The State of Maharashtra v. Shri Chandrakant Dhondiram Gurav

1) State of Maharashtra has fled this petition challenging the Judgment and Order dated 10 June 2011 passed by the Presiding ofcer, Labour Court, Sangli allowing Complaint (ULP) No. 18/1999 fled by the Respondent under Section 28 read with Item Nos.1(a), (b) (d) and (f) of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) and directing his reinstatement w.e.f. 31 December 1998 with continuity and full backwages. The Judgment and Order dated 16 August 2011 passed by the _____Page No. 1 of 11____ Member, Industrial Court, Sangli rejecting Petitioner’s Revision (ULP) NO. 13/2011 fled under Section 44 of the Act is also under challenge.

2) Facts of the case are that Respondent was engaged as ‘Ward Boy’ in the Government Medical College and Hospital, Miraj, District- Sangli. He was served with Memorandum of Chargesheet dated 10 June 1998 alleging seven charges against him. Charges levelled against him included allegations of threatening, abusing and insulting superior ofcers, failure to obey the directives of superiors, avoiding performance of assigned duties, publication of defamatory articles in newspapers etc. After holding enquiry into the charge, the Enquiry ofcer submitted report holding the charges to be proved and recommended imposition of punishment of dismissal. Accordingly, by Order dated 31 December 1998, the Petitioners imposed penalty of dismissal from service on the Respondent.

3) Respondent fled Complaint (ULP) No. 18/1999 before the Labour Court, Sangli challenging the penalty of dismissal. The Complaint was resisted by Petitioner by fling Written Statement. The Labour Court, Sangli proceeded to dismiss the complaint by Judgment and Order dated 20 October 2007. Revision fled by the Respondent against the Labour Court’s decision was partly allowed on 31 July 2010 setting aside Labour Court’s decision and remanding the complaint back to the Labour Court for fresh decision. In remanded complaint, evidence was led, both by Petitioner as well as by respondent. The Labour Court delivered Order dated 17 January 2011 on preliminary issue of fairness in the enquiry and held that the enquiry was not fair, proper and legal and that the fndings of the Enquiry Ofcer are _____Page No. 2 of 11____ perverse. Opportunity was given to Petitioner to justify those fndings by leading evidence on merits. It appears that despite grant of opportunity, Petitioner failed to lead evidence before the Labour Court and fled a Pursis at Exhibit-C-23 that it did not desire to lead oral evidence. The Labour Court therefore delivered Judgment and Order dated 10 June 2011 allowing the complaint and directing Respondent’s reinstatement w.e.f. 31 December 1998 with full backwages and continuity of service. Petitioner fled Revision (ULP) No. 13/2011 before the Industrial Court, Sangli challenging Judgment and Order dated 10 June 2011 of Labour Court. The Industrial Court, however proceeded to dismiss the Revision by its Judgment and Order dated 16 August 2011. Petitioner has fled this petition challenging the decisions of the Labour Court and the Industrial Court.

4) This Court has admitted the petition by Order dated 18 July 2012 and has stayed the orders passed by the Labour and the Industrial Court during pendency of the petition.

5) Ms. Bane, the learned AGP appearing for Petitioners would submit that Respondent committed grave misconduct of threatening, abusing and assaulting Doctors and other senior ofcials posted in the hospital. That the charges have been duly proved by examination of as many as 8 witnesses in the Departmental Enquiry. That Respondent was duly ofered full opportunity of defence in the enquiry. That the Enquiry Ofcer considered the evidence on record by taking into consideration the defence raised by the Respondent and thereafter gave his fndings on each articles of charge. That therefore there was no scope for the Labour Court to interfere in the _____Page No. 3 of 11____ dismissal order which was passed after grant of due opportunity of defence to the Respondent. That no case of perversity in the fndings recorded by the Enquiry Ofcer could be made out as his fndings are supported by the evidence on record. That the Doctors and other senior ofcials, who have threatened and abused, have given direct evidence in the enquiry and that therefore there is sufcient evidence on record to hold Respondent guilty of misconduct alleged against him. According to her, in any case Respondent, being a State Government employee, ought to have approached Maharashtra Administrative Tribunal and his Complaint fled before the Labour Court was clearly not-maintainable. She would therefore pray for setting aside the orders passed by the Labour and the Industrial Court.

