Before parting with this case, however, we must strike a
note of caution, as has been done by the Division Bench of the
Bombay High Court. It could not be gainsaid that the employers
have a right to take disciplinary actions and to hold domestic
enquiries against their erring employees. But for doing so, the
standing orders governing the field have to be followed by such
employers. These standing orders give sufficient protection to
the concerned employees against whom such departmental
enquiries are proceeded with. If such departmental proceedings
initiated by serving of chargesheets are brought in challenge at
different stages of such proceedings by the concerned
employees invoking the relevant clauses of Item 1 of Schedule IV
before the final orders of discharge or dismissal are passed, the
Labour Court dealing with such complaint should not lightly
interfere with such pending domestic enquiries against the
concerned complainants. The Labour Court concerned should
meticulously scan the allegations in the complaint and if
necessary, get the necessary investigation made in the light of
such complaint and only when a very strong prime facie case is
made out by the complainant appropriate interim orders
intercepting such domestic enquiries in exercise of powers under
Section 30(2) can be passed by the Labour Courts. Such orders
should not be passed for mere askance by the Labour Courts.
Otherwise, the very purpose of holding domestic enquiries as
per the standing orders would get frustrated.”
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4086 OF 2016
Ashok Rambhaji Tupe,
V
The Maharashtra State Road Transport
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 07/04/2016
Citation: 2016(6) ALLMR 630
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioner is aggrieved by the order dated 11/01/2016
delivered by the Labour Court, by which the application Exhibit U2,
seeking interim relief u/s. 30(2) in Complaint (ULP) no.37/2015, has
been rejected. The petitioner is also aggrieved by the judgment dated
30/03/2016 delivered by the Industrial Court, by which the Revision
(ULP) No.6/2016 filed by the petitioner, has been dismissed.
3. The petitioner claims to have joined duties as a Bus Conductor
with the Respondent/Corporation on 20/01/2011. On 02/01/2013,
the petitioner was on duty on the bus moving from Kopargaon to
Somthan. There were 70 students holding bus passes and 14
passengers travelling in the said bus. One lady boarded the bus at
Rahuri and was travelling to Pandhariche Pool. Due to rush in the
bus, the petitioner could not issue a travelling ticket.
4. That the bus was subjected to a surprise check and it was
noticed that the lady was travelling ticketless. The lady passenger
stated to the Reporter in the Flying Squad that though she had paid
the fare, she was not issued a ticket. This statement is false and is
unbelievable.
5. It is further submitted that a charge sheet dated 24/01/2013
was issued to the petitioner. He submitted his reply dated
30/01/2013 claiming that there were 90 to 95 passengers in the bus.
By the time the bus would reach the place Pangeli, the pass holding
students occupying the bus would be between 110 to 125. The charge
of accepting fare and not issuing a ticket was denied. If the fare of
the ticket Rs.32/ had been accepted, the excess amount should have
been Rs.32/ and not a shortfall of Rs.18/.
6. The charge sheet is vague and ambiguous is the contention.
After the enquiry was completed, the petitioner received the second
show cause notice dated 03/12/2015 on 07/12/2015 and he replied
to the same on 11/02/2015. It was on 12/02/2015 that he preferred
Complaint (ULP) No.37/2015 before the Labour Court and was
protected against disciplinary action. The said protection was vacated
by the impugned order dated 11/01/2016 when the application for
interim relief was rejected. However, the protection was continued till
the Industrial Court dismissed the revision petition filed by the
petitioner and the said protection has been continued by the
Industrial Court till 10/04/2016.
7. It is strenuously contended that there are several discrepancies
in the report of the Enquiry Officer. The charge sheet states that a
shortfall of Rs. 18/ was noticed. The ticket issued to the lady
passenger was for Rs.32/. If the amount was accepted and the
ticket was not issued, there should have been an excess amount with
the petitioner. The report submitted by the reporter also contains
mistakes and the Enquiry Officer has admitted that there were
mistakes in the report. Yet, the Enquiry Officer has held the
petitioner guilty of the charge levelled upon him.
8. Mr.Barde further submits that when the charge sheet is vague
and when the report submitted by the reporter contains errors, the
Labour Court should have interfered with the proposed punishment.
The passenger Smt.Reshma Pramod Meher has filed an affidavit in
the Labour Court contending that she had not paid any ticket fare to
the petitioner who had failed to issue her a travelling ticket. All these
aspects should have been considered by the Labour Court as well as
the Industrial Court. The past record of the petitioner is clean and
unblemished. He, therefore, prays for a protection to the services of
the petitioner till the decision of his complaint before the Labour
Court, Ahmednagar.
