Judgment
S.H. Kapadia, J.
1. By this Writ Petition, Petitioner seeks to challenge the Award of the Labour Court in Reference (IDA) No. 136 of 1986.
2. The facts giving rise to the petition, briefly, are as follows:
3. On June 15, 1983, at 9.30 A.M., Bangera, a driver (since deceased) took two Supervisors and four Operators in the Company's vehicle to Sunflower Building at Cuffe Parade. He, thereafter, proceeded to Holiday Camp, Colaba, and returned back to Sunflower Building after dropping the Supervisors and two operators. On return, he parked the vehicle near Sunflower Building to pick up the supervisors and operators who were carrying out household work at the premises of the client of the Company in the said Building. While Bangera was waiting, the charge-sheeted employees approached the vehicle and started abusing (sic) the driver in filthy and abusive language. Thereafter, Bangera was abused (sic) and assaulted by four workmen, namely, B.P. Dubey, G.K. Devadiga, S. Devadiga and Manohar Karambale, the charge-sheeted employees. The charge-sheeted employees further tried to puncture the tyres. At this stage, the petitioner fearing further violence, started the vehicle and drove to Head Office to report the incident. Accordingly, the charge-sheeted employees were duly served with the charge-sheet. Thereafter, a domestic inquiry was held and pursuant to the domestic inquiry, the services of the employees stood terminated vide letter dated May 25, 1985. Being aggrieved by the order of termination, the charge-sheeted employees preferred Reference (IDA) No. 136 of 1986 before the Labour Court. The Labour Court gave a preliminary finding that the domestic inquiry stood vitiated for two reasons, namely, non-payment of adequate subsistence allowance pending domestic inquiry and refusal of opportunity to lead further defence evidence. Under the circumstances, the inquiry came to be set aside. However, Company was given an opportunity to adduce the evidence. In the meantime, Bangera died in June 1991. In the circumstances, the Company submitted an application Exhibit D-27, stating that the key witness had expired in June, 1991 and other eye witness Vinodkumar had resigned. Accordingly, the Company relied upon the inquiry proceedings in support of their charges. This was opposed by the Union. On going through the oral evidence adduced before the Labour Court and the documents produced by the Company including the statements recorded earlier before the Inquiry Officer, the Labour Court found that the evidence of Vinayak Nabar on behalf of the Company was reliable inasmuch as he has deposed that there was a strike for three months in 1983; that 150 workmen participated in the strike; that the members of Union resorted to violence; that on June 15, 1983 when Nabar was on duty, Bangera had taken the staff in the Company's tempo to Sunflower Building; that the witness was knowing about the incident which took place at 11.15 A.M. on June 15, 1983 and that one of the charge-sheeted employees opened the door of the tempo and assaulted Bangera and the other workmen were instigating in the matter of assaulting Bangera; that Bangera started the tempo and ran away to report the incident to Fountain Office from where he was taken to Colaba Police Station and to the Hospital where he was treated. Mr. Nabar has categorically deposed that he came to know about the incident from Bangera and that the complaint lodged with the Police and with the Management had narrated the said incident. Mr. Nabar has further stated that the incident was also witnessed by Vinodkumar, Supervisor, who since then has resigned. Shri Nabar was also cross-examined by the Union's representative. The Labour Court found, however, that the witness was not shaken. The next witness examined by the Company was Shri Sunil, who has deposed that in 1983 he was an Administrative Manager; that on June 15, 1983 he had come to the Office at 9.00 A.M. when he received a telephone call from Shri Nabar that he had seen a large number of workers raising slogans; that he again received telephone call from Shri Nabar informing him that Bangera had been injured on account of the assault; that, thereafter, Shri Sunil went to see Bangera along with one Pereira and that at that stage Bangera, in fact, stated to Sunil that his tempo was parked near Sunflower Building at Cuffe Parade