labour Court is challenged before this

Court. The learned Single Judge refrained himself from examining the legality

of the said Award Part-I order relying on the judgment of the Apex Court in

Cooper Engineering Ltd. (supra). It appears that the judgments of learned

Single Judge in Indian Hotels Co. (supra) and Mahindra and Mahindra (supra)

were not placed before the learned Single Judge wherein the learned Single

Judge has discussed the observations made by the Supreme Court in the case of

Cooper Engineering (supra) that there will be no justification for any party to

stall the final adjudication of the dispute by the Labour Court by questioning its

4. 2014 I CLR 218

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decision regarding preliminary issue, when the matter, if worthy, can be agitated

even after final award and it will be legitimate for the High Court to refuse to

intervene at this stage. However, the Supreme Court in Cooper Engineering did

not lay down as an absolute proposition of law that the High Court should not

exercise its jurisdiction under Articles 226 and 227 in a petition challenging the

preliminary Part-I Award and should not go into the legality of the Award Part-I.

This view is further confirmed by the Division Bench of this Court in Hindustan

Unilever Ltd. V. Hindustan Lever Employees Union and Anr. reported in 2009

II CLR 1083 inw hich the Division Bench while allowing the appeal held that

the learned Single Judge ought to have considered whether the finding recorded

by the Labour Court in Part -I Award that the enquiry is not proper is correct or

not. The Division Bench has set aside the order of the Learned Single Judge and

requested the Single Judge to dispose of the petition expeditiously.

11. Thus, considering the settled position of law, in writ jurisdiction there is no

bar to test and quest the order passed in Part-I Award, if the same is perverse or

illegal. In the present case, the learned Single Judge rejected the Writ Petition

filed by the petitioner at the threshold by reading the decision of the Apex Court

in the case of Cooper Engineering as the absolute bar. We do not want to go

into the merits of the matter and give our opinion which might come into the

way of the parties of agitating all the contentions before the learned Single

Judge.

8. Mr. Kshirsagar would point out that judgment in Reliance Industries

Ltd. Raigad (supra) has been set aside by the Supreme Court by its order dated

6 May 2016. Perusal of the order dated 6 May 2016 passed by the Supreme

Court would indicate that no reasons are recorded as to why the order passed

by this Court has been set aside. Mr. Kulkarni would interpret the order of the

Apex Court dated 6 May 2016 to have been passed by way of consent.

However, there appears to be nothing in the order to indicate that the same is

passed on the basis of consent of the parties. The order reads thus:

“1. Leave granted.

2. Having heard the learned counsels for the parties we set aside the order of

the High Court and direct that the complaint shall now be decided on merits by

the Labour Court after allowing the parties to bring their respective evidence on

record. In the event the Management has reasons to be aggrieved by the award

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that will be passed it will be open for the Management to challenge the same on

both grounds i.e. with regard to the validity of the domestic enquiry held as well

as the decision on merits that may be arrived at by the learned Labour Court.

3. The appeal is disposed of in the above terms.

9. Mr. Kulkarni has also relied upon judgment of the Division Bench of

this Court in Hindustan Unilever Ltd. V/s. Hindustan Lever Employees

Union and Anr

5

in which judgment of the Apex Court in Cooper Engineering

Ltd. was relied upon with a view to seek dismissal of the Writ Petition

challenging Part-I Award. The Division Bench held in paragraphs 3 and 4 as

under:

3. In our opinion, before declining to entertain the petition on the ground

that the petitioner can challenge Part I of the Award in case Part II of the

Award goes against the petitioner, the learned Single Judge should have

applied his mind to the doubts expressed by the petitioner about his ability

to lead evidence in the matter due to expiry of 20 years. In our opinion, if

the employer is right in contending that because of passage of time he is not

able to lead evidence then inability of the employer to lead evidence is

bound to result in recording finding against him also in Part-II of the

Award. The learned Single Judge should have considered whether the

finding recorded by the Labour Court that the enquiry is not proper, is

correct or not. In case the learned Judge had found that the finding is

correct then the petition should have been dismissed and not because the

correctness of the finding is to be examined only after Part II of the award is

made. It was also open to the learned Single Judge to go into the reasons

given by the petitioner for his inability to lead evidence before the Labour

Court. In case, the learned Single Judge had found that the petitioner is in

a position to lead evidence even after expiry of 20 years then and then only

the petition could have been rejected on the ground that the correctness of

the finding that the enquiry is not proper, can be examined after Part II of

the award is passed.

4. Taking overall view of the matter therefore, in our opinion, the learned

Single Judge was not justified in rejecting the petition in limine. The

5. 2009 SCC Online Bom 2125.

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learned Single Judge, in our opinion, should have admitted the petition for

final hearing and after considering all relevant aspects should have passed

final order.