9. Mr.Deshmukh, learned Advocate for the respondent/
Corporation submits that the misconduct at issue has been
committed by the petitioner within 2 years of his joining duties. After
the present misconduct, he was imposed with a punishment of fine of
Rs.200/ for issuing a manual ticket instead of an electronic ticket.
On 25/06/2013, he was punished with fine of Rs.200/ for having
not returned the excess money to a passenger. He submits that from
the date of joining, the petitioner is involved in not less than 3
incidents amounting to misconducts. If this misconduct of the
petitioner, which is visible in the first 2 years of his employment, goes
unpunished, he has another more than 25 years of service and would
continue to commit such misconducts.
10. He submits that the issue before the Labour Court was rightly
considered by it as well as by the Industrial Court and hence interim
relief has been refused by both the Courts. He, therefore, prays for
the dismissal of this petition.
11. I have considered the submissions of the learned Advocates.
12. It is trite law that 2 years of clean service is not an indicative
factor of an unblemished service of an employee. Over a
considerable period of service rendered without any blemishes would
indicate the discipline and honest attitude of employee. (Read Bajaj
Auto LImited Vs. Kalidas Deoram Patil, 1999 (II) CLR 1108)
13. The report of the reporter as is analysed in the enquiry report
indicates that the lady passenger has specifically stated to the
Inspecting Squad that she has paid the fare for the ticket and the
petitioner has not issued her a ticket. The Hon'ble Supreme Court in
the matter of KSRTC Vs. B.S.Hullikatti, AIR 2001 SC 930 and KSRTC
Vs. A.T.Mane, 2005(3) SCC 254 has held that nonexamination of the
passengers in the enquiry does not in any way vitiate the enquiry. It
is not possible to examine passengers in every case and hence the
nonexamination of the passengers would not render the findings of
the Enquiry Officer perverse.
14. The petitioner has placed reliance upon the judgment of this
Court in the matter of Mahadeo Atmaramji Nage Vs. MSRTC, 2009(2)
BCR 824. Mr.Barde points out from the said judgment that this
Court has appreciated that none of the passengers had stated to the
Squad that they had paid fare of the tickets and were not issued
travelling tickets. They have also not stated that they demanded the
tickets and the Conductor did not issue them such tickets. I do not
find that this judgment would be of any assistance to the petitioner
since the Lady Passenger has specifically stated to the Flying Squad
that she had paid the money to the petitioner who had failed to issue
her a ticket. This statement of the passenger negates the statement
of the petitioner that there was a rush in the bus and he could not
issue a ticket to the said lady passenger though he had every
intention to reach her for collecting the fare and issuing a ticket.
15. It cannot be ignored that the law laid down by this Court in the
matter of Maharashtra State Cooperative Cotton Growers Marketing
Federation Ltd., and another Vs. Vasant Ambadas Deshpande, [2014
I CLR 878 = 2014(3) Mh.L.J. 339] that extraneous evidence is not to
be considered while assessing whether the enquiry could be termed
as being vitiated and whether the findings of the Enquiry Officer are
perverse. The petitioner acquired an affidavit from the said lady
passenger and produced the same before the Labour Court to
support his contention that she had not paid any money to the
petitioner. In my view, this affidavit of the concerned passenger
would amount to an extraneous piece of evidence and will have to be
ignored.
16. It is stated by the learned Advocate for the respondents that
earlier, the petitioner has been fined for two misconducts. Firstly for
issuing a manual ticket instead of an electronic ticket and secondly
for not returning the excess amount to a passenger.
17. The Hon'ble Apex Court in the matter of Hindustan Lever V/s
Ashok Vishnu Kate, (1995) 6 SCC 326 has struck a note of caution in
paragraph Nos. 53 and 54 which read as under :
“53. Reference made in paragraph VI to the Bombay High
Court's judgments also cannot be of any avail as they were
based on the view which was accepted by the learned Single
Judge of the High Court of Bombay at Nagpur which has rightly
been overturned by the Division Bench of the Bombay High
Court in the judgment under appeal on a correct interpretation of
the relevant provisions of the Act. Therefore, the earlier view
taken by the learned Single Judges of the Bombay High Court
cannot be said to be well sustained. For all these reasons, the
appellant has made out no case for our interference in this
appeal.