when suddenly four workers approached Bangera and started abusing him, if he continued to work during the strike. According to evidence of Sunil he was further told by Bangera that Govind, the charge-sheeted workman had opened the door and had assaulted him on his eye and chest and that the three others punctured the tyres of the tempo. He has further deposed that Shri Pereira took the injured to the Colaba Police Station and, thereafter, Bangera was sent to St. George Hospital. Shri Sunil, has further deposed that on the next day, Bangera gave a written complaint. This complaint was produced before the Court. This witness was also cross-examined by the Union. In his cross-examination, Sunil admitted that he had not personally seen the incident. However, in his cross-examination, he has deposed that he had not falsely implicated the charge-sheeted workmen. At this stage, it may be mentioned that no evidence in rebuttal was led before the Labour Court by the Union. No reason has been given as to why the Union did not lead evidence in rebuttal. In the circumstances, upon appreciation of the oral evidence of the above two witnesses, the Labour Court found that the said two witnesses had deposed what they had seen and heard at the relevant time. The Labour Court also relied upon the complaint received from Bangera. The said complaint was taken on record. The Labour Court also relied upon the Medical Certificate of the injured Bangera issued by the Hospital. The Labour Court found that on account of death of Bangera, the Company could not produce the said witness. However, in the facts and circumstances of the case, on the basis of evidence of the above two witnesses, the Labour Court found the charges to have been proved. In the circumstances, the Reference came to be dismissed.
4. At this stage, it may be mentioned that the Labour Court concluded the Award by awarding to the charge-sheeted workmen compensation of Rs. 1 lakh each on the ground that although the misconduct stood proved, the punishment was disproportionate. This part of the award has not been challenged by the Company. One of the charge-sheeted employees, namely, S. Devadiga has accepted the said amount. The others have refused to accept the same, although the Company offered the amount pursuant to the Award passed by the Labour Court. Therefore, present Writ Petition has been filed by the Petitioner-Union on behalf of three of the four employees, namely, Shri B.P. Dubey, Shri G.K. Devadiga and Shri M.R. Karambale.
5. Mr. Palshikar, the learned Advocate appearing on behalf of the Petitioner-Union contended that vide judgment dated December 5, 1984, the Additional Chief Metropolitan Magistrate, on merits, acquitted Govind Devadiga and Manohar Karambale of the charges of assault. Mr. Palshikar contended that in view of the judgment of the Supreme Court in the case of Sulekh Chand and Salek Chand v. Commissioner of Police and Ors. reported in : 1994(4)SCALE707 , once the acquittal is on merits the delinquent would be entitled to reinstatement and the need for departmental inquiry stood obviated. Mr. Palshikar also relied upon the judgment of this Court in the case of Chandrakant Raoji Gaonkar v. Bombay Port Trust and Ors. reported in : (1996)IIILLJ558Bom . He submitted that the effect of acquittal, on merits, in criminal case warrants dropping of the disciplinary inquiry. Mr. Palshikar accordingly contended that, in the present matter, reinstatement ought to have been granted by the Labour Court. I do not find any merit in the above contention. In the present matter, the charge-sheet has been issued by the Company under Standing Order 24(K) and 24(1) which reads as follows:
'S.O. 24(K) 'drunkenness, riotous, disorderly or indecent behaviour on the premises of the establishment'.
(1) 'Commission of any act subversive of discipline or good behaviour on the premises of the establishment'
Whereas the Charge-sheet in the criminal case proceeded on the alleged offence of assault. In the circumstances, the above two judgments cited by Shri Palshikar have no application to the facts of the present case. In the case of Chandrakant Raoji Gaonkar (Supra), this Court found that the charges, grounds and the evidence in criminal and disciplinary inquiry were common. That is not the case herein and, hence, there is no merit in the submissions advanced by Shri Palshikar.