(emphasis added)

10. Mr. Kshirsagar submits that judgment in

Hindustan Unilever Ltd. is

rendered in facts of that case and the same cannot be cited in support of

absolute proposition that in every case, this Court can entertain Writ Petition

challenging Part -I Award passed by the Labour Court.

11. Mr. Kulkarni would rely upon judgment of the Single Judge of this

Court in Indian Hotels Company Ltd. vs. Jagat Singh Gurow

6

in which

judgment of the Apex Court in Cooper Engineering Ltd (supra) was relied

upon with a view to seek dismissal of the Writ Petition challenging Part -I

Award. This Court however held that High Court’s jurisdiction is not ousted

when a case is made out where Part I Award is found to be unsustainable. This

Court has in paragraph 27 held as under:

27. Perusal of these paras would indicate that the Supreme Court felt that

when the case of dismissal or discharge is referred to a Tribunal for adjudication,

the labour court should decide the preliminary issue whether domestic enquiry

has violated the principles of natural justice. If held that when there is no

domestic enquiry or defective enquiry, then, there will be no difficulty but

when the matter is in controversy between the parties that question must be

decided as a preliminary issue. On that decision being pronounced it will be for

the management to decide whether it will adduce any evidence before the

labour court. If it chooses not to adduce any evidence, thereafter, it will not be

permissible to do so in any proceedings to raise the same. It is in that context

that the Supreme Court observes that, there is no justification for any party to

stall the final adjudication of the preliminary issue by questioning its decision

with regard to the preliminary issue when the matter, if worthy, can be agitated

6. Writ Petition No.3125 of 2006, decided on 31 January 2007

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even after the final award. Thus, it is not as if this Court’s jurisdiction cannot be

invoked at all to challenge the findings on the preliminary issue. The fact that

the Supreme Court observes that if a decision is worthy of being agitated after

the final award, then, parties would be relegated to the stage where the final

award is made so that if the same is adverse, it could come to the higher court

and assail both awards viz., preliminary and final. However, if this court is of the

opinion that the settled principles justifying this Court’s jurisdiction under

Article 226 are attracted, then, it would be failing in its duty, if it does not

interfere even at the preliminary stage. No general rule can be laid down and

everything depends upon facts and circumstances of each case. Considering the

observations of the Supreme Court in the decision relied upon by Mr.Dube-

Patil, it is not possible to accede to his submission that this Court cannot

scrutinise the legality and validity of the award Part I in its jurisdiction under

Article 226 of the Constitution of India. More so, when in the facts and

circumstances of the present case, it has been demonstrated that the Presiding

Officer has proceeded on a totally erroneous basis by ignoring vital materials

and on the basis of conjectures and surmises, then, his decision cannot be

sustained. If the view taken in the present case by the learned Presiding Officer

is not possible or probable at all and that is also demonstrated, then, this Court’s

interference under Article 226 of the Constitution of India is fully justified

(emphasis added)

12. Considering the above judgment, in my view, it is not possible to

accept an absolute proposition that under no circumstances, High Court can

entertain Petition under Article 226 or 227 of the Constitution of India, where

a Part -I Award on preliminary issues is challenged. In fact, so far as the

preliminary issues relating to fairness in the enquiry and perversity in the

findings of the Enquiry Officer are concerned, the findings recorded by the

Labour Court in Part-I Award has attained finality. While delivering Part -II

Award, the Labour Court will have to examine only correctness of the penalty.

Since the findings on preliminary issues have attained finality, I do not see any

reason why the aggrieved party cannot be permitted to challenge Part -I

Award. In many cases, it takes substantial period of time for the Labour Court

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to answer preliminary points about fairness in Inquiry and perversity in the

findings of the Inquiry Officer. True it is that if the Inquiry is not held to be

fair and or if the findings of the Inquiry Officer are held to be perverse, the

employer gets a second opportunity to prove the charges by leading evidence

before the Labour Court. However in many cases, on account of passage of

substantial period of time, it becomes difficult for the employer to once again

lead evidence, which was produced before the Inquiry Officer in support of

the charges. This position is taken note of by Division Bench of this Court in

Hindustan Unilever Ltd. (supra). In the present case as well, the concerned

witnesses have been examined in the year 2017 and by now period of 7 long

years has elapsed. The witness- Unnikrishnan Nair is not the part of the

establishment of the Petitioner and was merely working as Contractor at the

relevant time. Therefore, on account of passage of 7 long years from the date

on which his evidence was recorded, it becomes highly doubtful as to whether

Petitioner would be in a position to secure his attendance for the purpose of

examining him before the Labour Court. In my view therefore, challenge to

Part -I Award cannot be rejected only on the ground that Petitioner can always

question the findings in Part -I Award while challenging the Part- 2 Award as

well. It must also be noted that in the event the employer’s inability to lead

evidence before the Labour Court on account of passage of time, and if on that

count, the termination order is set aside, while challenging Part -II Award,

employer can be made liable to pay wages under Section 17-B of the Industrial

Disputes Act, 1947 (ID Act). Therefore, right of the employer to question the

findings recorded in Part I Award by filing the petition challenging Part-II

Award is not without consequences. In my view therefore, inherent

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jurisdiction of this Court to determine validity of Part -I Award during

pendency of Reference before the Labour Court is not circumscribed only on

account of the fact that the employer can always maintain a challenge to Part -I

Award subsequently while challenging Part -2 Award. Preliminary objection

raised by Mr. Kshirsagar to maintainability of the Petition is accordingly

rejected.

