Subhash Ramchandra Dumbre Vs. Maharashtra State Co-operative Agricultural and Rural Development Bank Ltd. and ors. - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - perusal of the judgment of the industrial court clearly reveals that the industrial court had rightly noticed that the finding of the labour court was patently perverse.orderv.m. kanade, j.1. by this petition, the petitioner is challenging the judgment and order passed by the industrial court in revision application (ulp) no. 24 of 1995. by the said judgment and order dated 7th february, 1996, the industrial court was pleased to allow the revision application filed by the respondent herein and the set aside the order passed by the labour court in complaint (ulp) no. 191 of 1987 whereby the labour court had directed them to reinstate the complainant to his original post with continuity of service and back wages.2. brief facts in nutshell are that the petitioner was employed by respondent no. 1. his services, however, were terminated by order dated 25th september, 1985 on the ground of his absence from duty. the petitioner, therefore, filed a complaint of unfair labour practices. the labour court allowed the complaint and held that no inquiry had been held by the respondent into the misconduct of absence from duty and no opportunity was given to the petitioner to defend himself and as such, therefore, the order of termination was illegal. the labour court, however, held that the bank did not get the petitioner examined by a doctor. the reason which was given for termination of service was absence from duty for 71 days during the period from 1.7.84 to 11.10.84 and also for the absence from duty for the period from 1989-80 to 1983-84 for 610 days. the labour court held that the termination of the petitioner on the ground of continued absence amounted to a stigma and as such inquiry was not conducted. the labour court also further held that the respondent had not followed the procedure before issuing letter of termination of getting the complainant medically checked by the doctor appointed by the respondent. further, it was mentioned in the order that the complainant was not intimated about the rejection of leave at any point of time.3. shri nargolkar, learned counsel appearing on behalf of the petitioner submitted that the industrial court had committed an error of law which is apparent on the face of record. he submitted that the industrial court had reappreciated the evidence and had allowed the revision application and therefore, the said order was without jurisdiction since the industrial court had no jurisdiction to reappreciate the evidence and come to a different conclusion from the one which had been reached by the labour court. he further submitted that even assuming that the industrial court had right to reappreciate the evidence, the only option which was available for the industrial court was to remand the matter back. in support of the said submission, he relied on the division bench judgment of this court in the case of vikas textiles v. sarva shramik sangh reported in 1990 i clr 257 and the judgment in the case of anand bihari and ors. v. rajasthan state road transport corporation, jaipur through its managing director and anr. reported in (1991) 1 scc 731.4. the learned counsel appearing on behalf of the respondent, on the other hand, submitted that the industrial court had set aside the order of the labour court since it found that the finding of the labour court was perverse. he submitted that in cases where the industrial court finds that the finding of the labour court is perverse, it can reappreaciate the evidence under revisional jurisdiction under section 44 of the mrtu and pulp act. she relied on the following judgments:1. cricket club of india and ors. v. d.r. shyam and anr. 2007 iii clr 50 h.c. bom.2. hotel oberoi towers v. gopal naidu : 2002 (94) flr 779 h.c. bom.3. vikas textiles v. sarva shramik sangh 1990 i clr 257 h.c.bom.5. the submission made by the learned counsel for the petitioner cannot be accepted. perusal of the judgment of the industrial court clearly reveals that the industrial court had rightly noticed that the finding of the labour court was patently perverse. the labour court had proceeded on the footing that no inquiry had been held and therefore, the order of termination was illegal since it amounted to stigma. the industrial court rightly, in my view, noticed that the question of holding inquiry in the present case did not arise. in the present case, the complainant admittedly was on leave for long period on the ground of illness and as such, the industrial court correctly held that the bank was justified in issuing notice of termination by paying compensation of discharge simplicitor and for such a discharge, no inquiry was necessary. the industrial court also, in my view, correctly observed that the question of getting the petitioner examined by a doctor on the panel of respondent did not arise since admittedly, the complainant was on leave for long period and the obligation was on the complainant to see whether his leave is sanctioned or there is any balance leave on record and as such, there was no question of getting the complainant examined by a doctor from the panel of the bank. there are number of judgments of this court wherein it has been held that if the industrial court in revision finds that the finding recorded is perverse, it can certainly reappreciate the evidence. he submitted that the industrial court ought to have remanded the matter back. the submission made by the petitioner has no substance. the ratio laid down by the judgment placed by the respondent squarely applies to the present case. hence, there is no merit in the submission made by the petitioner.6. the petition is dismissed. rule is discharged. under the circumstances, there shall be no order as to costs.

Judgment:
ORDER

V.M. Kanade, J.

