w w w . L a w y e r S e r v i c e s . i n



Dr. G. M. Taori Central India Institute of Medical Sciences v/s Dilip Gajanan Khedikar

    WRIT PETITION NO. 1702 OF 2019

    Decided On, 11 December 2020

    At, In the High Court of Bombay at Nagpur

    By, THE HONORABLE JUSTICE: MANISH PITALE J.

    For Petitioner: Mr. N. S. Bhattad, counsel And For Respondent: Mr. V. D. Raut, counsel



Judgment Text

Heard.

(2) Rule. Rule made returnable forthwith. Thewrit petition is heard finally with the consent of learned counselfor the rival parties.

(3) By this writ petition, the petitioners haveapproached this Court challenging judgment and order dated02/01/2019 passed by the Industrial Court, Nagpur Bench,whereby revision petition filed by the sole respondent has beenallowed. The judgment and order of the Labour Court has beenset aside and the petitioners have been directed to reinstate thesole respondent with continuity of service and full back-wages, byquashing and setting aside order dated 04/06/1999 of dismissalfrom service passed by the petitioners against the sole respondent.

(4) The petitioner is a charitable trust, appearingthrough its Director, which runs an institute of specialized medicaltreatment in Neurology and other ailments in the city of Nagpur.The respondent was appointed as an attendant with the petitionerinstitute and later, in the year 1992, he was promoted as Technician on an EEG Machine. The petitioners issued twocharge-sheets against the respondent for misconducts, pursuant towhich enquiry was conducted. One of the charges against therespondent was that on 16/07/1998 at about 04.00 p.m., heentered the office of the Administrative Officer of the petitionerinstitute/hospital and shouted, using abusive language in anaggressive manner, in respect of the Director of the petitionerinstitute, thereby disturbing the peace and tranquility of thepetitioner institute.

(5) In the enquiry conducted against therespondent, oral and documentary evidence was led by theparties. While the petitioners examined members of the staff, as itswitnesses to prove the charges against the respondent, heexamined one witness i.e. a co-employee, in support of hisdefence. It was the case of the petitioner that the abusivebehavior of the respondent clearly amounted to misconduct asdefined in clauses 24(a), 24(k), and 24(l) of the Model StandingOrders, applicable to the petitioner institute. The respondentdenied any wrong doing on his part.

(6) Upon evidence being led by the rival partiesbefore the enquiry officer, the said enquiry culminated in reportdated 20/03/1999. The enquiry officer arrived at findings againstthe respondent and it was specifically found that the respondenthad indeed indulged in abusive behavior with use of filthylanguage against the Director of the petitioner institute, therebycommitting misconduct as per the aforesaid clauses of the ModelStanding Orders. On the basis of such findings, on 16/04/1999, ashow-cause notice was issued to the respondent, as to whypunishment of dismissal from service ought not to be imposedupon him. After the respondent submitted his reply, on04/06/1999, the petitioners issued order against the respondentdismissing him from service.

(7) Aggrieved by the said action, the respondentfiled complaint before the Labour Court at Nagpur on10/05/1999, seeking a declaration that the charge-sheet issuedagainst the respondent and the consequent order of dismissal fromservice dated 04/06/1999 amounted to an unfair labour practiceunder Item 1(a),(b),(d),(f) and (g) of Schedule – IV of theMaharashtra Recognition of Trade Unions and Prevention of UnfairLabour Practices Act, 1971 (Act, 1971). On this basis it was claimed that the charge-sheet as well as the order of dismissalfrom service deserved to be quashed and set aside. Thepetitioners filed their written statement opposing the contentionsraised on behalf of the respondent. The Labour Court grantedopportunity to the parties to lead evidence on the preliminaryissues of fairness of enquiry and perversity of findings. Thereafter,on 11/01/2010, the Labour Court found that the enquiry wasindeed fair and it was conducted in consonance with theprinciples of natural justice. On 29/11/2010, the Labour Courtheld that the finding in the enquiry report could not be said to beperverse. Thereafter, on 20/01/2010, the Labour Court passed itsJudgment and order dismissing the complaint filed by therespondent.

