Judgment:
Ebello, J.
1. The respondent No. 1 herein filed a complaint being Complaint (ULP) No. 69 of 1994 before the VII Labour Court at Bombay against the petitioner herein. The said complaint was filed under the provisions of Item No. 1 (a), (b), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, (hereinafter referred to as the MRTU and PULP Act.) In the said complaint the Respondent No. 1 herein also sought interim reliefs. The Labour Court by its order dated April 28, 1994 was pleased to grant prayer clauses (a) and (b) of the application for interim reliefs. Aggrieved by the said order the petitioner herein preferred Revision Application (ULP) No. 58 of 1994 before the Industrial Court at Bombay. The Industrial Court initially granted an interim order. It may also be mentioned that the Respondent No. 1 herein had also preferred revision application which was numbered as review application 7 of 1994. Both the revision applications and the review application were disposed by the common order dated July 14, 1994. It is against these orders in complaint (ULP) No. 309 of 1994 and revision application (ULP) No. 58 of 1994, that the petitioner has approached this Court by way of petition under Article 226 of the Constitution of India.
2. Brief narration of the facts may be necessary for the purpose of disposal of these petitions :
The petitioner has issued charge sheet dated December 12, 1992 against the Respondent No. 1. The charges were as under :
'(a) A patient by name Mr. D. N. Tiwari from Bhopal was referred to you by Dr. R. K. Bisarya, General Surgeon, Bhopal, for investigation and treatment. He attended Tata Memorial Hospital on or about March 9, 1992 and registered himself as a private patient under you. The patient (D. N. Tiwari) was admitted in the Dev Nursing Home, Bombay on March 14, 1992 and was operated by you for Squalors Cell Carcinona. You were fully aware that M/s. Dev Nursing Home is not in the list of recognised Hospitals/Nursing Homes of Tata Memorial Hospital. You had also failed to obtain any permission from TMH to operate the patient in the said nursing home as a special case.
(b) You had got admitted the patient Mr. D. N. Tiwari in the said Nursing Home falsely stating, that no vacant bed was available on or about March 14, 1992 in Tata Memorial Hospital. However, the said fact regarding non-availability of bed in Tata Memorial Hospital was not mentioned/stated in the case file of the patient.
(c) You have issued a Cash Receipt of Rs. 10,000/- to Shri D. N. Tiwari. The said Cash Receipt is signed by you with the address of Tata Memorial Hospital. You have also put your rubber stamp with the address of Tata Memorial Hospital on the receipt. By the said act you have falsely implied and created an impression that the said receipt is an official receipt to the knowledge and on behest of Tata Memorial Hospital.
(d) You have charged Mr. D. N. Tiwari a sum of Rs. 10,000/- on account of the operation charges. In your receipt issued to Mr. D. N. Tiwari, you have falsely certified that the operation charges are at par with the Tata Memorial Centre and Cancer Research Institute rates. The said statement is false and as per the Schedule of rates of Tata Memorial Hospital, the maximum amount/fees chargeable is only Rs. 7000/- (Rupees Seven Thousand only).
(e) Although you have received the said amount fees from Mr. Tiwari you have falsely and with ulterior intention not credited the amount received by you to Tata Memorial Hospital 'as income earned from outside' as stipulated/provided for under para 3(c) of Circular no. TMC/AD/44/86 dated April 24, 1986, although almost eight months passed since the receipt of the said amount by you. You paid the amount only on November 17, 1992 after receipt of our letter dated November 13, 1992 calling for your explanation.
(f) By your aforesaid acts, you have tarnished the reputation of the Hospital, and also put the Hospital to financial loss. Moreover, you have also committed a breach of rules, and circulars issued from time to time. You have also committed fraud and behaved dishonestly in connection with the Hospital's business and property'.
3. Based upon the charge sheet, an inquiry was conducted by Dr. M. G. Deo, Director, Cancer Research Institute, Parel, Bombay-12. Dr. Deo submitted his report dated August 27, 1993. In his report Dr. Deo held charge No. 1 as not proved, charge No. 2 as not proved, charge No. 3 has not been substantiated. In respect of charge No. 4, Dr. Deo held that in signing the receipt and falsely certifying reimbursement claims and the essentiality Certificate, Dr. Sharma has committed administrative impropriety. Charge No. 5 was held as not proved. At this juncture it would be relevant for the purpose of discussion to indicate the findings and conclusions in so far as charge Nos. 4 and 5 are concerned, as they are the subject matter of the subsequent action by the petitioner.
In so far as charge No. 4 is concerned, the findings are as under :
'Dr. Sharma has charged Mr. D. N. Tiwari a sum of Rs. 10,000/- on account of the operation charges. In his receipt issued to Mr. D. N. Tiwari, he has falsely certified that the operation charges are at par with the Tata Memorial Centre and Cancer Research/Institute rates. The said statement is false and as per the schedule of Rates of Tata Memorial Hospital, the maximum amount/fees chargeable is only Rs. 7000/- (Rupees seven thousand Only).
Dr. Sharma says signing the receipt could have been a mistake, but it was an oversight. However, the balance of evidence is that the receipt and other papers for reimbursement claims were consciously signed by Dr. Sharma. This would mean that Dr. Sharma did not produce convincing evidence that the amount was actually to some other party.
Since Mr. Tiwari was not his patient in Dev Nursing Home, Dr. Sharma had no authority to authenticate reimbursement claims pertaining to expenditure incurred at the Dey Nursing Home. Further, he has made false statement on the Essentiality Certificate (Exh. No. 12) 'at the Tata Memorial Hospital, Bombay and that the services of the special nurses, for which an expenditure of Rs. 12,050/- (1) operation charges Rs. 10000/- only (2) bed, operation theatre etc. Rs. 2050/- was incurred vide bills and receipts attached, were essential for the recovery/prevention of serious deterioration in the condition of the patient'. The entire amount of Rs. 12,050/- pertains to Mr. Tiwari's expenditure at the nursing home (Exh. No. 10 and 14). He had no authority to sign and thus made false statements. In doing so, Dr. Sharma has mislead a Government Department in money matters. This is a very serious matter'.
