Sangram S/O. Pandharinath Jaibhai Vs. Maharashtra State Road Transport Corporation Through Its Divisional Controller, S.T. Division and Divisional Traffic Superintendent (D.T.S. Default), (Competent Authority) S.T. Division - Court Judgment

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labour and industrial - termination - power of revision - jurisdiction of industrial court - section 44 of the maharashtra recognition of trade unions and prevention of unfair labour practices (m.r.t.u. and p.u.l.p.) act, 1971 - petitioner-employee dismissed from the service for misappropriating of funds - dismissal was challenged - labour court reinstated the petitioner - respondent filed a revision petition before the industrial court and revision was allowed by the industrial court - hence, present petition - petitioner contended that industrial court had not properly re-appreciated the evidence and outstepped its jurisdiction - held, judicial review, it is trite, is not directed against the decision but is confined to the decision making process - judicial review is not an appeal from a decision but a review of the manner in which the decision is made - in the instant case, the industrial court did not exceed its jurisdiction and has analysed every aspect of the judgment of the labour court and demonstrated how that was not tenable - petition dismissedlabour and industrial - termination - appreciation of evidence - petitioner challenged his dismissal from service on ground that the evidence relied on during the domestic enquiry was not proper as the spot statement of passengers were not recorded in presence of petitioner, though it was admitted that they were recorded by the checker of the bus - held, in a domestic enquiry the strict and sophisticated rules of evidence under the indian evidence act may not apply - all materials which are logically probative for a prudent mind are permissible - therefore, it is not always necessary that the statements of the passengers should be recorded in the departmental enquiry - the report of the member of the checking party can be accepted - petition dismissed - 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]. - 4. it is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the indian evidence act may not apply. of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. 195 of the lower court file, clearly shows that the defence taken by the petitioner was that he had issued tickets from ticket tray to the said passengers, but they were not found not tallying with the tickets in ticket tray and the details were given.p.r. borkar, j.1. this writ petition is filed by an employee who was previously working with the respondents as a conductor and whose dismissal after domestic enquiry was upheld by the member, industrial court, jalna in revision petition no. 55 of 1994 decided on 15.11.1994. the learned member, industrial court thereby reversed the judgment and order passed by the judge, labour court, aurangabad in complaint (u.l.p.) no. 191 of 1988 decided on 21.07.1990.2. some of the facts giving rise to this petition are admitted and so may be stated at the outset. the petitioner was appointed as a conductor with respondents in about 1979. he continued to work till 12.12.1986. on 12.12.1986 the petitioner was on duty as a conductor on latur - kinwat bus. at about 19=00 hrs. at dabhada phata in between nanded and latur, the bus was checked by the checking squad. it was found that four passengers in two groups, who were travelling from nanded to kinwat were having tickets of rs. 17=50 per passenger. however, the tickets of rs. 14/-denomination issued to each of them was found to have been already used. in other words the petitioner is said to have re-issued already issued tickets. it is also found that two passengers who were to travel between nanded to barad were issued tickets of rs. 2=40 denomination each and they were also already used tickets. thus, it is stated that the petitioner tried to pocket money by re-issuing already used tickets. 3. after checking and recording statements of some of the passengers and also of the petitioner, report was given. charge-sheet was served on the petitioner under clauses 12-b, 22, 33 and 35-b of schedule 'a' of discipline and appeal rules. they include misappropriation of funds, fraud, dishonesty and not following the circulars and rules etc. the petitioner replied the charge-sheet. the enquiry was held. in the enquiry only a person from checking squad was examined. thereafter, show cause notice was issued to the petitioner why his services should not be terminated. the petitioner gave reply. thereafter, the order of dismissal was passed on 17.03.1987.4. the dismissal was challenged by the petitioner by filing complaint in the labour court under the provisions of the m.r.t.u. & p.u.l.p. act. the complaint was allowed by the labour court. as against the same, revision was filed by the respondents which came to be allowed and order of dismissal was upheld and the order passed by the labour court reinstating the petitioner/complainant in service with continuity and 50% back wages was set aside. it is this order is challenged in this writ petition. 