(8) Aggrieved by the same, the respondent filedrevision petition before the Industrial Court at Nagpur. By theimpugned judgment and order dated 02/01/2019, the IndustrialCourt reversed the findings of the Labour Court. It was found thatthe orders passed by the Labour Court on the second preliminaryissue regarding perversity and the final judgment and orderdismissing the complaint of the respondent were unsustainable.Accordingly, the Industrial Court set aside the order, allowed the complaint of the respondent, holding that the petitioners hadengaged in unfair labour practice as per Item 1(a),(b) and (d) ofSchedule – IV of the Act, 1971. Thereupon, the Industrial Courtset aside the order of dismissal from service issued against therespondent and directed his reinstatement with continuity ofservice and full back-wages.

(9) Aggrieved by the said order of the IndustrialCourt, the petitioners approached this Court by filing the instantwrit petition. On 05/03/2019, this Court issued notice andgranted ad-interim stay of the impugned judgment and order ofthe Industrial Court, subject to the petitioners depositing amountof Rs.2 Lakhs in this Court. It is undisputed that the said amountwas deposited by the petitioners in this Court. The respondentfiled application for withdrawal of the said amount duringpendency of the present writ petition. In this situation, this Courtdirected listing of the present writ petition for final disposal.

(10) Mr. S. N. Bhattad, learned counsel appearingfor the petitioners submitted that the Industrial Court committed agrave error in passing the impugned judgment and order. It wassubmitted that the Industrial Court itself found that the findings rendered by the Labour Court on the question of fairness ofenquiry could not be interfered with, yet the said Courterroneously reversed the findings on the question of perversity offindings in the enquiry report, without appreciating the materialon record in the correct perspective. It was submitted that on thecharge against the respondent regarding abusive behavior and useof filthy language in the establishment of the petitioner institute,the Industrial Court did not specifically find that the charge wasnot proved and instead proceeded to hold that the words used bythe respondent could not be said to be abusive, even if they wereinsulting and humiliating in nature. It was submitted that theIndustrial Court committed a grave error in holding that the wordsused by the respondent in the context of Maharashtra, could notbe said to be abusive. On this basis, the Industrial Courtproceeded to hold that misconduct could not be said to have beencommitted by the respondent under clauses 24(k), and 24(l) ofthe Model Standing Orders. It was submitted that the exercise ofthe jurisdiction of the Industrial Court was absolutelyunsustainable and that the reasoning in the impugned judgmentand order did not justify interference with the findings renderedby the Labour Court against the respondent. The learned counselfor the petitioners placed reliance on judgments of this Court in the case of Balasaheb Ambadas vs. Indian Seemless, 2014 (5)Mh.L.J. pg. 512 (Bombay SB), Sahil Khan vs. Heshmat and Co.,2007 (1) Mh.L.J. pg. 249 (Bombay DB), Premier Automobiles vs.HST Hedge, 2006 (III) C.L.R. pg. 527 and judgment of Hon’bleSupreme Court in the case of Bharat Forge vs. Uttam Manohar,2005 (2) S.C.C. pg. 489.

(11) On the other hand Mr. V. D. Raut, learnedcounsel appearing for the sole respondent submitted that aperusal of the impugned judgment and order of the IndustrialCourt would reveal that the Industrial Court in terms found thatthe Labour Court had failed to appreciate certain admissions onrecord and that the material on record was not appreciated in thecorrect perspective by the Labour Court while rendering findingsin favour of the petitioners in respect of perversity of findings inthe enquiry report. It was submitted that the material on recorddid indicate that the evidence was not sufficient to prove thecharges levelled against the respondent and that therefore, theimpugned judgment and order passed by the Industrial Court wasjustified. It was submitted that if the material on record wasperused in the correct perspective, unfair labour practices asfound in Item 1(a), (b) and (d) of Schedule – IV of the Act, 1971 was correctly found to be proved by the Industrial Court and thattherefore, the present writ petition deserved to be dismissed.

(12) Heard learned counsel for the rival parties andperused the material on record. There is no dispute about the factthat the Model Standing Orders applied to the petitionerestablishment. The relevant clauses of the Model Standing Ordersfor the present case in the context of misconduct are as follows :-

24(a) :- Willful insubordination ordisobedience whether or not in combination withanother of any lawful and reasonable order of asuperior.