In so far as charge No. 5 is concerned, the findings are as under :
'Although Dr. Sharma had-received the said amount fees from Mr. Tiwari he had falsely and with ulterior intentions not credited the amount received by him to Tata Memorial Hospital 'as income earned from outside' as stipulated/provided for under para 3(c) of Circular No. TMC/AD/44/86 dated April 24, 1986, although almost eight months passed since the receipt of the said amount by him. He paid the amount only on November 17, 1992 after receipt of TMC letter dated November 13, 1992 calling for his explanation.
Dr. Sharma's contention that he was not aware of the rules and regulations stipulated in circular No. TMC/AD/44/86 dated 24th April, 1986 (Exh No. 3) is not tenable. However, the said circular does not specify the time interval between the recovery of the fees from the patient and its deposition in the TMH Accounts as 'outside income'. The major problem is that management has not properly implemented para 3(c) of the circular. Ever since he was allowed outside practice, Dr. Sharma gave no details, as required in 3(c), while crediting the outside earning to TMH. But he was never alerted or warned about the breach of rules, creating an impression that no such rule exists or it was only on paper and the management was not serious about its implementation'.
4. The Disciplinary Authority on receipt of the said report of the Enquiry Officer issued a letter dated October 8, 1993 to the Respondent No. 1 stating that it has no comments to offer on the conclusions of the Inquiry Officer on charge Nos. 1, 2, and 3. The Disciplinary Authority, however, pointed out that it has tentatively decided to differ from the conclusions of the Inquiry Officer on charge Nos. 4 and 5. The Respondent No. 1 herein was called upon to show cause as to why the Governing Council (Disciplinary Authority) should not differ from the view taken by the Enquiry Officer and hold Respondent No. 1 guilty on those charges i.e. charge Nos. 4 and 5. In response to the said letter, the Respondent No. 1 filed his reply dated October 23, 1993. The respondent No. 1 gave various reasons as to why the Disciplinary Authority should not differ from the findings of the Enquiry Officer. On receipt of the said letter, a letter was sent to the Respondent No. 1 dated November 25, 1993 under the signature of Dr. P. B. Desai, Director for and on behalf of TMC Governing Council. It was pointed out to Respondent No. 1 that considering the material, reply given by the Respondent No. 1, the Council, having regard to the evidence on record, had come to the conclusion that charge Nos. 4 and 5 stood proved and that continuance of the Respondent No. 1 in service of TMC is prejudicial to the interest and prestige of the Institution. The Council was of the opinion/unanimous view that the services of Respondent No. 1 should be terminated for serious misconduct and breach of the terms and conditions of appointmet. The Respondent No. 1 was called upon to show cause within 10 days from the receipt of the said letter why the proposed penalty i.e. termination from service should not be imposed. The, respondent by his reply dated December 6, 1993, to the said letter, contended that the action proposed would be harsh and punitive for the so-called administrative lapses on the part of the Respondent No. 1, without prejudice to his contention that there were no such administrative lapses.
5. Apprehending that he would be dismissed from service, the Respondent No. 1 filed Writ Petition in this Court being Writ Petition No. 2536 of 1993 challenging the show cause notice dated October 8, 1993. The petitioner filed affidavit in reply. Thereafter on January 31, 1994 the respondent withdrew the said Writ Petition. The order disposing of the said Writ Petition is as under :
'Allowed to be withdrawn on application by counsel for the petitioner as final order is not yet passed in disciplinary proceedings.'
6. As in the letter dated December 6, 1993 the 1st respondent sought personal bearing, the Respondent No. 1 was given personal hearing on February 19, 1994 on the question of punishment to be imposed on the Respondent No. 1. The Respondent No. 1 thereafter apprehending that inspite of the personal hearing he would be dismissed from service, filed a complaint under the MRTU and PULP Act, on February 21, 1994 before the 7th Labour Court Bombay. The 1st respondent also sought interim reliefs. On February 22, 1994 the Labour Court was pleased to grant ex-parte ad-interim order restraining the petitioner herein from terminating the services of the Respondent No. 1 pending hearing and final disposal of the application for interim reliefs. On March 2, 1994 the petitioner herein filed their detailed affidavit in reply. On April 28, 1994 as already set out the Labour Court was pleased to grant interim reliefs in terms of prayers (a) and (b) of the application for interim reliefs. Revision Application filed by the petitioner herein was dismissed on July 21, 1994 and hence Writ Petition being Writ Petition No. 1749 of 1994 was filed in this Court.
7. It may also be mentioned that subsequent to the issuance of the charge sheet on December 12, 1992 the 1st Respondent was suspended pending the departmental enquiry-proceedings against the respondent No. 1. The order of suspension has been stayed by the Labour Court and the, 1st respondent was allowed to resume his duties with the petitioner hospital. The said order was confirmed in revision by the Industrial Court. On August 16, 1994 while admitting the petition, this Court directed that pending the hearing and final disposal of the Writ Petition the suspension to continue.
8. Shri K. K. Singhvi, Senior Counsel appearing for the petitioner has in the first instance contended that the complaint filed by the 1st respondent was not maintainable as the appropriate Government in the case is not the State Government but the Central Govermnent. If the appropriate Government is the Central Government, then the Labour Court under the MRTU and PULP Act has no jurisdiction. In support of his contention the Learned Counsel has relied on the bye-laws of Tata Memorial Centre to point out that the petitioner is fully financed and funded by the Central Government. The Rules of business of the Government of India have also been cited to show that the Tata Memorial Hospital and Cancer Research Institute falls under the Department of Atomic Energy in the matter of allocation of business. Shri Singhvi also relied on the below mentioned judgments of the Apex Court in support of his contention that if the Law laid down in various judgments is considered, it must be held that the petitioner is an industry carried on under the authority of the Central Govermnent, within the meaning of Section 24 of the Industrial Disputes Act, 1947.