5. shri pradeep shahane, the advocate appearing for the petitioner has argued that the industrial court has very limited jurisdiction under section 44 of the m.r.t.u. & p.u.l.p. act and he committed error in reappreciating the evidence. several authorities were cited by the learned advocate. the second submission was that though there was charge of selling used tickets, double entries were not found in the way bill. the cash of the conductor was not counted. the passengers with whom the tickets were found were not examined during enquiry. it is also stated that the spot statements of passengers were not recorded in presence of the complainant, though it is admitted that they were recorded by the checker of the bus. it it further stated that the spot statement of the petitioner was not fully recorded. thus there were illegalities and therefore the order of the industrial court be set aside. 6. shri a.b. dhongade, advocate appearing for the respondents supported the judgment of the industrial court. he stated that the industrial court has properly appreciated the evidence. the findings of facts by the labour court were perverse. he also relied upon certain authorities. 7. so far as jurisdiction of the industrial court is concerned, case of m.k. bhuvaneshwaran v. premier tyres ltd. and anr. : (2001)iiillj669bom is cited. in that case in para 9 it is observed that the powers of revision under section 44 of the m.r.t.u. & p.u.l.p. act of the industrial court are limited. the court does not sit as a court of appeal. only where the order is perverse the industrial court can interfere with the findings of fact. the earlier ruling hindustani prachar sabha and ors. v. dr. (miss) rama sen gupta and anr. 1986 i clr 77 was cited in which it is stated that where evidence could not justify the conclusion, in other words, where the order is perverse, the industrial court can interfere with. 8. this point was raised before the industrial court and it referred to case of vikas textiles v. sarva shramik sangh 1990 1 clr 257. this is a division bench ruling of this high court and section 44 of the m.r.t.u. & p.u.l.p. act was considered. it is observed that where the order of the labour court is unjustified and unreasonable, the industrial court may appraise the evidence. para 9 of the judgment is as follows:9. the position in law is clear. the power conferred by section 44 upon the industrial court empowers it, insofar as evidence is concerned, to set aside the order under revision when the evidence on record, reasonably read, is incapable of supporting the order. in other words, the industrial court may, in exercise of powers under section 44, overrule the order under revision when its conclusion on evidence is perverse.9. the learned industrial court has cited case of h.b. gandhi, excise and taxation officer-cum- assessing assessing authority, karnal and ors. v. gopi nath & sons and ors. to demonstrate that the very approach of the labour court in reappreciating the entire evidence and upsetting the conclusion drawn by enquiry officer was wrong. i may refer to para 8 of the ruling, which is as follows:8. but here what was assailed was the correctness of findings as if before an appellate forum. judicial review, it is trite, is not directed against the decision but is confined to the decision making process. judicial review cannot extent to the examination of the correctness or reasonableness of a decision as a matter of fact. the purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the court. judicial review is not an appeal from a decision but a review of the manner in which the decision is made. it will be erroneous to think that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.10. it is worth noting that one of the major reasons given by the labour court is that the cash with the conductor was not checked. it may be noted that it is not the case of the respondents that the money was not received (by the petitioner) from the passengers in question and that they were not given tickets. so, the cash would definitely include the money paid by the passengers. the question is whether the conductor has issued already used tickets. from this point of view the industrial court has rightly observed that the checking of cash was not material omission. 11. it is argued before this court that the passengers are not examined. the learned advocate for the petitioner has cited two cases. in the case of u.p. state road transport corporation and ors. v. mahesh kumar mishra and ors. 2000 lab.i.c.1031. in that case a bus conductor was found to have issued tickets to all passengers but they were short distance tickets. dispute was about point at which passengers boarded the bus. it was held that while deciding this issue the passengers ought to have been examined. merely relying on the report of transport inspector which was signed by the delinquent was not important. it must be noted that in the facts of the said case the transport inspector was not witness as to where the passengers in question had boarded the bus. only those passengers or those who had seen them boarding could have been the witnesses. therefore, in the facts of the said case it is stated that examination of passengers was necessary. it was not a case where passengers were allowed to travel without ticket.12. the second case cited is maharashtra state road transport corporation v. syed azgar ali : 2001(2)bomcr626 . in that case it is alleged that ticketless passengers were allowed to travel and they were not examined during domestic enquiry. it is held that in absence of evidence of those passengers it cannot be said that any passenger without ticket was travelling. it is held that evidence of the enquiry officer was not corroborated by independent evidence. so, the charge of collecting amount from the passengers without issuing tickets was held not proved. 