1. By this petition, the petitioner is challenging the judgment and order passed by the Industrial Court in Revision Application (ULP) No. 24 of 1995. By the said judgment and order dated 7th February, 1996, the Industrial Court was pleased to allow the revision application filed by the respondent herein and the set aside the order passed by the Labour Court in Complaint (ULP) No. 191 of 1987 whereby the Labour Court had directed them to reinstate the complainant to his original post with continuity of service and back wages.

2. Brief facts in nutshell are that the petitioner was employed by respondent No. 1. His services, however, were terminated by order dated 25th September, 1985 on the ground of his absence from duty. The petitioner, therefore, filed a complaint of unfair labour practices. The Labour Court allowed the complaint and held that no inquiry had been held by the respondent into the misconduct of absence from duty and no opportunity was given to the petitioner to defend himself and as such, therefore, the order of termination was illegal. The Labour Court, however, held that the bank did not get the petitioner examined by a doctor. The reason which was given for termination of service was absence from duty for 71 days during the period from 1.7.84 to 11.10.84 and also for the absence from duty for the period from 1989-80 to 1983-84 for 610 days. The Labour Court held that the termination of the petitioner on the ground of continued absence amounted to a stigma and as such inquiry was not conducted. The Labour Court also further held that the respondent had not followed the procedure before issuing letter of termination of getting the complainant medically checked by the doctor appointed by the respondent. Further, it was mentioned in the order that the complainant was not intimated about the rejection of leave at any point of time.

3. Shri Nargolkar, learned Counsel appearing on behalf of the petitioner submitted that the Industrial Court had committed an error of law which is apparent on the face of record. He submitted that the Industrial court had reappreciated the evidence and had allowed the revision application and therefore, the said order was without jurisdiction since the Industrial court had no jurisdiction to reappreciate the evidence and come to a different conclusion from the one which had been reached by the Labour Court. He further submitted that even assuming that the Industrial Court had right to reappreciate the evidence, the only option which was available for the Industrial Court was to remand the matter back. In support of the said submission, he relied on the Division Bench judgment of this Court in the case of Vikas Textiles v. Sarva Shramik Sangh reported in 1990 I CLR 257 and the judgment in the case of Anand Bihari and Ors. v. Rajasthan State Road Transport Corporation, Jaipur through its Managing Director and Anr. reported in (1991) 1 SCC 731.

4. The learned Counsel appearing on behalf of the respondent, on the other hand, submitted that the Industrial Court had set aside the order of the Labour Court since it found that the finding of the Labour Court was perverse. He submitted that in cases where the Industrial Court finds that the finding of the Labour Court is perverse, it can reappreaciate the evidence under revisional jurisdiction under Section 44 of the MRTU and PULP Act. She relied on the following judgments:

1. Cricket Club of India and Ors. v. D.R. Shyam and Anr. 2007 III CLR 50 H.C. Bom.

2. Hotel Oberoi Towers v. Gopal Naidu : 2002 (94) FLR 779 H.C. Bom.

3. Vikas Textiles v. Sarva Shramik Sangh 1990 I CLR 257 H.C.Bom.

5. The submission made by the learned Counsel for the petitioner cannot be accepted. Perusal of the judgment of the Industrial Court clearly reveals that the Industrial Court had rightly noticed that the finding of the Labour Court was patently perverse. The Labour Court had proceeded on the footing that no inquiry had been held and therefore, the order of termination was illegal since it amounted to stigma. The Industrial Court rightly, in my view, noticed that the question of holding inquiry in the present case did not arise. In the present case, the complainant admittedly was on leave for long period on the ground of illness and as such, the Industrial Court correctly held that the bank was justified in issuing notice of termination by paying compensation of discharge simplicitor and for such a discharge, no inquiry was necessary. The Industrial Court also, in my view, correctly observed that the question of getting the petitioner examined by a doctor on the panel of respondent did not arise since admittedly, the complainant was on leave for long period and the obligation was on the complainant to see whether his leave is sanctioned or there is any balance leave on record and as such, there was no question of getting the complainant examined by a doctor from the panel of the bank. There are number of judgments of this Court wherein it has been held that if the Industrial Court in revision finds that the finding recorded is perverse, it can certainly reappreciate the evidence. He submitted that the Industrial Court ought to have remanded the matter back. The submission made by the petitioner has no substance. The ratio laid down by the judgment placed by the respondent squarely applies to the present case. Hence, there is no merit in the submission made by the petitioner.

6. The petition is dismissed. Rule is discharged. Under the circumstances, there shall be no order as to costs.