6. Mr. Palshikar next contended that theLabour Court having come to the conclusionthat the domestic inquiry was defective, couldhave relied upon the evidence recorded earlierand the evidence led before the Labour Courtby the Company, after the inquiry was foundto be defective, was purely hearsay evidenceand, therefore, the Labour Court erred indismissing the Reference. As against thisargument of Shri Palshikar, Mr. C.U. Singh,the learned counsel appearing on behalf of theCompany vehemently submitted that Bangeradied during the pendency of the Reference inJune, 1991. He contended that the inquiry was set aside by the Labour Court not on the ground of any defect. He further contended that the inquiry findings were set aside for nonpayment of certain requisite amounts of subsistence allowance during the pendency of the domestic inquiry. He, therefore, submitted that, on the facts of the present case, particularly where the victim died during the pendency of the Reference but after his statement came to be recorded by the Inquiry Officer, it cannot be treated as hearsay evidence and that it was always open to the Labour Court, in subsequent proceedings, to rely upon the statement made on oath before the Inquiry Officer in departmental proceedings. He further contended that even the written complaint dated June 16, 1983 addressed by Bangera to the Operation Manager shows that Bangera had seen the four charge-sheeted workmen. That they had abused Bangera and that he was also assaulted by one of them whereas others were encouraging him to do so. Similarly, the Hospital report proves that Bangera was assaulted near his left eye. Mr. Singh further contended that, in the present case, since the victim had died during the pendency of the Reference, the Company could rely upon the previous proceedings. He submitted that, in the present matter, it cannot be stated that the evidence of the two witnesses before the Labour Court, namely, Shri Nabar and Shri Sunil Surkund was hearsay evidence. He further contended that, in any event, it has been held by the Supreme Court in number of judgments that the hearsay evidence can be relied upon in appropriate cases provided such evidence is credible. Mr. Singh further contended that apart from the oral evidence, the documentary evidence also shows that Bangera was abused and assaulted by the charge-sheeted employees. He further contended that in domestic inquiries, strict rules of evidence do not apply and, therefore, if the Court is satisfied that fair play, in action, has been maintained and that the finding given by the Labour Court/Tribunal is based on some evidence then this Court under Article 226 should not interfere.
7. I find merit in the arguments advanced on behalf of the Company. The evidence of the two witnesses before the Labour Court proves that the statements were made before the Management by Bangera. The evidence of two witnesses of the Company before the Labour Court proves that Bangera had made a complaint to the Management. Documentary evidence proves that Bangera was assaulted. Documentary evidence proves that the complaint was made by Bangera to the Management in which Bangera did allege assault and abuse on the part of the charge-sheeted employees. As against this evidence, none of the charge-sheeted employees stepped into the witness box. There is no evidence contradicting the contents of the complaint made by Bangera to the Company. There is no evidence in rebuttal to the serious allegations made against the workmen. No reason has been given for the workmen not stepping into the witness box. In the facts and circumstances of the case, therefore, this Court is not inclined to interfere under Article 226 of the Constitution. In the present matter, the findings of the Labour Court is based on the evidence of the two witnesses supported by the documentary evidence and, in the circumstances, no interference is called for under Article 226 of the Constitution.
8. Before concluding this matter, it may be mentioned that, under the impugned award, the Labour Court has passed money decree against the Company. As stated hereinabove, one of the four employees, namely, S. Devadiga accepted the decretal amount whereas the remaining three employees, whose names have been given hereinabove, challenged the award. They refused to accept the money decree. Learned Counsel for the Company submitted that since the three employees were offered decretal amount and they refused to accept the same on the ground that they had filed writ petition, the Company was not bound to pay interest in respect of the period from the date of the petition till payment. I do not find any merit in the said contention. Under the impugned award, a money decree has been passed against the three workmen. It is true that they refused to accept the amount on the ground that above writ petition was pending in this Court. Nonetheless the fact remains that the Company has not challenged the money decree. The fact remains that the Company has utilised the said amount without depositing the same in Court. Since the Company has used the amount from the date of the finding of the writ petition, I direct the Company to pay to the three workmen decretal awarded by the Labour Court with simple interest at 13% per annum from December 17, 1997 till payment.
9. Subject to above, writ petition is dismissed. Rule is discharged with no order as to costs.
CC. expedited.