: (1981)ILLJ103SC - Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors etc. : (1988)IILLJ423SC - C. V. Raman v. Management of Bank of India, 1986 I CLR 68 - International Airport Authority of India v. P. K. Srivastava : (1995)IIILLJ15Bom - Bombay Telephone Canteen Employees Association v. The Mahanagar Telephone Nigam Ltd. : (1995)IIILLJ443Bom Air India v. United Labour Union and Others ..
9. Shri Cama, Learned Counsel for the Respondent No. 1 on the other hand contended that the petition is merely against the Interlocutory order and prima-facie findings and as such this Court should not interfere with the same in exercise of its jurisdiction under Article 226 of the Constitution of India. Shri Cama further contended that there was no material on record before the Labour Court to show that the Central Government exercises deep or pervasive control over the functioning of the petitioner and on the contrary there was finding of fact by the Labour Court and the Industrial Court in exercise of its revisional jurisdiction that the only material was that the Central Government was funding the petitioner society which was a society registered under the Societies Registration Act. Shri Cama also relied on the judgment of the Apex Court in : (1969)IILLJ549SC Heavy Engineering Mazdoor Union v. State of Bihar and Ors. and : (1988)ILLJ341SC Tekraj Vasandi K. L. Basandhi v. Union of India & Ors.
10. As regards the first contention about the appropriate Government, it is the contention of the Learned Counsel for the petitioner that from a perusal of the bye-laws of the Tata Memorial Centre, it could be seen that it is the Government of India who solely provides the entire finance to the petitioner society. He has brought to our notice the rules of business framed under Article 77(3) of the Constitution of India. Under the said rules all matters relating to the Tata Memorial Centre, Bombay are under the control of the Department of Atomic Energy, which is a Department of the Government of India. The Learned Counsel points out that the judgment in the case of Heavy Engineering Mazdoor Union (supra) has subsequently been considered by the Apex Court in the case of C. V. Raman (supra). This was of course to meet the point raised on behalf of the counsel for the Respondent No. 1 that the test in interpreting Article 12 of the Constitution as to what is a State within the meaning of said Article and what is appropriate Government under Section 2A of the Industrial Disputes Act, 1947, are different and distinct. In fact in judgment in C. V. Raman's case the Apex Court while considering the said argument has observed in para 11 as under at P 430 :
'It was urged by Learned Counsel for the employees that since Article 12 of the Constitution defining the term 'State' so as to include authorities under the control of the Government of India occurs in Part III of the Constitution of India dealing with fundamental rights, the decisions in the cases dealing with Art. 12 could not be made the basis for the decision that the State Bank of India and the nationalised banks were establishments under the Central Government within the meaning of the Acts referred to above with regard to shops and commercial establishments. Even though that be so, it cannot be gain-said that the salient principles which have been laid down in those cases with regard to the authorities having a corporate structure and exercising autonomy in certain spheres will certainly be useful for determining as to whether the State Bank of India and the nationalised banks are establishments under the Central Government.'
Referring to the judgment in Heavy Engineering Mazdoor Union (supra) the Apex Court observed that 'It may be noticed that even in the case of Heavy Engineering Mazdoor Union (supra) it was observed that the question whether the Corporation is an Agent of the State, would depend upon the facts of each case ..'. Therefore it is apparent from the said judgment that the judgment in Heavy Engineering Mazdoor Union (supra) has been considered and the test and principles applied in Ajay Hasia's case (supra) could be considered for the purpose of deciding whether the petitioner is an Agent or Instrumentality of the State. In fact a Single Judge of this Court in International Air Port Authority of India's (supra) case has considered the judgment in Heavy Engineering Mazdoor Union (supra) and has observed as under :-
'The Court, however, went on to observe that the question whether a Corporation is an agent of the State must depend on the facts of each case. Where from a Statute setting up a Corporation it can easily be identified as the agent of the State, the Corporation may be considered as functioning under the authority of State'.
Thereafter the said judgment in Heavy Engineering Mazdoor Union's case (supra) was also considered by the Division Bench of this Court in Air India (supra) which approved the judgment of the Learned Single Judge reported in United Labour Union & Others v. Union of India and Others (supra). Therefore there is no difficulty whatsoever in applying the test laid down in Ajay Hasia's case (supra) for the purpose of deciding whether the petitioner society would be an 'Industry' carried on under the authority of the Central Government.
11. Shri Cama then pointed out that the petitioner society itself in various matters has accepted the fact that the appropriate Government was the State Government and that at any rate at this interim stage the said stand of the petitioner has great bearing. In fact, our attention has been invited to the order dated November 28, 1980 passed by a Learned Single Judge of this Court in Dr. M. P. Chitnis v. Tata Memorial Centre in Writ Petition No. 1108/80 which order was confirmed by the Division Bench by its order dated December 18, 1980 in Appeal No. 662/80 wherein the finding of the Single Judge that T.M.C. was not a State within the meaning of Article 12 was upheld. Our attention has also been invited to the award passed by the Industrial Court in Reference (ID) No. 888 of 1981 between the petitioner-society and its workmen where the Reference was made by the State Govermnent. Similarly our attention is also invited to the order dated December 2, 1985 passed by the Industrial Court, Maharashtra, Bombay in Application (MRTU) No. 5 of 1985 between the Tata Memorial Hospital Workers Union v. Tata Memorial Centre and Another. By the said order the applicant union therein has been recognised as recognised union under Section 11 of the MRTU and PULP Act. In fact these Judgments have proceeded on the footing that the appropriate Government is the State Government.
The Labour Court has considered and discussed the aspect of appropriate Government in paragraph 30 and 31 of the order and at the interim stage has come to the conclusion that merely because the petitioner-society was funded by the Central Government would not make the Central Government the appropriate Government. The Industrial Court has also considered the question of appropriate Government in paragraph 9 of its judgment. After discussing the reasoning given by the Labour Court, the Industrial Court has observed as under :-
'I am also satisfied that for the present there is no convincing evidence before this Court to immediately jump to the conclusion that the Central Government is the appropriate Government'.