13. Coming to the merits of the case, it is seen that Respondent

workmen were issued charge-sheets dated 24 January 2017 and common

charge levelled against each of them was in respect of the incident which

occurred on 16 January 2017 when the Respondents prevented the Contractor

-Mr. Unnikrishnan Nair from entering into the premises and executing the

work awarded to him. The charge also alleged the act of threatening on the

part of the Respondent-workmen in the event of Mr. Unnikrishnan entering

the office of the Company. In respect of Respondent-Prashant Gaware, an

additional charge of sleeping on duty without wearing safety shoes on 11

January 2017 was also levelled.

14. The charges levelled against Respondent -workmen have been held

to be proved on the basis of the evidence adduced in the inquiry. The

Petitioner-employer has therefore proceeded to terminate the services of

Respondents -workmen, which is subject matter of challenge in Reference

made to the Labour Court at the instance of the Respondents.

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15. By Part -I Award dated 15 July 2022, the Labour Court has held the

enquiry to be fair, proper and not in violation of principles of natural justice.

However, the findings of the Inquiry Officer are held to be perverse. The

Petitioner-employer is aggrieved by the finding recorded by the Labour Court

on preliminary issue No.2 about perversity in the findings of the Enquiry

Officer. The common charge levelled against all Respondents-workmen is

about preventing the Contractor-Mr. Unnikrishnan Nair from entering the

office of the Company and executing the work awarded to him as well as

giving threats to him. To prove this charge, Petitioner-Employer examined Mr.

Unnikrishnan Nair in the enquiry. It appears that Mr. Nair had prepared a

report in respect of happening of the events on 16 January 2017 and he claims

that the said report was submitted to the Company. The report of Mr. Nair

came to be produced in the enquiry and is held to be proved after considering

the deposition of Mr. Nair.

16. Labour Court has however, held that mere deposition of Mr. Nair is

not sufficient to prove the charge relating to 16 January 2017 levelled against

Respondents. The relevant findings recorded by the Labour Court in this

regard are to be found in paragraphs 20 and 21 of Part-I Award, which reads

thus:

20. The first party examined Mr. Unnikrishnan Nair and Mr. Vinayak Phadke.

Enquiry proceeding mentioned the cross-examination of Mr. Unnikrishnan Nair

as follows:-

प्र�न क. १७: p237. 7r ogMus_  EVJ L AEOJ LDPOD ASWD?

उ�र: साधारणत: Sुपारी03.30 ते04.00 a0 S RyDH sa. आर. ऍड�#न चे श्री.

cte0 hF0O yDoHD ASWD.

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प्र�न क. Gn vyDoHD AHIBMY EU d0 ASWD L O0 EDy RFMW0?

प्र�न क. १९: p2+7. du ogMus_   कं पनीत  ASWD, �यावर तो  �#ळा�याबाबत 

श्री श�डे  अथवा श्री. SDpE0 yDoaJ 3FJ HDFJ 6kLD Eo IHJaD Ac1ED 3U4D

नाही?

उ�र: बरोबर आहे.

प्र�न  क. २०: cN J Py7W aJ 3FJ A IBMYL ED hF0?

उ�र: तो #ाझा का#गार आहे व  FJ 3LY KMHD vyDa0  स#ोर झाली आहे. 

प्र�न क. ३०:  AS.१६.१. २०१७ रोजीचे घ�नेची काही पोलीस तक्रार के ली आहे

का?

उ�र: नाही के ली.

प्र�न क्र. 35 : तु�ही असे सां�गतले की तु�ही100 नंबरला पो�लसांना फोन 

के ला तर पो�लस आ�यावर पो�लस व तु#चे काय बोलणे  झाले?

उ�र: पो�लस आ�यावर #ी �नघून गेलो, #ाझे  व �यांचे काही बोलणे झाले

नाही.

प्र�न क. ४२: #ाझे असे �हणणे आहे की तु�हाला कोणी शारी�रक इजा के ली

नाही?

उ�र: चेतन बोरकर यांनी हात उचलला, बाकी�यांनी अड�वले, पण  अंगाला 

कोणी हात लावला नाही.