24(k) :- Riotous, disorderly or indecentbehavior on the premises of the establishment.

24(l) :- Commission of any act subversive ofdiscipline or good behavior on the premises ofthe establishment.

(13) It is claimed on behalf of the respondent that inthe present case, the finding of the Industrial Court regardingunfair labour practices on the part of the petitioners under Item1(a), (b) and (d) of Schedule – IV of the Act, 1971, was justified.Relevant portion of the aforesaid provision reads as follow :-

'1. To discharge or dismiss employees –

(a) by way of victimization;
(b) not in good faith, but in colourable exerciseof employer’s rights;
(d) for patently false reasons; '

(14) The material on record shows that the LabourCourt gave a favourable finding in favour of the petitioners inrespect of preliminary issue pertaining to the enquiry being fairand in consonance with the principles of natural justice. Theimpugned judgment and order passed by the Industrial Court hasnot interfered with the said finding and therefore, it becomes clearthat the enquiry conducted against the respondent was fair and byfollowing the principles of natural justice. In fact, the nature ofevidence brought on record before the Labour Court clearly showsadmissions on the part of the respondent that documents wereserved, opportunities were granted for leading oral anddocumentary evidence and that the enquiry officer proceeded in amanner that could certainly be said to be fair and proper.Therefore, there could not be any dispute about the said aspect ofthe matter.

(15) Since the Industrial Court in the impugnedjudgment and order has reached a finding that the Labour Courtought not to have held in favour of the petitioners regardingperversity of findings in the enquiry report, it becomes necessaryto peruse the enquiry report and in that context, the nature ofevidence placed on record by the rival parties during the course ofthe enquiry.

(16) In respect of the specific charge against therespondent regarding the incident dated 16/07/1998, thepetitioners examined three witnesses i.e. Mr.Pendharkar,Administrative Officer in whose presence the respondent wasalleged to have shouted in abusive and filthy language in respectof the Director of the petitioner institute, Mr. A. M. Munje andSmt. Uma Ramesh, members of the staff of the petitioner institute.The respondent on the other hand, examined only one witness i.e.co-employee Mr. Ravi Wankhede in support of his defence.According to the aforesaid witnesses who deposed in favour of thepetitioners, the respondent specifically shouted in an aggressiveand violent manner in the premises of the petitioner establishmentthat the Director was Nalayak and that he was a third class personwho should be sacked from the institute immediately. It was deposed by the said witnesses that despite the fact that one ofthem, the Administrative Officer, tried to pacify the respondent, hebecame aggressive while using the aforesaid filthy language,thereby, disturbing peace and tranquility of the petitionerinstitute/hospital. The said witnesses stuck to their version in theface of cross-examination. The record shows that the lone witnesswho appeared in support of the defence of the respondent statedin his evidence in cross-examination that he was notaccompanying the respondent when the incident took place in theoffice of the Administrative Officer of the petitioner institute. Hefurther admitted that it was not correct to say that the Director ofthe petitioner institute had misbehaved with the respondent,creating a situation of strike in the establishment. He furtheradmitted and specifically deposed that the incident as mentionedin the charge-sheet was narrated by the respondent himself to thesaid witness. This was the nature of evidence on record withregard to the aforesaid specific incident regarding the behavior ofthe respondent.

(17) A perusal of the enquiry report dated20/03/1999 would show that the aforesaid evidence has beenexamined in detail by the enquiry officer and findings have been rendered against the respondent. The enquiry officer has foundthe evidence of the three witnesses of the petitioner institute asbelievable and it is found that the evidence of the lone witness ofthe respondent did not carry much substance, primarily for thereason that the said witness specifically admitted in crossexamination that he was not present with the respondent whenthe aforesaid incident dated 16/07/1998 took place. On thisbasis, the enquiry officer found that the incident dated16/07/1998 stood proved, which amounted to misconduct underthe above quoted Model Standing Orders.