6) Per-contra, Mr. Nikam the learned counsel appearing for the Respondent-employee would submit that after the Labour Court delivered Part-I Award on the preliminary issues of fairness in the enquiry and perversity in the fndings of the Enquiry Ofcer, Petitioners failed to lead evidence before the Labour Court despite grant of opportunity to do so. That it is well settled law that if the enquiry is held to be not fair and fndings are held to be perverse in Part-I Award, the evidence recorded in the enquiry cannot be read or considered. In support of his contention, Mr. Nikam would rely upon the Judgment of the Apex Court in Neeta Kapish V/s. Presiding Officer, Laboiour Court, Anr.[1] and of this Court in Bomboiay Hospital Trust V/s. Miss. Rita Manwani, Anr.[2] 1999 1 CLR 219 2005 II CLR 711 _____Page No. 4 of 11____ 7) Mr. Nikam would submit that on account of failure of Petitioner to lead evidence before the labour court, there is no evidence on record to prove charges leveled against the Respondent and therefore no fault can be found in the impugned orders of the Labour and the Industrial Court. He would submit that the entire enquiry was conducted in gross violation of principles of natural justice. That Respondent was not even allowed to crossexamine the witnesses and that the entire enquiry was conducted in closed cabin in absence of Respondent. That he was not even supplied copy of the Report of the Enquiry Ofcer. That therefore the Labour Court has rightly set aside the order of dismissal. He would pray for dismissal of the petition.

8) Rival contentions of the parties now fall for my consideration.

9) It must be observed at the very outset that the manner in which the ofcials of Petitioner-Hospital have acted throughout the disciplinary enquiry, as well as in the proceedings before the Labour Court is highly intolerable. Respondent faced charges of repeatedly abusing, assaulting and threatening Doctors as well as other senior ofcials in the hospital. If there was any truth into the charges leveled against Respondent, it appears that Respondent had become highly undisciplined, incalcitrant and a dangerous element in the hospital, who was not only refusing to work as per the directives of superior ofcials but had infact become a threat to the Doctors, Ofcials and other employees of the Hospital. When such serious charges were leveled against Respondent, it was the duty of the concerned ofcials of the hospital to ensure that proper enquiry was conducted by afording due opportunity of defence to Respondent so that the fnding of guilt recorded in _____Page No. 5 of 11____ respect of such grave charges are not interfered by any Court or Tribunal on account of any technicalities. However, the procedure adopted by the ofcials of the hospital, as well as by the District Enquiry Ofcer, who has conducted the enquiry, is shocking.

10) Perusal of the report of the Enquiry Ofcer would indicate that as many as 8 witnesses are examined in the enquiry who gave detailed account of Respondent’s behaviour. It appears that one of the witnesses, Mr. Ravindra Vishnu Mali, Hygiene Inspector stated in the enquiry that Respondent slapped him in addition to breaking the glass of Hospital’s window. Similar evidence is given about threats, abuses, insult and intimidation on the part of the Respondent by other Doctors and ofcials of the hospital. It appears from their depositions that he was in the habit of charging towards everyone attempting to discipline him with intention of committing assault. In the light of such concrete evidence against Respondent, it was necessary that the Enquiry Ofcer ought to have given opportunity to him to cross-examine the witnesses. However, what is shocking is the fact that the enquiry was conducted in causal manner and Respondent was not even allowed to remain present when the statements of the witnesses were recorded. There is nothing on record to indicate that Respondent was permitted to cross-examine the witnesses examined in the enquiry. It is incomprehensible as to how the District Enquiry Ofcer, who is supposed to know all the relevant rules relating to conduct of departmental enquiry, could have allowed conduct of enquiry in absence of Respondent. Despite repeatedly enquiring with Ms. Bane as to whether Respondent was given opportunity to cross-examine any of the 8 witnesses, she is unable to _____Page No. 6 of 11____ place on record any material to indicate that such opportunity was indeed given. It also appears that the report of the Enquiry Ofcer was also not provided to Respondent. Mr. S.D. Joshi, who is examined as a Witness before the Labour Court after remand of the complaint, stated in his crossexamination that the enquiry was conducted in a ‘secretive manner’ and that the Report was also kept ‘secret’. If any witnesses felt threatened to depose against Respondent, the Petitioners ought to have dispensed with enquiry and ought to have adopted the route of punishing Respondent under Rule 13 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 by recording reasons in writing that it was not reasonably practical to hold enquiry against Respondent on account of his intimidating character. Once decision to hold inquiry is taken, the procedure under the Rules must be followed by examining witnesses in presence of and by afording opportunity of cross examination to the delinquent employee.