The first party examined Mr. Vinayak Phadke. Enquiry proceeding mentioned

the corss-examination of Mr. Vinayak Phadke as follows:

प्र�न क. 9 : AlFJ SDpE0 yDoa0 FP0 JaD Iु DLD OURFJ a-EcJ SDqW E( cEOD

काय?

उ�र: �याचे हजेरी पु DLD lJ SDqW E( cEO HDFJ.

प्र�न क. १०: OURFJ AS. ११.१. २०१७ रोजी का#ावर होता �याचा पुरावा सा�ीत

SDqW HDFJ?

उ�र: बरोबर आहे.

प्र�न क. १७: तु�ही जे सरतपासणीत आ. का. yDoa0AL(9S 3D) ASWJ hF0. �यास

OUla0 c"SDo'yAOA 1O EB7ODFJ Iुरावा नाही?

उ�र: बरोबर आहे.

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The first party also filed report of Mr. V.R. Phadke dtd. 16.6.2017 and report

dtd. 16.1.2017 of Mr. Unnikrishnan Nair on record. The report dtd. 16.1.2017

of the Unnikrishnan Nair is filed before the Enquiry Officer wherein it is

mentioned that it is regarding threatening and misbehaving by the workers of

the first party at company gate. It is addressed to Managing Director Mr. D.G.

Dabke. At the end of the said report it is mentioned that “ यह घ�ना #ेरे सा#ने

घ�ी और #�इसका गवाह हूं." below it there is a signature of workman working

with SOM Electrical Services.

The report dtd. 16.6.2017 is addressed to Jayashree Electron Pvt. Ltd. i.e. first

party. It is signed by Mr. V.R. Phadke. In the said report it is mentioned that,

"AS. ११.१. 8jGC BPJ 3DVD 7 Sु. ०१. ३० वाज�या�या सु#ारास #ी प�ह�या #ज�यावर

काही का#ा�न�#� गेलो असता #ला आपले कं पनीतील का#गार श्री. प्रशांत गवारे

तेथे जे #हावीर प्रोजे��चे पॅनल डावीकडूH IDaL0 y0k0 EDlDa0 L0u0 O qUaJY MDEून

सुर�ा बु� न घालता पॅनल�या आत#�ये झोपला होता. �याबाबत ताबडतोब श्री.

AlAF SDpE0 3DF0p yDoHD lDAFOJ ASWJ.”

The second party workman denied both the reports and also denied misconducts

as mentioned in the charge-sheet. Under such circumstances the burden is on

the first party to prove the misconduct of the second party. The first party failed

to file any corroborative evidence to prove report dtd. 16.1.2017 and 16.6.2017.

It is the contention of the first party that their both the witnesses deposed before

the enquiry officer and the contents in the said reports are true and correct. But,

the second party denied the said reports. This fact must be considered by the

enquiry officer.

Furthermore, the second party and his witness in their evidences before the

enquiry officer denied the incident mentioned in the alleged charge-sheet. In

the cross-examination the second party workman or his witness did not admit

any of the misconduct mentioned in the charge-sheet.

21. The enquiry officer in his findings mentioned that, श्री. नायर यांनी

उल�तपासणीत सां�गतले की, �यांनी ३. ३० ते ४. jj a0 S RyDH vyDoaD A IBMY cN J. श�डे

yDoHD ASWD. �यावर ब.प्र. यांनी �वचारले की, 3S A IBMYL OB AluDwyDaJ cN J. श�डे

यांची सही अथवा कं पनीचा �श�का नाही. 3S pDop cN J. नायर यांनी #ा�य के ली आहे.

vyDlUu0 E0 Lu 3S A IBMYL 'yL kDIHDWD AluDwyDaJ 3FJ HDFJ vyDlुळे तो

A IBMY qBMD hF0 F0 RF770 mN DFy FBO HDFJ." "श्री. PyIDW F0 a-EcJO 3D)JSD

नाहीत, तसेच, vyDoHJ P J A IBMYL 3FJ E0 WJ H3OJ O J 'yL kDIHD,yD 3D)J

पुरा�यात कोणताही फरक पडला नसता." "श्री. नायर यांनी पो�लस तक्रार के ली नाह।

�हणजे घ�ना झालीच नाही, हा बचाव ग्राहय धरता येणार नाही." These findings of

the enquiry officer are not sufficient to prove the alleged misconduct of the

second party. The Unnikrishnan Nair in his cross-examination admitted that he

has not made any police complaint against the incident of dtd. 16.1.2017. He

further admitted that he does not remember the names of his own workmen.

Mr. Vinayak Phadke in his cross-examination admitted that CCTV are available

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in the shop floor of the first party company and some part is covered under the

CCTV. In the cross-examination he further admitted that there is nothing on

record to show that he was on duty on dtd. 11.1.2017. From this it clearly shows

that except words of both the witnesses of the first party and except both the

reports there is nothing on record to prove the misconduct of the second party.