In so far as the contention of the Learned Counsel for the petitioner-society regarding the business rules are concerned, the said rules are for the purpose of allocation of business between the various departments of the Government of India whenever the Government of India has to take a decision. Taking an illustration in so far as the Department of Education is concerned, under item 20 listed UNESCO and Indian National Commission for co-operation with UNESCO. This illustration is being cited for the purpose of pointing out that mere allocation of business under any department would not in any manner answer the issue as raised in the present case as to whether a particular industry is under the control of the Central Government. The business Rules, at the highest, may be of assistance in determining the issue but not conclusive to show that any Institution or Organisation listed under the allocation of business would be part of any department of the Government of India. Under these circumstances since this petition is purely against the prima-facie finding at the interim stage and which has also not been decided as a preliminary issue, there is no warrant to interfere with the said prima facie finding in the Extraordinary Jurisdiction of this Court under Article 226 of the Constitution of India.
12. That takes us to the next point raised on behalf of the petitioner society i.e. that the complaint filed would not be maintainable as the Respondent No. 1 had earlier filed Writ Petition in this Court in respect of the very same subject matter being Writ Petition No. 2536 of 1993 and has withdrawn the same without any liberty. The Learned Counsel for the petitioner argued that as the petition was withdrawn unconditionally without any leave of this Court, the complaint filed should not have been entertained. In support of this contention the Learned Counsel has relied on the judgment of the Apex Court in Municipal Corporation of Delhi v. C. L. Batra reported in 1994 (3) Scale 139.
13. Shri Cama on the other hand contended that the Writ Petition filed before this Court was based on the show cause notice dated October 8, 1993 by which show cause notice the Respondent No. 1 was called upon to show cause by the Disciplinary Authority as to why they should not differ with finding of the Enquiry Officer and the subsequent notice dated November 25, 1993 of the Disciplinary Authority calling upon the Respondent No. 1 to show cause as to why penalty of termination from service should not be imposed. It is the contention of the Learned Counsel that after withdrawal of the petition on January 31, 1994 the Respondent No. 1 appeared before the Disciplinary Authority on February 19, 1994 and even after the personal bearing as he apprehended dismissal from service, he filed the complaint on (sic.) February 21, 1994. It is thus contended that the withdrawal of the petition on January 31, 1994 could not in any manner have precluded the Respondent No. 1 from filing the complaint February 21, 1994 if in law he was so entitled to. In this connection he has relied on the judgment of the Apex Court in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Ors. reported in : [1987]1SCR200 , wherein the Supreme Court has observed as under :
'While the withdrawal of a Writ Petition filed in High Court without permission to file a fresh Writ Petition may not bar other remedies like a suit or a petition under Art. 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Art. 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the Writ Petition when he withdraws it without such permission ..'
Apex Court in the case of Municipal Corporation of Delhi (supra) it is noticed that what the Apex Court was considering was the grant of interim reliefs, is a suit filed after the Writ Petition was withdrawn without liberty to file suit and wherein interim relief had been refused. A perusal of the said judgment does not show that in the event of withdrawal of the Writ Petition without liberty of the Court, a suit or any other statutory remedy available to the petitioner in law, is prohibited. The Apex Court in Sarguja Transport (supra) has observed that on withdrawal of petition in without permission may not bar other remedies like a suit. At any rate we are today basically at the stage of an order passed in the interim application. The question whether the complaint is maintainable or not will also be an issue to be decided in the proceedings. At this stage therefore we are not inclined to accept the submission of the Learned Counsel for the petitioner that the complaint itself was not maintainable on the ground that the Writ Petition had been withdrawn without liberty.
14. That takes us to the 3rd contention i.e. that there was no prima facie material whatsoever before the Labour Court for granting interim relief as the Respondent No. 1 has failed to make out a case that his case falls within any of the items in item No. 1 of Schedule IV of the MRTU and PULP Act. It was contended that only those unfair labour practices which are set out in Schedule IV of the MRTU and PULP Act in the matter of dismissal or discharge could be subject matter of the complaint under the MRTU and PULP Act. It was then contended that since the Respondent No. 1 has failed to make out a case no interim reliefs could have been granted. On behalf of the 1st respondent, the learned Counsel contended that the Respondent No. 1 approached the Court alleging violation of items 1(a), (b), (d), (e), (f) and (g) of Schedule IV of the MRTU and PULP Act. It was further contended that the Labour Court after considering all the material on record at the interim stage had only come to the prima facie conclusion that there was unfair labour practice practiced by the petitioner. This being a finding of fact and the said finding of fact having not been interfered with by the Industrial Court in revision, this Court should not exercise its jurisdiction under Article 226 of the Constitution of India as the finding was not shocking or perverse.
15. Prima facie form the material on record, it is seen that the Respondent No. 1 was charge sheeted for having operated a patient by swne Mr. Tiwari at Dey Nursing Home on March 14, 1992. In the charge sheet as many as 5 charges were listed against the 1st respondent. Charge No. 1 pertains to operation at Dev Nursing Home which was not recognised Hospital/Nursing Home by Tata Memorial Hospital, charge No. 2 pertains to the act of Respondent No. 1 falsely stating that there was no bed available at the petitioner's hospital and operating at Dev Nursing Home; charge No. 3 pertains to issue of cash receipt of Rs. 10,000/- signed by the Respondent No. 1 showing the address of the petitioner and also putting their rubber stamp i.e. of the petitioner society and thereby creating an impression that the said receipt is an official receipt of Tata Memorial Hospital; charge No. 4 pertains to the issue of receipt of Rs. 10,000/- to Shri Tiwari wherein it was falsely certified that the operation charges are at par with the Tata Memorial Centre and Cancer Research Institute rates and that the minimum rates in the petitioner's hospital was to the extent aof only Rs. 7000/- and charge No. 5 was that the respondent No. 1 had falsely and with ulterior intention not credited the amount received by him to the petitioner as 'income earned from outside' and the said amount was deposited only on November 17, 1992 after receipt of letter from the Petitioner dated November 13, 1992.