(18) The Labour Court took into consideration thenature of evidence led by the rival parties before the enquiryofficer and the findings rendered in the enquiry report in thatcontext. The Labour Court found that sufficient evidence wasindeed available on record to support the findings rendered in theenquiry report and therefore, it could not be said that suchfindings were perverse.

(19) The Industrial Court in the impugned judgmentand order has reversed the aforesaid findings of the Labour Courtand it has been held that the findings in the enquiry report against the respondent ought to have been held to be perverse. A perusalof the impugned judgment and order shows that, according to theIndustrial Court, the Labour Court had failed to consider materialadmissions and undisputed facts on record. A reference is madein paragraph 13 of the judgment and order that the Labour Courtfailed to take into consideration the material demonstrating therewere certain complaints by lady employees against the Director ofthe petitioner institute, that one of the witnesses of the petitionerinstitute admitted that the respondent was working as aTechnician, and that one Doctor examined by the petitioners haddeposed against the petitioners during cross-examination. Atanother place in the impugned judgment and order, the IndustrialCourt found that a witness of the petitioners had stated in crossexamination that the respondent had not misbehaved with him. Itis further recorded that there were admissions on record andmaterial to indicate that while respondent was not being paidincreased salary, another employee handling similar work wasbeing given higher salary. It was also recorded that the behaviorof the respondent and use of abusive language on 16/07/1998was not in the presence of the Director of the petitioner institute,therefore, it was also a fact which ought to have been taken intoconsideration. Thus, from the reasons adopted by the Industrial Court in the impugned judgment and order, it becomes clear thatmuch emphasis has been placed by the Industrial Courterroneously on certain material on record, indicating that somewitnesses did refer to alleged wrong doing by the Director of thepetitioner institute.

(20) It also transpires from such materialhighlighted by the Industrial Court that there could have beencertain grievances of some employees in respect of the functioningof the Director of the petitioner institute. But, there is not an iotaof material referred to by the Industrial Court while holding thatthere was perversity in the finding rendered by the enquiry officerthat incident dated 16/07/1998 indeed took place, in which therespondent did use the aforesaid filthy language in an aggressivemanner in respect of the Director of the petitioner institute. Thereis no analysis in the impugned judgment and order of theIndustrial Court in respect of the findings given by the LabourCourt in this respect. Therefore, there was no substratum for theIndustrial Court to have reached findings against conclusionsrendered by the Labour Court and the findings on record in theenquiry report.

(21) In fact, the impugned judgment and orderproceeds on the basis that such language was indeed used by therespondent in the incident that occurred on 16/07/1998.Thereupon, the Industrial Court seems to have found that in viewof the manner in which the affairs of the petitioner institute werebeing conducted by the Director, such language could have beenused and that in any case, it could not be said to be abusive even ifit was insulting and humiliating. The Industrial Court in theimpugned judgment and order has surprisingly held that thewords used by the respondent could not be said to be abuses inMaharashtra. It is categorically held that since the respondent hadnot abused the Administrative Officer in whose presence suchlanguage was used, it could not amount to misconduct. It isfurther held that even if the respondent had uttered strong wordsin an aggressive manner, they did not amount to abuses andtherefore, misconduct as defined in clauses 24(k) and 24(l) of theModel Standing Orders could not be said to have been committedby the respondent. The Industrial Court has rendered a positivefinding that the respondent cannot be said to have acted in amanner subversive of good behavior. It is on this basis that theIndustrial Court has held that the respondent was victimized, thatthe action of the petitioners was not in good faith and that the respondent was dismissed for patently false reasons, therebyshowing that unfair labour practice had been committed by thepetitioners under Item 1(a), (b) and (d) of Schedule – IV of theAct, 1971.