The enquiry officer failed to show how both the said reports proved. Further

the enquiry officer failed to show how the said reports proved the misconduct of

second party. Under such circumstances, the enquiry officer in his findings

mentioned that the charges leveled against the second party as per standing

order mentioned in the charge-sheet are proved. The documentary and oral

evidence and admissions of the witnesses are not corroborated with the findings

of the enquiry officer. Thus, the enquiry officer has not satisfied the test of the

doctrine of preponderance of probability. The findings of the enquiry officer

failed to satisfy the conscience of this Court that there is some evidence to

support and guard against the perversity.

17. Thus, the Labour Court has proceeded to discard the report dated 16

January 2017 of Mr. Unnikrishnan Nair on twin grounds of (i) non reflection

of any endorsement on acknowledgment receipt and (ii) non-examination of

Mr. Jayapal, whose endorsement and signature is also reflected on the said

report. In my view however, the Labour Court has completely misdirected

itself in concentrating only on report dated 16 January 2017 and by completely

ignoring the deposition of Mr. Nair. The relevant part of examination-in-chief

of Mr. Nair reads thus:

lJ ASHDoE G_-०१- 8jGC BPJ 3DVD 7 Sु.०१. ४० �#. जयश्री इले��्रीक �या गे�वर

होतो. vyDL0u0 3 lDx0p Bp cN J c1OJ hA7 h7qJ SBH- चार का#गार होतो.

vyDASLcJ cN J PyIDW 3U9SD FBO0. 3S SBH- चार का#गारांची नाव #ला #ाहीत

नाही. lJ vyD3LDYoHD m0ML K0”H hWB. vyDL0u0 3 L HlUS EDlmD DoHJ lWD 6eLW0

व आ#चेवर जोर जोरात ओरडायला लागले व #ला आत#�ये जा�यापासून अड�वले व

#ला सांगीतले की येथुन �नघुन जावा व पु�हा कं पनीचे आत जावयाचे नाही. #ी �यांना

सांगीतले की तु#चे आ�ण कं पनीचे भांडण आहे, #ाझा �याचाशी काही संबंध नाही,

#ाझा कं पनीबरोबर करार झाला आहे, #ला का# क� �ा. �यानंतर ते आ#चेवर

जोरजोरात ओरडुन �हणायला लागले की आत#�ये जायचे नाही, आत#�ये गेलात तर

आ�ही हातपाय तोडुन �ाकूव तु�ही का# कर�याचे लायकीचे राहणार नाहीत. �यानंतर

lJ hO PD’yDaD IN y/O E0 WD 63OD lWD vyDoHJ I O VlEJ ASWJ EJ OURFDWा

आ�ही घरी येऊन #ा�न �ाकूL EB7DWD EuDya0 3U9SD HDFJ F0 EB7J E0 W0. श्री

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चेतन बोरकर ने #ार�यासाठी हात उगारला.

�यानंतर #ी १०० नंबर वर पोलीसांना फोन के ला व �यानंतर #ला पोलीस येODoHD AS3W0

व �यानंतर आ�ही तेथुन �नघूH m0WB vyDASLcJ hRFJ hO m0WB HDFJ. lJ 3S

KMH0aD Eo IHJ3 yD KMH0aD A IBMY ASWD hF0. �नशाणी क्र. ७ बघून #ी सांगतो की

3S A IBMYL lDxJ 3FJ hF0. 3S A IBMYL lDx0 'yAOA 1O cN J PyIDW, जे #ाझे

का#गार आहे �यांची सही आहे व �यातील आहे. #जकूर खरा आहे.

18. Thus, deposition of Mr. Nair recorded during the course of enquiry

clearly states that he was prevented from entering into the office of Company

and was threatened. It appears that one of the workmen also lifted his hand to

assault Mr. Nair. In my view therefore, the Labour Court ought to have taken

into consideration the direct testimony of the witness, who had witnessed the

acts performed by the Respondent -workmen. Therefore, even if the report

dated 16 January 2017 was to be discarded altogether, still it cannot be said

that there is absolutely no evidence on record in support of charge levelled

against Respondents-workmen relating to incident of 16 January 2017. The

findings of the Labour Court about report dated 16 January 2017 are also

clearly unsustainable. The report has been prepared by Mr. Unnikrishnan Nair

and the same is signed by him. He has produced the same report in the

enquiry and has given evidence about the same. Therefore, merely because

there is absence of endorsement on receipt of the said report by the Company

or merely because Mr. Jayapal is not examined, who has also signed the said

report, the same could not have been a reason for the Labour Court to discard

the said report altogether.