Whilst giving his finding on all the charges the Enquiry Officer has observed in his report as under :-
'The management did not produce any key material witnesses. It adopted the strategy of proving the case through cross-examination of defence witnesses'.
While considering paragraph 3(c) of the circular dated April 24, 1986, the Enquiry Officer has observed as under :-
'Is this an exception or a rule cannot be commented upon as the management did not provide information with reference to other doctors on the grounds of sensitivity'.
The Enquiry Officer based on the material and for reasons recorded exonerated the lst respondent of the charges (a), (b), (c) and (e) and in so far as the charge No. (d) is concerned, the Enquiry Officer held that in signing the receipt and falsely certifying reimbursement claims and the essentiality certificate, Dr. Sharma committed administrative impropriety.
The Labour Court has considered the argument on behalf of Ist respondent in paragraphs 17 and 18 of the judgment. the arguments advanced on behalf of Ist respondent before the Labour Court are that full and complete opportunity was not given to the complainant to enable him to defend himself. the complainant had been refused access to vital information on the ground of sensitivity; and the complainant had been refused the opportunity to seek clarification from the witnesses who had been withdrawn at the eleventh hour by the petitioner. It was further stated that the charge sheet was motivated by Dr. P. S. Desai, the Director of the hospital; that the evidence on record and the findings of the Enquiry Officer showed that the charges against the Respondent No. 1 were not proved; that the Disciplinary Authority had.not perused the evidences on record before coming to the prima facie conclusion that the Enquiry Officer had erred in respect of his findings on charges No. 4 and 5 and it was lastly contended that the Respondent No. 1 had been victimised and that in view of all this the petitioner-society had committed unfair labour practices listed under items 1(a), (b), (d), (e), (f) and (g), of Schedule IV of the MRTU and PULP Act.
The question of prima facie case was considered by the Labour Court in paragraph 32 of the judgment.
16. In so far as charge No. 4 is concerned the Labour Court came to the conclusion that the administrative propriety was never part and parcel of the original charge sheet dated December 12, 1992 and hence it could never have been the foundation for the Disciplinary Authority to propose the punishment of dismissal. The Disciplinary Authority in following the said course cannot be permitted to penalise the complainant for the alleged misconduct for which he was never charged and against which he had no opportunity to make any representation. The Labour Court further held that the Enquiry Officer had referred to about the administrative impropriety on page 90 of his finding and had clearly come to the conclusion that the same does not constitute a listed misconduct and that what was not listed misconduct could not ex-postfacto be determined to be a misconduct.
17. In so far as charge No. 5 is concerned, the Labour Court has come to the conclusion that no time frame had been fixed by the petitioner hospital within which doctors must deposit the amount earned by them outside the hospital. In the past also the complainant was allowed to deposit the amounts without any specification as to the date or time. In these circumstances it could not be concluded that the said factor of time for deposit had become so important as to constitute a misconduct; that the Enquiry Officer gave finding that the Respondent No. 1 was not guilty of the said charge and the Disciplinary Authority without there being any contrary material on record, could not have arrived at different conclusion and that the opinion of the Disciplinary Authority would be purely his own personal view and such view was unsupported by the evidence on record.
18. In view of the above the Labour Court came to the conclusion that the complainant was picked up and chosen for charge of such offence and that after having been exonerated, the disciplinary authority has taken upon itself to continue the victimisation by adopting the procedure which is without foundation in law and as such in the opinion of the Labour Court, the same amounts to unfair labour practice or a colourable exercise of powers. The Labour Court also came to the conclusion that the penalty proposed was grossly disproportionate to the misconduct and, therefore, again it amounted to unfair labour practice under item 1(g) of Schedule IV of the MRTU and PULP Act.
19. The Industrial Court considering the matter paragraph 11 of his judgment has observed that after going through the judgment of the Labour Court, it did not find any illegality committed by the Labour Court in coming to the said conclusion and prima facie, there was sufficient evidence before the Labour Court to come to the said conclusion. The Industrial Court also observed that the Labour Court had also on page 39 of its judgment, come to the conclusion that the question of late payment is not amounting to misconduct. The said finding of the Labour Court has not been interfered with by the Industrial Court.
20. Perusing the judgment of the Labour Court we must express our unhappiness in the manner in which the Labour Court has arrived at its finding without discussing the reasons for arriving at the conclusions that the complainant was picked up and chosen for charge sheet and that the disciplinary authority had taken upon itself to continue the victimisation by following the procedure which was without any foundation of law and consequently it was a colourable exercise of power amounting to unfair labour practices and that the penalty proposed is grossly disproportionate to the misconduct.
Before us the only question is with regard to the charge sheet dated December 12, 1992 where the Respondent No. 1 has been charged for operating at Dev Nursing Home. The Enquiry Officer has exonerated the Respondent No. 1 of all the charges except charge No. 4 where the Enquiry Officer had come to the conclusion that the Respondent No. 1 had committed administrative impropriety. The disciplinary authority in its show cause notice had concurred with the finding of the Enquiry Officer and had accepted the findings in so far as charges Nos. 1, 2 and 3 are concerned but differed in so far as the charge Nos. 4 and 5 are concerned.
The Labour Court in so far as the charge No. 4 is concerned, has arrived at the conclusion that the disciplinary authority had arrived at the conclusion that the Respondent No. 1 was guilty of the charge, when in fact the Respondent No. 1 was held guilty of a charge to which he had no opportunity to defend i.e. charge of falsely certifying the reimbursement claim and essentiality certificate as there was no charge that the Respondent No. 1 had falsely certified reimbursement claims and the essentiality Certificate. The charge as originally framed was that the Respondent No. 1 had certified that the operation charges which had been charged were at par with the charges of Tata Memorial Hospital. Further that the Enquiry Officer had arrived at the conclusion that the same was an administrative impropriety, which was never a charge and the Respondent No. 1 had no opportunity of meeting the same. The Labour Court thereafter has considered the letter date August 16, 1993 where the Administrative Officer has expressly stated that such certificates can be issued by Doctors operating outside and that the Hospital was not strictly concerned with the same and as such the same cannot also amount to an administrative impropriety.