11) Non supply of report of Inquiry Ofcer to Respondent is yet another illegality. The penalty of dismissal imposed vide Order dated 31 December 1998 is premised on the said report of the Inquiry ofcer. Thus, decision to punish the Respondent is taken without supplying him copy of the Report of the Enquiry Ofcer. This is in direct violation of Judgment of the Apex Court in Managing Director, ECIL Vs. B. Karunakar[3].

12) The shocking state of afairs continued during pendency of proceedings before the Labour Court. After the Labour Court delivered Part- I Award holding that the enquiry was not fair and proper and that the fndings

_____Page No. 7 of 11____ of the Enquiry Ofcer were perverse, Petitioner was given opportunity to justify the fndings of the Enquiry Ofcer by leading evidence. However, a Pursis fled before the Labour Court at Exhibit-C-23 stating that Petitioner did not desire to lead oral evidence. Even in the present petition, Part-I Award is not challenged and what is challenged is only fnal Judgment and Order dated 10 June 2011.

13) In my view, therefore Petitioners themselves did not leave any valid reason either for the Labour Court or for this Court to uphold the order of dismissal imposed on Respondent. The concerned ofcials have committed dereliction of duty while conducting enquiry against the Respondent, who is permitted to go scot-free despite availability of sufcient evidence on record to indicate his role in the grave misconduct of threatening, abusing, insulting, intimidating and assaulting Doctors and other ofcials of the hospital. In absence of any opportunity of cross-examination being given to Respondent, the entire evidence on record has been rendered useless, which is required to be ignored. The said evidence is required to be discarded in absence of cross-examination by the Respondent. Atleast before the Labour Court, Petitioners ought to have examined the available witnesses who could have deposed about the acts of misconduct allegedly committed by Respondent. Even that opportunity was not availed by Petitioners. In that view of the matter, no case is made out for interference in both the judgments and Orders passed by the Labour Court on preliminary, as well as fnal issues. There was nothing for the Industrial Court to intervene in the fndings of the Labour Court in exercise of revisional jurisdiction under Section 44 of the MRTU & PULP Act. _____Page No. 8 of 11____ 14) Though Ms. Bane has urged that the evidence recorded during the course of inquiry be taken into consideration, in my view the same cannot be done in view of well settled law that once Part-I Award is delivered granting opportunity to employer to prove the charges, only evidence recorded before Labour Court can be taken into consideration by ignoring the evidence recorded during the course of domestic inquiry. Mr. Nikam’s reliance on judgments in Neeta Kapish and of this Court in Bomboiay Hospital Trust in this regard is apposite.

15) Respondent appears to be now at advanced age of 57 years with another year left for his retirement. The Labour Court has awarded full backwages to him from the date of dismissal from service i.e. w.e.f. 31 December 1998. Award of full backwages for such unduly long period of 26 long years would put undue fnancial burden on the State Government. This liability is created on the State Government on account of negligence on the part of the concerned ofcials who failed to conduct proper enquiry, as well as to prosecute the proceedings before the Labour Court by adducing evidence. The penalty of dismissal from service imposed on Respondent is required to be set aside on technical ground of failure to grant him opportunity of defence. Otherwise, consideration of depositions of witnesses would indicate the manner in which Respondent was behaving in the hospital by creating an atmosphere of terror. Respondent’s compliant was initially dismissed by the Labour Court in the year 2007 and was remanded by the Industrial Court in the year 2010. By the time, Part-I Award was delivered in the year 2011, it was 13 long years from the date of issuance of chargesheet. It _____Page No. 9 of 11____ appears to be the reason why Petitioner was unable to lead evidence before Labour Court.

16) Considering the above circumstances, grant of 100% backwages to Respondent would not be justifable. In my view, the amount of backwages are required to be brought down to 50% considering the reason why the penalty of dismissal is required to be set aside coupled with the long intervening period of 26 years, during which backwages will have to be paid to the Respondent. Till the time he was dismissed from service, Respondent had rendered hardly 5 years of service and even during those 5 years, he was repeatedly involved in allegations of threatening, abusing, intimidating and assaulting Doctors and other ofcials of the hospital. The relief of reinstatement and continuity would ensure payment of pension and pensionary benefts to the Respondent, if he was a regular government servant. In such circumstances, payment of 100% backwages would not be justifed considering the peculiar facts and circumstances of the present case.