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19. The Labour Court failed to appreciate that the test of proving charge

in a domestic enquiry is preponderance of probability. Employer is not

expected to prove the charge beyond reasonable doubt. The purpose for

conducting domestic enquiry is only to ensure maintenance of discipline by

employees. Therefore, the charges need not be proved beyond reasonable

doubt, which is a test required for proving the criminal charge. So long as there

is some evidence on record, the Enquiry Officer is justified in holding the

charge to be proved. The findings would suffer from the vice of perversity

only in the event it being established that there is total absence of evidence or

where the cases involves ‘zero evidence’. In every case where there is some

evidence to prove the charges, it is not for the Labour Court to go into the

issue of sufficiency of the evidence.

20. Mr. Kshirsagar relied upon judgment of the Single Judge of this

Court in Mahadeo Shripati Khot V/s. Divisional Traffic Superintendent

(Default), Competent Authority, Maharashtra State Road Transport

Corporation,

7

in which this Court has held in paragraphs 5 and 6 as under:

5. When the matter went to the Labour Court on the conductor's complaint,

the Court appears to have merely applied its mind to the manner in which the

departmental enquiry was conducted in the present case. The court found that

the charge was properly explained to the delinquent employee; the

departmental enquiry was duly held; the ticket checker as well as the passenger

had been examined; and the complainant was given adequate opportunity to

cross examine both witnesses. The Court observed that there was no complaint

on the part of the employee that any witness had been examined behind his

back or his request to cross examine or adjournment had been rejected. The

court found that, in the circumstances, there was no procedural defect in the

enquiry proceedings and no violation of principles of natural justice. Simply on

the basis of this conclusion, the court allowed the whole exercise to pass muster.

7. 2019 I CLR 304

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What the court appears to have missed was to consider whether the misconduct

alleged against the Petitioner was proved on the basis of the evidence placed

before the Enquiry Officer or the court. Without reflecting on the conclusion

drawn by the Enquiry Officer on the basis of the evidence before him, the

court simply considered the case of (i) observance of natural justice, (ii)

victimization and (iii) termination for a patently false reason. On these

questions, it held against the employee. When the matter went before the

revisional court, surprisingly, the revisional court practically refused to go into

the question of appreciation of evidence. The court noticed that the

complainant in the present case had not filed any counter revision challenging

the finding of the Labour Court in this behalf. The court simply noted that

findings of the Enquiry Officer were based on some evidence and could not be

said to be perverse. On this basis, the court held point No.2, concerning the

correctness of the findings of the Enquiry Officer, in the negative and then

applied its mind only to the quantum of punishment, whether proportionate or

disproportionate.

6 The above narration clearly indicates that there has been a complete failure of

justice in the present case. The charge, in the first place, made against the

delinquent conductor was on the basis of statement made by a passenger, who

was found without ticket. It could well be that he did not pay any money or get

a ticket issued and was saving his skin when the ticket checker caught him

without ticket. His statement had to be viewed with circumspection. The

passenger's own statements originally made before the ticket checker and later

on in the enquiry exhibited a clear and fundamental contradiction. The ticket

checker's versions also did not match. And no corresponding amount was

found in excess with the conductor. The charge of misappropriation of Rs.1.25

was held to be proved on the basis of this material and the hapless conductor

was deprived of his livelihood by dismissing him from service. It is one thing to

say that a clear case of misappropriation by a public servant who holds a

position of trust vis a vis public funds should be dealt with by iron hand, but

quite another to say that on the basis of flimsy material such as this the harshest

penalty of dismissal should be levied on the principle that public servants must

be above board. The very D & A Procedure, on which reliance is placed by Mr.

Hegde, which provides for punishment of discharge or dismissal, and nothing

less, for the misconduct included in Item No.7(c) of Schedule 'A', makes it very

clear that whilst awarding such punishment, the competent authority must

ensure that the guilt of the employee charged is conclusively proved on the

basis of available evidence and specific instructions issued from time to time by

the administration are scrupulously followed. As I have noted above, it can

hardly be said that the guilt of the employee charged here was even remotely

proved before the Enquiry Officer on the basis of available evidence.

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Conclusive proof was a far cry. And yet, none of the lower courts properly

went into the question of proof, either sufficient or conclusive. The Labour

Court, as noted above, did not go into that question at all; it merely satisfied

itself as to the nature of the enquiry, whether fair and proper and whether

exhibited a case of victimization or termination on a patently false reason. It

never considered whether on the basis of available evidence, the delinquent

employee's guilt was proved at all, much less conclusively. The revisional court,

for its part, refused to go into that question presumably on the footing that the

employee had not filed any crossrevision challenging the original order of the

Labour Court. The complainant employee need not have filed any revision of

his own. It was perfectly open to him to justify the order of the Labour Court,

namely, award of reinstatement with continuity of service, on the basis of

grounds otherwise available to him including any ground which was not

considered by the Labour Court. He could certainly question the propriety of

the finding of the Enquiry Officer. The revisional court, in the premises,

simply contended itself holding, practically on a sole oneliner, that the finding

of the Enquiry Officer was supported by some evidence and could not be

termed as perverse. In the facts of the case, that was hardly an appropriate

measure of judicial review to be employed by the revisional court, which was

the final court on facts.