(22) This Court is unable to appreciate the approachadopted by the Industrial Court in the impugned judgment andorder. A perusal of clauses 24(k) and 24(l) of the Model StandingOrders would show that it would amount to misconduct if anemployee indulged in disorderly or indecent behavior on thepremises of the establishment and if he committed any actsubversive of discipline or good behavior on the premises of thepetitioner establishment. This Court finds that ample evidencewas on record proving the incident that occurred on 16/07/1998in the office of the Administrative Officer of the petitionerinstitute/establishment. The same was amply proved by theevidence on record and the respondent could not place on recordany material to successfully deny the same. In fact, the enquiryofficer analyzed the evidence in detail while reaching findingsagainst the respondent on this aspect. The Labour Court alsofound that the respondent had indeed indulged in such behaviour.As noted above, the Industrial Court in the impugned judgment and order has not dislodged the finding that the incident indeedoccurred on 16/07/1998 in the manner as stated by thepetitioners. The kind of words used by the respondent have beenalready noted by this Court. Therefore, the only question thatremains is, as to whether use of such words would amount tomisconduct under clauses 24(k) and 24(l) of the Model StandingOrders.

(23) In this regard the learned counsel for thepetitioners is justified in relying upon judgments of this Court inthe case of Balasaheb Ambadas vs. Indian Seemless (supra),Sahil Khan vs. Heshmat and Co. (supra), and Premier Automobilesvs. HST Hedge (supra). In these judgments, this Court hadoccasion to consider cases where foul language was used andemployees had indulged in misbehavior similar to the one foundto have been proved against the respondent in the present case.This Court has found that in such situations, misconduct wascertainly proved under the aforesaid clauses 24(k) and 24(l) ofthe Model Standing Orders, amounting to serious misconduct,thereby inviting punishment of dismissal from service. In fact, thisCourt has specifically held that dismissal of an employee who isfound to have indulged in such misconduct cannot be said to be a disproportionate punishment. This Court finds that the ratio ofthe aforesaid judgments squarely applies to the facts of the presentcase, indicating the grave error committed by the Industrial Courtin the impugned judgment and order, while holding in favour ofthe respondent.

(24) In fact, the learned counsel for the petitionerswas justified in relying upon the judgment of Hon’ble SupremeCourt in the case of Bharat Forge vs. Uttam Manohar (supra),wherein the extent of jurisdiction to be exercised by the Courtsunder the provisions of the Act of 1971, has been delineated. It isspecifically laid down that jurisdiction is required to be exercisedby the Courts under the Act of 1971 in terms of the provisions ofthe said statute and within four corners of the same. It isspecifically held that compassion

Please Login To View The Full Judgment!

cannot be a ground forinterfering with punishment imposed on an employee, who isfound guilty of having committed serious misconduct. It is laiddown that once the misconduct is found to be proved, theconsequences must follow. (25) A perusal of the impugned judgment and ordershows that the Industrial Court completely misconstrued its jurisdiction under the provisions of the Act, 1971, whileinterfering with the findings of the Labour Court. In fact, as notedabove, the Industrial Court could not have held that despite theincident dated 16/07/1998 proved against the respondent, it didnot amount to use of abusive language by him and that therefore,misconduct could not be said to have been committed underclauses 24(k) and 24(l) of the Model Standing Orders. It issurprising that the Industrial Court held that use of the aforesaidwords by the respondent did not amount to abuses inMaharashtra. The Industrial Court was expected to analyze as towhether the use of the aforesaid words amounted to an actsubversive of discipline or good behavior, as also disorderly orindecent behavior on the part of the respondent in the premises ofthe petitioner institute/establishment. The aforesaid clauses ofthe Model Standing Orders do not require use of abuses on thepart of the employee to conclude that a misconduct wascommitted. The Industrial Court itself found that the words usedby the respondent could be treated as insulting and humiliatingand yet gave findings in favour of the respondent. The entireapproach of the Industrial Court was vitiated and reference tosome material on record regarding dissatisfaction of someemployees in the petitioner institute against its Director, were wholly irrelevant to the question of misconduct on the part of therespondent, as defined under the aforesaid clauses of the ModelStanding Orders. Therefore, it is found that the impugnedjudgment and order is wholly unsustainable and it deserves to beset aside. (26) In view of the above, the writ petition isallowed. (27) The impugned judgment and order passed bythe Industrial Court is quashed and set aside. Consequently, theorder of the Labour Court dismissing the complaint of therespondent is upheld. As a result, the petitioners are permitted towithdraw the amount of Rs.2 Lakhs deposited in this Court alongwith accrued interest. (28) Rule is made absolute in above terms.
O R