In so far as charge No. 5 is concerned, the charge was that the Respondent No. 1 had falsely and with ulterior intention not credited the amount received. At this juncture it may only be observed that it has come on record that the Respondent No. 1 had received the money but had deposited the same with the petitioner hospital after nearly 8 months of the issue of receipt. It is also seen that Respondent No. 1 had immediately on receipt of letter dated November 13, 1992 deposited the amount on November 17, 1992 and further as could be seen from the finding of the Enquiry Officer that Respondent No. 1 had earlier deposited money from outside operations without showing the date and time and the petitioner had accepted the money without any specification as to date and time. The Labour Court under the circumstances has prima facie observed that the factor of time deposit was not so important as to constitute misconduct. The findings of the Labour Court as to time may not be sustainable as the charge was that the Respondent No. 1 though having received the money failed to deposit the same. Thus, at any rate, if considered as a misconduct, can it be prima facie said that the finding of the Labour Court that the punishment of dismissal was disproportionate to the misconduct proved be said to be perverse. Though the analysis of material on record by the Labour Court may not be very happy, nevertheless in paragraphs 17 and 18 of the judgment the Labour Court has summed up various contentions taken by the 1st respondent in the manner of holding enquiry and further has also observed as to whether late payment may amount to misconduct. Those are prima facie findings. The findings in so far as the disproportionate punishment is concerned as such prima facie cannot be said to be perverse and so shocking so as to warrant interference with, by this court. So is the case of the prima facie, conclusion of the Industrial Court. Considering the above we find no reason to interfere with the prima facie findings at the interim stage by the Labour Court, as confirmed by the Industrial Court in revision, that the petitioner has made out a prima facie case under item 1(g) of Schedule IV, namely, that the punishment is disproportionate to the nature of misconduct alleged and/or proved. Though there was no specific pleading in the complaint that the punishment was disproportionate, the respondent by letter dated December 6, 1993, which is an annexure to the complaint, had alleged that the action of the disciplinary authority was harsh.
21. The next contention urged on behalf of the petitioner is that the Labour Court has stayed the order of suspension; that the suspension by itself is not listed as a misconduct under item(i) of Schedule IV and as such both the Labour Court and the Industrial Court exercised jurisdiction not vested in them and consequently the order to the extent of staying the order of suspension should be set aside. The Learned Counsel for the petitioner has also relied on the judgment of Apex Court in the case of State of Orissa v. Bimal Kumar Mohanty reported in : (1995)ILLJ568SC . In the said judgment the Apex Court has observed as under at P 573 :
'Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc ..'
22. The learned Counsel for Respondent No. 1 on the other hand contended that in the present case the inquiry had been completed. Therefore, the question of Respondent No. 1 interfering in any manner in the conduct of the inquiry and/or tampering with the witnesses does not arise. Moreover there is no allegation regarding the performance and the work of the Respondent No. 1 as a Surgeon and on the contrary an act preventing the Surgeon from operating will have an adverse effect on his surgical skill. Once the Labour Court had come to the conclusion that the punishment of dismissal was disproportionate to the misconduct alleged or proved, the question of continuing the suspension order would not arise, as otherwise this by itself would amount to a punishment; that the Labour Court had jurisdiction to interfere in the matter of suspension as much as the Labour Court had jurisdiction to prompt or interfere in the disciplinary proceedings which can result in dismissal or discharge of an employee; that the suspension being part of the disciplinary proceedings, therefore the same could be stayed. In this connection the Apex Court in the case of Hindustan Lever Ltd. v. Ashok Vishu Kate & Ors. reported in : (1996)ILLJ899SC which arose out of the judgment of this Court in Ashok Vishu Kate's case (supra), in paragraph 18 has observed as under at P 906 :
'.. If an employee can make out a strong prima facie case for interdiction of such a process, he can legitimately invoke the jurisdiction of the Labour Court for preventing such an unfair labour practice from getting fructified or completed. In this connection, it is necessary to note that the general unfair labour practice on the part of the employers as mentioned in Item 1 of Schedule IV pertains to different types of objectionable actions based on grounds which are indicative of unfair labour practices and any action based on grounds with a view to discharge or dismiss an employee is considered by the Act to be an unfair labour practice on the part of the employer'
Then in paragraph 24 of the said judgment it is observed as under at P 907 :
'Therefore on the express language of Item 1 of Schedule IV the general unfair labour practice on the part of the employer 'to' discharge or dismiss an employee on any of the listed grounds would include both the final act of discharge or dismissal of employee on any of these grounds as well as any penultimate step taken towards that destination and object by starting the process of disciplinary enquiry on giving the charge sheet to the employee and/or suspending an employee pending or in contemplation of such enquiry and all a further steps during such departmental enquiry about which a complaint can be made on permissible grounds'.
23. Thus once it is held that the Labour Court can even in a case of apprehended or threatened acts of dismissal or discharge, have jurisdiction to entertain a complaint and on the express reasons given by the Apex Court as also by the Division Bench of this Court, an injunction can be granted restraining the employer from committing any unfair labour practices, which would include restraining employer from taking any further steps towards that end, the restraint would also include restraining the employer in the matter of suspension. We are therefore, of the view that if the employer makes out a strong prima facie case the Tribunal/Labour court has jurisdiction to stay the order of suspension. In the present case at this stage we have no reason to interfere with the finding of the Labour Court, that the Respondent No. 1 has made out a strong prima facie case. The enquiry proceedings are completed and, therefore, the question of the employee interfering with the enquiry no longer subsists and as there is a prima facie finding that the punishment of dismissal is disproportionate there is no need whatsoever to interfere with the finding of the Labour Court staying the suspension as also order of the Industrial Court. No irreparable loss would be occasioned to the petitioner, if the interim relief granted is upheld and on the contrary if the Respondent No. 1 is prevented from carrying out operations, may adversely affect his skill as a Surgeon. The balance of convenience is, therefore, in favour of the Respondent No. 1.