54. Before parting with this case, however, we must strike a
note of caution, as has been done by the Division Bench of the
Bombay High Court. It could not be gainsaid that the employers
have a right to take disciplinary actions and to hold domestic
enquiries against their erring employees. But for doing so, the
standing orders governing the field have to be followed by such
employers. These standing orders give sufficient protection to
the concerned employees against whom such departmental
enquiries are proceeded with. If such departmental proceedings
initiated by serving of chargesheets are brought in challenge at
different stages of such proceedings by the concerned
employees invoking the relevant clauses of Item 1 of Schedule IV
before the final orders of discharge or dismissal are passed, the
Labour Court dealing with such complaint should not lightly
interfere with such pending domestic enquiries against the
concerned complainants. The Labour Court concerned should
meticulously scan the allegations in the complaint and if
necessary, get the necessary investigation made in the light of
such complaint and only when a very strong prime facie case is
made out by the complainant appropriate interim orders
intercepting such domestic enquiries in exercise of powers under
Section 30(2) can be passed by the Labour Courts. Such orders
should not be passed for mere askance by the Labour Courts.
Otherwise, the very purpose of holding domestic enquiries as
per the standing orders would get frustrated.”
18. In the light of the above, I do not find that the Labour Court or
the Industrial Court have committed any error in refusing interim
relief to the petitioner. The impugned orders are neither perverse nor
erroneous and cannot be interfered with only because a different view
could be taken. Nevertheless, in the event the petitioner succeeds
after his complaint is decided on its merits, he would stand to gain
the service benefits as are available to a litigant succeeding in
litigation.
19. This petition, being devoid of merit, is dismissed. Rule is
discharged.
20. At this juncture, the learned Advocate for the petitioner prays
for continuation of the protection granted earlier. Learned Advocate
for the respondent has opposed the same on the ground that charges
of misappropriation have been levelled against the petitioner.
21. The second show cause notice is dated 03/12/2015 and
pertains to the charge of misappropriation. It is trite law that acts of
misappropriation are to be dealt with, with an iron hand As
observed above, the petitioner would be entitled for service benefits in
the event he succeeds in proving unfair labour practices against the
respondents. So also, considering the caution sounded by the
Hon'ble Apex Court in the Hindustan Lever judgment (supra), the
request made by the petitioner for protection, is rejected.
( RAVINDRA V. GHUGE, J.)
Print Page
note of caution, as has been done by the Division Bench of the
Bombay High Court. It could not be gainsaid that the employers
have a right to take disciplinary actions and to hold domestic
enquiries against their erring employees. But for doing so, the
standing orders governing the field have to be followed by such
employers. These standing orders give sufficient protection to
the concerned employees against whom such departmental
enquiries are proceeded with. If such departmental proceedings
initiated by serving of chargesheets are brought in challenge at
different stages of such proceedings by the concerned
employees invoking the relevant clauses of Item 1 of Schedule IV
before the final orders of discharge or dismissal are passed, the
Labour Court dealing with such complaint should not lightly
interfere with such pending domestic enquiries against the
concerned complainants. The Labour Court concerned should
meticulously scan the allegations in the complaint and if
necessary, get the necessary investigation made in the light of
such complaint and only when a very strong prime facie case is
made out by the complainant appropriate interim orders
intercepting such domestic enquiries in exercise of powers under
Section 30(2) can be passed by the Labour Courts. Such orders
should not be passed for mere askance by the Labour Courts.
Otherwise, the very purpose of holding domestic enquiries as
per the standing orders would get frustrated.”
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4086 OF 2016
Ashok Rambhaji Tupe,
V
The Maharashtra State Road Transport
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 07/04/2016
Citation: 2016(6) ALLMR 630
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioner is aggrieved by the order dated 11/01/2016
delivered by the Labour Court, by which the application Exhibit U2,
seeking interim relief u/s. 30(2) in Complaint (ULP) no.37/2015, has
been rejected. The petitioner is also aggrieved by the judgment dated
30/03/2016 delivered by the Industrial Court, by which the Revision
(ULP) No.6/2016 filed by the petitioner, has been dismissed.
3. The petitioner claims to have joined duties as a Bus Conductor
with the Respondent/Corporation on 20/01/2011. On 02/01/2013,
the petitioner was on duty on the bus moving from Kopargaon to
Somthan. There were 70 students holding bus passes and 14
passengers travelling in the said bus. One lady boarded the bus at
Rahuri and was travelling to Pandhariche Pool. Due to rush in the
bus, the petitioner could not issue a travelling ticket.