13. in the case of state of haryana and anr. v. rattan singh : (1982)illj46sc , in para 4 and 5 following observations are made.4. it is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the indian evidence act may not apply. all materials which are logically probative for a prudent mind are permissible. there is no allergy to hearsay evidence provided it has reasonable nexus and credibility. it is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the indian evidence act. for this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. the essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. however, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. the residuum rule to which counsel for the respondent referred, based upon certain passages from american jurisprudence does not go to that extent nor does the passage from halbsbury insist on such rigid requirement. the simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. we find, in this case, that the evidence of chamanlal, inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. therefore, we are unable to hold that the order is invalid on that ground.5. reliance was placed, as earlier stated, on the non-compliance with the departmental instruction that statements of passengers should be recorded by inspectors. these are instructions of prudence, not rules that bind or vitiate in the violation. in this case, the inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. we cannot hold that merely because statements of passengers were not recorded the order that followed as invalid. likewise, the re-evaluation of the evidence on the strength of co-conductors testimony is a matter not for the court but for the administrative tribunal. in conclusion, we do not think the courts below were right in over-turning the finding of the domestic tribunal.it may be noted that in the case before the supreme court, objections were raised that none 11 passengers was examined in the domestic enquiry. secondly, it was pointed out that there was departmental instruction that the checking inspector should record statement of the passengers, which was not done in that case. the explanation of the state, as borne out by the record, is that the inspector of the flying squad who had said that they had paid the fares but they declined to give such written statements. the third ground raised in that matter was that the co-conductor in the bus had supported with his evidence, the guiltlessness of the respondent.the observations of the supreme court in para 4 and 5 quoted above not only shows how the labour court should have approached the issue, it is also stated that it is not always necessary that the statements of the passengers should be recorded in the departmental enquiry. the report of the member of the checking party can be accepted. so, in view of the observations of the supreme court, in my opinion, there is no reason why the evidence of the checker should not be believed.14. it is argued before this court that the statement of the petitioner was not completely recorded, but said statement recorded on the spot on 29.11.1986 which is at page no. 195 of the lower court file, clearly shows that the defence taken by the petitioner was that he had issued tickets from ticket tray to the said passengers, but they were not found not tallying with the tickets in ticket tray and the details were given. at the end of the entire statement there is signature of the petitioner. there is nothing in the statement to suspect that it was not voluntary statement. simply because a line was drawn in the middle, it does not become suspect. the signature of the petitioner remains at the foot of the statement. copies of way bills, inspection report etc. were also produced in the enquiry.15. i am taken through judgments of the labour court and the industrial court. in my opinion, the view taken by the industrial court cannot be assailed in the facts and circumstances of the case. it was in-fact correct and proper view. it is rightly observed by the industrial court that some the inferences drawn by the judge, labour court were his conjectures. in para 8, it is mentioned by the labour court that the complainant had admitted that he had re-issued the disputed tickets. but the petitioners spot statement is not believed merely because there was line drawn in the middle of the figures mentioned without realising that at the bottom of the statement there is signature of the petitioner. 16. considering the totality of the case, in my opinion, in this writ petition the view taken by the industrial court is reasonable, proper & legal and it cannot be interfered with. the industrial court did not exceed its jurisdiction and he has analysed every aspect of the judgment of the labour court and demonstrated how that was not tenable. it cannot be said that the view of the labour court was reasonable. in the facts and circumstances of the case, i do not find any reason to interfere with the judgment of the industrial court. 17. in the result, the writ petition is dismissed. rule discharged. parties to bear their own costs.