24. That takes us to the next point contended by the Learned Counsel for the petitioner i.e. the Labour Court could not have stayed the disciplinary proceedings in respect of other charge sheets which were not the subject matter of the complaint before him. It is the contention of the Learned Counsel for the petitioner that the Labour Court exercised jurisdiction not vested in it in staying other disciplinary proceedings in respect of other charge sheets levelled against the Respondent No. 1 and that the Labour Court erred in arriving at the conclusion that the present charge sheet and the other chargesheets listed same misconduct, which finding in fact was contrary to the record, if one looks to the charge sheets which are on record.
25. The learned Counsel for the Respondent No. 1 contended that all the charges pertain to the deposit of money after the time gap and/or what the disciplinary authority has contended not to be a reasonable period. Our attention is invited to Section 32 of the MRTU and PULP Act. Our attention is also invited to the judgment of this Court in Deepak Industries v. Engineering & Metal Workers Union & Anr. reported in 1986 (2) CLR 383. In the said judgment the learned single Judge of this Court granted interim reliefs based on an application of the respondent. It was contended, based on the said judgment, that the Labour Court would thus have jurisdiction also to stay other proceedings even if they are not part of the charge sheet in respect of which the unfair labour practice is alleged.
26. Besides the present charge sheet, there are three other charge sheets dated February 25, 1993. In the first charge sheet there are three charges which are as under :-
1. Not crediting the income earned by the 1st respondent to the Tata Memorial Hospital except Rs. 2000/- in the case of Mr. Khandelwal on December 7, 1992 i.e. after nearly six months.
2. Operating Mr. L. Ramakrishnan in Dev Nursing Home which is not recognised by the Tata Memorial Hospital.
3. In the case of Mr. Khandelwal even though Respondent No. 1 had received Rs. 6000/- towards operation charges, he remitted only Rs. 2000/- and that too on December 7, 1992 i.e. after nearly 6 months of the operation.
In the next charge sheet again dated February 25, 1993 the charges are that the Respondent No. 1 operated 20 patients outside Tata Memorial Hospital and has not credited the professional charge received by him to Tata Memorial Hospital. Under the third charge sheet the charges are as under :-
1. That the Respondent No. 1 had issued false certificate stating that one Mrs. Guru was admitted in Tata Memorial Hospital Bombay on April 23, 1992 and relieved on May 21, 1992. Surgical operation was undertaken on May 9, 1992 after all clinical tests implying that the same was done in TMH.
2. The income earned by the Respondent No. 1 in performing the operation has not been credited to TMH as required under para 3(c) of the circular No. TMC-AD-44/86 dated April 24, 1986 though 7 months have lapsed after the operation.
27. Ex-facie a bare perusal of the charges in the aforesaid charge sheets would show that though there are some charges pertaining to late remission of fees, there are other charges which are distinct and different from the charges which were before the Labour Court. The question is whether the Labour Court in such eventuality, when it had before it a complaint wherein unfair labour practices were alleged in respect of one incident, can stay the proceedings in respect of other charges not before it and whether Section 32 of the MRTU and PULP Act can in such an event come to the aid of Respondent No. 1. A bare look at Section 32 would show that the proceedings must arise from the matter before the Labour Court. It cannot be in respect of matters which are not in issue before the Labour Court. If the interpretation sought to be argued on behalf of the Respondent No. 1 is accepted then a Labour Court would be, assuming jurisdiction of a complaint where the charge though falls under any item under clause (1) of Schedule IV may not result in dismissal or discharge. This cannot be the interpretation to be placed on Section 32 nor does the judgment of the learned single Judge of this Court reflect this position. In the case of Deepak Industries (supra) the Employer had moved the Industrial Court on complaint that the Union had indulged in unfair labour practices to start and make successful an illegal strike. Interim relief was also prayed, and an ad interim relief was granted on July 13, 1993 which was thereafter confirmed. Between July 21, 1983 and September 30, 1983 the employer charge sheeted several workers, who were also suspended. It is then that the Union moved for interim relief in the same proceedings to restrain holding of the enquiry till the disposal of the complaint. The employer objected to the swne on the grounds first that interim relief could be sought only on a complaint moved by the party seeking interim relief and the subject matter of the complaint and the domestic enquiry were basically dissimilar and if there was some overlapping, that was irrelevant and of no consequence. In fact the order of the Court was impugned before this Court which stayed the order and permitted holding of the domestic enquiry subject to the contention that the decision given was not to be implemented without the specific order of this Court. This Court answered the first contention, namely, that the word 'proceedings' under Section 32 could not be read down to mean the complaint only. On merits the Court found that the complaint and the charge sheet start from the same premises viz. That what took place on June 24, 1993 was an illegal strike. The facts of that case and the present case are poles apart. In our considered opinion, therefore, the Labour Court and Industrial Court acted without jurisdiction in staying the proceedings in respect of other charge sheets when separate and distinct charges had been levelled against the Respondent No. 1. Therefore the findings and orders of both the Labour Court as well as of the Industrial Court, in so far as staying the act of the petitioner in pursuing with other disciplinary proceedings, has to be set aside.
28. That brings us to the Writ Petition No. 767 of 1995. This petition arises from an order dated March 27, 1995 passed by the Labour Court whereby the petitioner had been directed to produce documents listed in rejoinder at Exh. U-10 of the proceedings before the Labour Court. An application was moved by the Respondent No. 1 that he should be given details of all practicing doctors attached to the petitioner hospital carrying out surgeries in outside hospitals. The information which was asked for was as follows :-
'Dates on which the surgeries were carried out, the dates on which the professional income had been actually received by them and the respective dates on which the said income had been credited to the petitioner-hospital for the period April 1986 to March 1994, in terms of para 3(c) of the circular dated April 24, 1986;
No name of any doctors from whom such information was sought for was specified. Thereafter subsequent to the reply filed by the petitioner, rejoinder was filed wherein the names of doctors in respect of whom information was required was set out. The Labour Court after hearing both sides was pleased to pass the impugned order in this petition.