21. Relying on judgment of Mahadev Khot (supra), Mr. Kshirsagar has

submitted that mere presence of some evidence cannot be a ground for

holding the charge to be proved. He has further submitted that in every case

where the testimony is affected by contradictions, the industrial adjudicator

would be justified in ignoring such evidence. He has further submitted that

even in a domestic enquiry charge needs to be proved conclusively. He

submitted that judgment of this Court in Mahadev Khot covers the present

cases squarely. I am unable to agree. Apex Court has repeatedly held that

presence of some evidence on record in a domestic enquiry is sufficient to

prove charge levelled against delinquent employee. In fact, Kuldeep Singh v.

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Commissioner of Police & Ors.

8

the Apex Court has held that so long as there

is some evidence on record, which is acceptable and which can be relied upon,

howsoever compendious it may be, the conclusions would not be treated as

perverse and finding would not be interfered with. Relevant findings recorded

by the Apex Court in Kuleep Singh read thus:

10. A broad distinction has, therefore, to be maintained between the decisions

which are perverse and those which are not. If a decision is arrived at on no evidence

or evidence which is thoroughly unreliable and no reasonable person would act

upon it, the order would be perverse. But if there is some evidence on record which

is acceptable and which could be relied upon, howsoever compendious it may be,

the conclusions would not be treated as perverse and the findings would not be

interfered with.

(emphasis supplied)

22. In State of Rajasthan Vs. Heem Singh

9

His Lordship Justice Dr. D. Y.

Chandrachud

(as he then was) has summarized the counters of power of

judicial review by courts and tribunals while dealing with findings of guilt

recorded in domestic inquiries. The Apex Court has held thus:

33 In exercising judicial review in disciplinary matters, there are two ends of the

spectrum. The first embodies a rule of restraint. The second defines when interfer-

ence is permissible. The rule of restraint constricts the ambit of judicial review. This

is for a valid reason.

The determination of whether a misconduct has been commit-

ted lies primarily within the domain of the disciplinary authority. The judge does

not assume the mantle of the disciplinary authority. Nor does the judge wear the hat

of an employer. Deference to a finding of fact by the disciplinary authority is a

recognition of the idea that it is the employer who is responsible for the efficient

conduct of their service. Disciplinary enquiries have to abide by the rules of natural

8.

(1999) 2 SCC 10,

9 2020 SCC OnLine SC 886

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justice. But they are not governed by strict rules of evidence which apply to judicial

proceedings. The standard of proof is hence not the strict standard which governs a

criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a

preponderance of probabilities. Within the rule of preponderance, there are varying

approaches based on context and subject. The first end of the spectrum is founded

on deference and autonomy – deference to the position of the disciplinary authority

as a fact finding authority and autonomy of the employer in maintaining discipline

and efficiency of the service. At the other end of the spectrum is the principle that

the court has the jurisdiction to interfere when the findings in the enquiry are based

on no evidence or when they suffer from perversity. A failure to consider vital evi-

dence is an incident of what the law regards as a perverse determination of fact. Pro-

portionality is an entrenched feature of our jurisprudence. Service jurisprudence has

recognized it for long years in allowing for the authority of the court to interfere

when the finding or the penalty are disproportionate to the weight of the evidence

or misconduct. Judicial craft lies in maintaining a steady sail between the banks of

these two shores which have been termed as the two ends of the spectrum. Judges do

not rest with a mere recitation of the hands-off mantra when they exercise judicial

review. To determine whether the finding in a disciplinary enquiry is based on some

evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the

conscience of the court that there is some evidence to support the charge of miscon-

duct and to guard against perversity. But this does not allow the court to re-appreci-

ate evidentiary findings in a disciplinary enquiry or to substitute a view which ap-

pears to the judge to be more appropriate. To do so would offend the first principle

which has been outlined above. The ultimate guide is the exercise of robust common

sense without which the judges’ craft is in vain.

(emphasis and underlining added)

23. More recently, the Apex Court in State of Karnataka v. Umesh,

10

has

reiterated the principles that govern the disciplinary enquiry and criminal trial.