4. That the bus was subjected to a surprise check and it was
noticed that the lady was travelling ticketless. The lady passenger
stated to the Reporter in the Flying Squad that though she had paid
the fare, she was not issued a ticket. This statement is false and is
unbelievable.
5. It is further submitted that a charge sheet dated 24/01/2013
was issued to the petitioner. He submitted his reply dated
30/01/2013 claiming that there were 90 to 95 passengers in the bus.
By the time the bus would reach the place Pangeli, the pass holding
students occupying the bus would be between 110 to 125. The charge
of accepting fare and not issuing a ticket was denied. If the fare of
the ticket Rs.32/ had been accepted, the excess amount should have
been Rs.32/ and not a shortfall of Rs.18/.
6. The charge sheet is vague and ambiguous is the contention.
After the enquiry was completed, the petitioner received the second
show cause notice dated 03/12/2015 on 07/12/2015 and he replied
to the same on 11/02/2015. It was on 12/02/2015 that he preferred
Complaint (ULP) No.37/2015 before the Labour Court and was
protected against disciplinary action. The said protection was vacated
by the impugned order dated 11/01/2016 when the application for
interim relief was rejected. However, the protection was continued till
the Industrial Court dismissed the revision petition filed by the
petitioner and the said protection has been continued by the
Industrial Court till 10/04/2016.
7. It is strenuously contended that there are several discrepancies
in the report of the Enquiry Officer. The charge sheet states that a
shortfall of Rs. 18/ was noticed. The ticket issued to the lady
passenger was for Rs.32/. If the amount was accepted and the
ticket was not issued, there should have been an excess amount with
the petitioner. The report submitted by the reporter also contains
mistakes and the Enquiry Officer has admitted that there were
mistakes in the report. Yet, the Enquiry Officer has held the
petitioner guilty of the charge levelled upon him.
8. Mr.Barde further submits that when the charge sheet is vague
and when the report submitted by the reporter contains errors, the
Labour Court should have interfered with the proposed punishment.
The passenger Smt.Reshma Pramod Meher has filed an affidavit in
the Labour Court contending that she had not paid any ticket fare to
the petitioner who had failed to issue her a travelling ticket. All these
aspects should have been considered by the Labour Court as well as
the Industrial Court. The past record of the petitioner is clean and
unblemished. He, therefore, prays for a protection to the services of
the petitioner till the decision of his complaint before the Labour
Court, Ahmednagar.
9. Mr.Deshmukh, learned Advocate for the respondent/
Corporation submits that the misconduct at issue has been
committed by the petitioner within 2 years of his joining duties. After
the present misconduct, he was imposed with a punishment of fine of
Rs.200/ for issuing a manual ticket instead of an electronic ticket.
On 25/06/2013, he was punished with fine of Rs.200/ for having
not returned the excess money to a passenger. He submits that from
the date of joining, the petitioner is involved in not less than 3
incidents amounting to misconducts. If this misconduct of the
petitioner, which is visible in the first 2 years of his employment, goes
unpunished, he has another more than 25 years of service and would
continue to commit such misconducts.
10. He submits that the issue before the Labour Court was rightly
considered by it as well as by the Industrial Court and hence interim
relief has been refused by both the Courts. He, therefore, prays for
the dismissal of this petition.
11. I have considered the submissions of the learned Advocates.
12. It is trite law that 2 years of clean service is not an indicative
factor of an unblemished service of an employee. Over a
considerable period of service rendered without any blemishes would
indicate the discipline and honest attitude of employee. (Read Bajaj
Auto LImited Vs. Kalidas Deoram Patil, 1999 (II) CLR 1108)
13. The report of the reporter as is analysed in the enquiry report
indicates that the lady passenger has specifically stated to the
Inspecting Squad that she has paid the fare for the ticket and the
petitioner has not issued her a ticket. The Hon'ble Supreme Court in
the matter of KSRTC Vs. B.S.Hullikatti, AIR 2001 SC 930 and KSRTC
Vs. A.T.Mane, 2005(3) SCC 254 has held that nonexamination of the
passengers in the enquiry does not in any way vitiate the enquiry. It
is not possible to examine passengers in every case and hence the
nonexamination of the passengers would not render the findings of
the Enquiry Officer perverse.