29. Shri Singhvi, Learned Counsel for the petitioner has attacked the order of the Labour Court on the ground that the application for documents is filed by the Respondent No. 1 was vague and in fact was a roving enquiry; that as such the Labour Court erred in granting the Application made by Respondent No. 1. Shri Singhvi relied upon the judgment of the Division Bench of this Court in 20th Century Fox Corp. (India) (P) Ltd. v. F. H. Lala & Ors. reported in 1974 II LLJ 1956.
30. Shri Cama, Learned Counsel for the Respondent No. 1 on the other hand contended that the Respondent No. 1 in fact has sought documents from the petitioner even at the stage of inquiry, that the Enquiry Officer passed an order dated June 25, 1993 calling upon the petitioner to provide the information and documents for the reasons stated therein; that subsequent to the said order by their letter dated July 2, 1993, the petitioner had refused to provide the information; that on account of failure to get the said documents the Respondent No. 1 had been handicapped in setting out his case and consequentially great prejudice had been caused to him; that even before the Labour Court the said documents are not made available, resulting into denial of justice to the Respondent No. 1 in as much as it will not be possible for him to prove that in the same Institute there are other doctors who are also carrying on operations in outside the hospital and not depositing the amount within the time frame as set out in the above circular.
31. The complaint before the Labour Court is of unfair labour practices qua item No. 1 of Schedule IV of the MRTU and PULP Act. The action proposed on the Respondent No. 1 is based on the domestic enquiry conducted by the petitioner and the action to be taken thereto. Therefore what is presently before the Labour Court is action proposed to be taken by the petitioner based on the report of the Enquiry Officer. The question whether the inquiry before the Enquiry Officer was fair and proper is yet to be decided. If the documents have been denied by the petitioner, and they were of crucial importance it will result in violation of principles of natural justice and at the highest may amount to unfair labour practice which would result in setting aside of the inquiry and/or punishment in terms of item 1 of Schedule IV of the MRTU and PULP Act. In fact a Division Bench of this Court in the case of The Cosmos India Rubber Pvt. Ltd. v. Mumbai Mazdoor Sabha & Ors. reported in 89 CLR 432, was considering a case arising out of an order of the Labour Court holding that the domestic inquiry was vitiated as it was held or conducted against the principles of natural justice and thereafter allowed an opportunity to the petitioner to lead evidence on merits. The Division Bench upheld the contentions that the Labour Court had jurisdiction to go into the question whether the domestic inquiry could be challenged on the ground of violation of principles of natural justice and permitted the employer to lead evidence before it. The Division Bench of this Court has held that the Labour Court can go into the issue as to whether the domestic inquiry was vitiated on account of breach of the principles of natural justice. In the present case this stage has yet to be reached. That the enquiry was conducted in violation of the principles of natural justice is also a part of the complaint. What is sought to be argued for and on behalf of 1st Respondent is that by denying the documents to the Respondent No. 1 on the ground of sensitivity, the Respondent No. 1 has been denied the opportunity of putting forward his case of victimization and is praying that it is not a misconduct. The respondent No. 1 first and foremost had raised the issue of these documents before the Enquiry Officer and these documents were denied to him. Whether the denial of those documents amounts to vitiating the enquiry will be an issue which will have to be gone into by the Labour Court. Therefore at the highest refusal to give documents can result in the inquiry being said to be unfair and in breach of principles of natural justice.
32. It may also be mentioned that Shri Singhvi has made out a strong primafacie case that there cannot be fishing or roving enquiry. It is incumbent upon the Respondent No. 1 to make out a strong case for production of documents. Merely calling for the records or setting out that some doctors have, indulged in such practice without specifying particulars would be too vague to call on the petitioner to produce documents apart from the requirement that a party has to make out a case of relevancy of the documents. In these circumstances it is clear that when the application was moved the application did not meet with the requirements as aforestated. It is only in the rejoinder that some names were stated or sought to be given. The Labour Court therefore erred in granting the application of the Respondent No. 1. Hence the order of the Labour Court on that count also has to be set aside.
33. It may also by mentioned that the petitioner in this petition has taken out a notice of motion No. 253 of 1995 challenging the application moved by the Respondent No. 1 for directions to issue witness summons to Dr. Desai, Shri Cama, Learned Counsel for the Respondent No. 1 at this stage mentions that presently he does not want to press the said application and that the liberty may be reserved to him to move such on application if and when a need arises. It is needless to say that the Respondent No. 1 will have such liberty to move such on application before the Labour Court if and when required and the petitioner will be at liberty to raise all available defences. Hence the notice of motion stands disposed of as not pressed.
34. In view of the above, following order is passed :
Writ Petition No. 1749 of 1994 is partly allowed to the extent that the order of 2nd and 3rd respondents injuncting the petitioner-society from initiating proceeding with the enquiry in respect to the three charge sheets dated February 25, 1993 is quashed and set aside. The interim order dated August 16, 1994 directing suspension to continue, stands vacated.
In Writ Petition No. 767 of 1995 Rule is made absolute in terms of prayer clause (a). Notice of motion No. 253 of 1995 in this petition stands disposed of as not pressed.
In the circumstances of the case there shall be no order as to costs in both the petitions.
35. At this stage Shri Singhvi, Learned Counsel for the petitioner, requests for status quo as far as the order of suspension is concerned in Writ Petition No. 1749 of 1994 with a view to challenging the same before the Apex Court. The said request is strongly opposed by the Learned Counsel for the Respondent No. 1. We find the request of the Learned Counsel for the petitioner reasonable and, hence, eight weeks time as sought, for is granted to enable the petitioner to approach the Apex Court.
36. Certified copy expedited.