It is held:

16. The principles which govern a disciplinary enquiry are distinct from those

which apply to a criminal trial. In a prosecution for an offence punishable under the

criminal law, the burden lies on the prosecution to establish the ingredients of the

offence beyond reasonable doubt. The accused is entitled to a presumption of

innocence. The purpose of a disciplinary proceeding by an employer is to enquire

into an allegation of misconduct by an employee which results in a violation of the

10. (2022) 6 SCC 563

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service rules governing the relationship of employment. Unlike a criminal

prosecution where the charge has to be established beyond reasonable doubt, in a

disciplinary proceeding, a charge of misconduct has to be established on a

preponderance of probabilities. The rules of evidence which apply to a criminal trial

are distinct from those which govern a disciplinary enquiry. The acquittal of the

accused in a criminal case does not debar the employer from proceeding in the

exercise of disciplinary jurisdiction.

22. In the exercise of judicial review, the Court does not act as an appellate forum

over the findings of the disciplinary authority. The court does not reappreciate the

evidence on the basis of which the finding of misconduct has been arrived at in the

course of a disciplinary enquiry. The Court in the exercise of judicial review must

restrict its review to determine whether:

(i) the rules of natural justice have been complied with;

(ii) the finding of misconduct is based on some evidence;

(iii) the statutory rules governing the conduct of the disciplinary enquiry

have been observed; and

(iv) whether the findings of the disciplinary authority suffer from perversity;

and

(v) the penalty is disproportionate to the proven misconduct.

(emphasis and underling supplied)

24. In the present case it cannot be said that there is total absence of

evidence on record. There is direct evidence given by person, who has been

prevented from entering into the office of the Company and who has been

threatened by the delinquent-workmen. Therefore, it cannot be said that the

findings recorded by the Enquiry Officer are not supported by any evidence

on record.

25. Mr. Kshirsagar has attempted to point out few contradictions into

the deposition of Mr. Unnikrishnan particularly with regard to the report

submitted by him. According to him, Mr. Unnikrishnan in answer to question

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No. 17 of his cross-examination stated that report was submitted by him

between 3.30 p.m. to 4.00 p.m. to Shri Shende of H.R. (Administration).

However, in the examination–in-chief, he stated that he did not enter the

office on that day. In my view contradiction cannot be assumed in the matter

of submission of report to Mr. Shende, HR Admin as it is possible that report

can be handed over to the concerned person even without entering the office.

So far as the alleged contradiction in the deposition of Nair about filing of

complaint is concerned, Mr. Kshirsagar would submit that in his deposition

Mr. Nair emphatically stated that he did not file police complaint about the

incident dated 16 January 2017 and subsequently it was found that Nair had

in fact filed a police complaint, which came to be relied upon by Petitioner-

employer in Complaint (ULP) No. 11/17. In this regard, reliance is placed on

averments in paragraph 20 of statement of claim. However, perusal of

averments in paragraph 20 merely contains vague pleading that ‘

furthermore

second party also came to know first party has suppressed certain evidence,

which contradicted the statement made by Management’s witness during his

cross-examination’.

Thus, there is no specific pleading about filing of

complaint by Mr. Nair even in the statement of claim. Therefore, it is difficult

to accept that there is any contradiction in the deposition given by Mr. Nair.

26. Even if it is assumed that there are any contradictions in evidence of

Mr. Nair, in my view the same would not affect his evidence and none of the

alleged contradictions would render his deposition to be completely

unbelievable. In any case even if report of 16 January 2017 is to be discarded

altogether, the specific testimony of Mr. Unnikrishnan recorded on 24 January

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2017 cannot be ignored. It is also a matter of fact that after receipt of the

charge-sheet, only reply given by the Respondent -workmen was about denial

of charges, levelling false charges and causing mental harassment to them.

They did not state in their respective replies that incident in question did not

occur at all or that Mr. Unnikrishnan had not approached on the gate of the

Company on 16 January 2017.

27. The findings recorded by the Labour Court expecting corroborative

evidence is clearly unsustainable as it is not necessary in domestic enquiry to

produce additional evidence to corroborate the evidence which is already on

record. Mere non-filing of police complaint by Mr. Unnikrishnan did not

mean that the deposition given by him in the domestic enquiry is required to

be altogether ignored. Though the Labour Court has considered the test of

preponderance of probability, it has erroneously held that the Enquiry Officer

has not satisfied the said test. In my view, there is some evidence on record to

prove misconduct alleged in the charge-sheet. Therefore, it cannot be stated

that findings recorded by the Enquiry Officer are perverse. The Labour Court

has erred in holding that the findings of the Enquiry Officer are perverse in

Part-I Award dated 15 July 2022.

28. Writ Petitions accordingly succeed. Part -I Awards dated 15 July

2022 are set aside to the extent of finding of the Labour Court about

perversity of the finding of the Enquiry Officer. The Labour Court shall

accordingly proceed to deliver part -2 Award on the remaining issues framed.

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29. Writ Petitions are allowed to the above extent. Rule is made

absolute. There shall be no orders as to costs.

[SANDEEP V. MARNE, J.]

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14 August 2024

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