14. The petitioner has placed reliance upon the judgment of this
Court in the matter of Mahadeo Atmaramji Nage Vs. MSRTC, 2009(2)
BCR 824. Mr.Barde points out from the said judgment that this
Court has appreciated that none of the passengers had stated to the
Squad that they had paid fare of the tickets and were not issued
travelling tickets. They have also not stated that they demanded the
tickets and the Conductor did not issue them such tickets. I do not
find that this judgment would be of any assistance to the petitioner
since the Lady Passenger has specifically stated to the Flying Squad
that she had paid the money to the petitioner who had failed to issue
her a ticket. This statement of the passenger negates the statement
of the petitioner that there was a rush in the bus and he could not
issue a ticket to the said lady passenger though he had every
intention to reach her for collecting the fare and issuing a ticket.
15. It cannot be ignored that the law laid down by this Court in the
matter of Maharashtra State Cooperative Cotton Growers Marketing
Federation Ltd., and another Vs. Vasant Ambadas Deshpande, [2014
I CLR 878 = 2014(3) Mh.L.J. 339] that extraneous evidence is not to
be considered while assessing whether the enquiry could be termed
as being vitiated and whether the findings of the Enquiry Officer are
perverse. The petitioner acquired an affidavit from the said lady
passenger and produced the same before the Labour Court to
support his contention that she had not paid any money to the
petitioner. In my view, this affidavit of the concerned passenger
would amount to an extraneous piece of evidence and will have to be
ignored.
16. It is stated by the learned Advocate for the respondents that
earlier, the petitioner has been fined for two misconducts. Firstly for
issuing a manual ticket instead of an electronic ticket and secondly
for not returning the excess amount to a passenger.
17. The Hon'ble Apex Court in the matter of Hindustan Lever V/s
Ashok Vishnu Kate, (1995) 6 SCC 326 has struck a note of caution in
paragraph Nos. 53 and 54 which read as under :
“53. Reference made in paragraph VI to the Bombay High
Court's judgments also cannot be of any avail as they were
based on the view which was accepted by the learned Single
Judge of the High Court of Bombay at Nagpur which has rightly
been overturned by the Division Bench of the Bombay High
Court in the judgment under appeal on a correct interpretation of
the relevant provisions of the Act. Therefore, the earlier view
taken by the learned Single Judges of the Bombay High Court
cannot be said to be well sustained. For all these reasons, the
appellant has made out no case for our interference in this
appeal.
54. Before parting with this case, however, we must strike a
note of caution, as has been done by the Division Bench of the
Bombay High Court. It could not be gainsaid that the employers
have a right to take disciplinary actions and to hold domestic
enquiries against their erring employees. But for doing so, the
standing orders governing the field have to be followed by such
employers. These standing orders give sufficient protection to
the concerned employees against whom such departmental
enquiries are proceeded with. If such departmental proceedings
initiated by serving of chargesheets are brought in challenge at
different stages of such proceedings by the concerned
employees invoking the relevant clauses of Item 1 of Schedule IV
before the final orders of discharge or dismissal are passed, the
Labour Court dealing with such complaint should not lightly
interfere with such pending domestic enquiries against the
concerned complainants. The Labour Court concerned should
meticulously scan the allegations in the complaint and if
necessary, get the necessary investigation made in the light of
such complaint and only when a very strong prime facie case is
made out by the complainant appropriate interim orders
intercepting such domestic enquiries in exercise of powers under
Section 30(2) can be passed by the Labour Courts. Such orders
should not be passed for mere askance by the Labour Courts.
Otherwise, the very purpose of holding domestic enquiries as
per the standing orders would get frustrated.”
18. In the light of the above, I do not find that the Labour Court or
the Industrial Court have committed any error in refusing interim
relief to the petitioner. The impugned orders are neither perverse nor
erroneous and cannot be interfered with only because a different view
could be taken. Nevertheless, in the event the petitioner succeeds
after his complaint is decided on its merits, he would stand to gain
the service benefits as are available to a litigant succeeding in
litigation.
19. This petition, being devoid of merit, is dismissed. Rule is
discharged.
20. At this juncture, the learned Advocate for the petitioner prays
for continuation of the protection granted earlier. Learned Advocate
for the respondent has opposed the same on the ground that charges
of misappropriation have been levelled against the petitioner.
21. The second show cause notice is dated 03/12/2015 and
pertains to the charge of misappropriation. It is trite law that acts of
misappropriation are to be dealt with, with an iron hand As
observed above, the petitioner would be entitled for service benefits in
the event he succeeds in proving unfair labour practices against the
respondents. So also, considering the caution sounded by the
Hon'ble Apex Court in the Hindustan Lever judgment (supra), the
request made by the petitioner for protection, is rejected.
( RAVINDRA V. GHUGE, J.)
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