Brihanmumbai Municipal Corporation Vs. Mohanrao B. Shinde and ors. - Court Judgment

Excerpt:
labour and industrial - termination - section 11a of industrial disputes act, 1947 - respondent-employee threatened bus driver (another employee) that in case he did not join strike he will have to face dire consequences - bus drive complained against respondent-employee - respondent charge-sheeted and enquiry initiated - respondent found guilty and dismissed from service - dismissal order challenged - enquiry was fair and proper but findings of enquiry officer were perverse - except a talk by respondent with bus driver there was no overt or covert act on part of respondent - no charge of violence or any other threat or intimidation - punishment of dismissal was harsh and shockingly disproportionate - petitioner directed to reinstate respondent in his original post with continuity of service and full back wages. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - it appears that the bus driver who was threatened had complained to the management against the respondent employee. the enquiry officer considered the evidence and also gravity of the misconduct and passed an order of dismissal of the employee with effect from april 11, 1985. i may mention here that the enquiry officer who is called as trying officer under the rules of the best undertaking is also empowered to pass an order of punishment. 2. being aggrieved by the said order of the trying officer, the said employee preferred two appeals as per the rules but he failed in both the appeals. shri talsania, the learned counsel for the petitioners has pointed out that both the labour court and industrial court have exceeded their jurisdiction and misdirected themselves by interfering with the well reasoned findings of the enquiry officer. the complainant driver was also examined and has given his evidence to the effect that the employee had told him not to work during the strike period and that it will not be good for him. once the punishment is shockingly disproportionate considering the act of misconduct alleged against the employee and considering his good past records i am not inclined to impose any punishment by way of denial of 50% back wages.orderr.j. kochar, j.1. the petitioners are aggrieved by the judgment and order passed by the industrial court, maharashtra at mumbai on january 19, 1998 dismissing the appeal filed by them against an order of 7th labour court in application bir no. 235 of 1986. in the said application, the respondent employee had challenged the order of dismissal passed by the petitioners as illegal and improper and he had prayed for reinstatement with full back wages and continuity of service.2. it appears that some of the employees had gone on strike in response to the call given by their union on october 16, 1984. this union was not a representative and approved union in the local area for the petitioners' undertaking. it appears that the respondent employee belonged to the said union. it further appears that on that date, he had threatened another bus driver that if he did not join the strike and if he worked during the strike, he will have to face dire consequences. it appears that the bus driver who was threatened had complained to the management against the respondent employee. it further appears that on his complaint, the respondent employee was charge sheeted under the standing order 20(1) and 20 (r) i.e. any act subversive of discipline on the premises of the undertaking and intimidation of fellow employee of the undertaking. the petitioners held a full fledged enquiry wherein, the respondent employee was allowed to be represented by his union representative. the witnesses examined by the petitioners were cross examined and as far as the procedural part of the enquiry is concerned, there is no challenge and it has been held to be fair and proper. the enquiry officer considered the evidence and also gravity of the misconduct and passed an order of dismissal of the employee with effect from april 11, 1985. i may mention here that the enquiry officer who is called as trying officer under the rules of the best undertaking is also empowered to pass an order of punishment.2. being aggrieved by the said order of the trying officer, the said employee preferred two appeals as per the rules but he failed in both the appeals. the employee, therefore, filed an application under section 79 read with sections 78 and 42(4) of the bombay industrial relations act, challenging legality and propriety of the order of dismissal. the parties completed their pleadings and the labour court by its order dated august 18, 1995 held that the enquiry was fair and proper and the findings were not perverse. however, he held that the punishment of dismissal was shockingly disproportionate and, therefore, the labour court granted reinstatement with full back-wages and continuity of service to the respondent employee. the petitioner filed an appeal before the industrial court under section 84 of the act against the order of the labour court. the industrial court by its order dated february 28, 1996 remanded the matter back to the labour court with a direction to consider, inter alia, and to record its findings as to whether the misconduct was proved and whether it was of serious nature and whether the punishment awarded by the trying officer was shockingly disproportionate. on remand the labour court held that the enquiry was fair and proper but the findings of the enquiry officer were wrong, illegal and perverse. he also held that the punishment of dismissal was harsh and shockingly disproportionate. the labour court directed the petitioner to reinstate him in his original post with continuity of service and full back wages. the petitioner again filed an appeal before the industrial court and the industrial court by its order dated january 19, 1998 dismissed the appeal and confirmed the order of the labour court.3. the petitioners are aggrieved by the said order of the industrial court. shri talsania, the learned counsel for the petitioners has pointed out that both the labour court and industrial court have exceeded their jurisdiction and misdirected themselves by interfering with the well reasoned findings of the enquiry officer. according to the learned counsel, neither the labour court nor the industrial court had power and jurisdiction to reappreciate the evidence to come to a different conclusion by holding that the charges were not proved and that punishment was shockingly disproportionate. shri talsania further pointed out that there was some material before the trying officer on the basis of which the order of dismissal was passed against the employee. according to him it is not that the trying officer had given a perverse finding without any basis or evidence before him. shri talsania also pointed out that the bare minimum facts which are found are that the respondent employee had told his colleague that he should not work during the strike and that he will have to face dire consequences, if he works during the strike period. this fact has been admitted by the employee and has further been corroborated by the management witnesses. the complainant driver was also examined and has given his evidence to the effect that the employee had told him not to work during the strike period and that it will not be good for him. it appears that after lapse of time the complainant employee has watered down its versions. one fact is clear that the so called threat issued by the respondent employee was not carried out in any manner. both the courts below have recorded the concurrent findings of facts and have also recorded concurrent conclusions that in the given circumstances, the order of punishment was shockingly disproportionate.4. in these circumstances, i am not able to agree with the submissions of shri talsania that the respondent employee could be punished by way of dismissal merely because he had a talk with the complainant employee not to work during the strike. it is not unusual that during the strike period, the striking employees do always try to persuade their fellow employees to join the strike and they try to dissuade those who go to join their duties. i agree with the contention that the striking employees should not and cannot threaten those who want to join their duties. in the present case, except a talk by the respondent employee with the complainant employee, there is no overt or covert act on the part of the respondent employee. there is no charge of violence or any other threat or intimidation. even the complainant employee in the enquiry has not said anything else against the respondent employee, who had told the enquiry officer that the complainant was his friend and that he had merely jokingly told him not to work during the strike and that he had no intention to issue any threat to him as he was his friend. it appears that the employees have amicably compromised their stand and the complainant employee also did not want to take the things too far. in these circumstances, i agree with the concurrent conclusion of the courts below that the order of dismissal of the respondent employee was shockingly disproportionate. shri talsania has tried to persuade me with a suggestion that as 50% wages have already been paid to the employee pursuant to the orders passed by this court on july 2, 1999, as and by way of punishment 50% wages should be cut if at all the workman has to be reinstated with full back wages. i do not agree with such a suggestion. once the punishment is shockingly disproportionate considering the act of misconduct alleged against the employee and considering his good past records i am not inclined to impose any punishment by way of denial of 50% back wages.5. the petitioners however, would issue a letter of warning to the respondent employee which would remain on his record. with the above observations the petition is dismissed. rule is discharged with no orders as to costs.

Judgment:
ORDER

R.J. Kochar, J.

1. The petitioners are aggrieved by the judgment and order passed by the Industrial Court, Maharashtra at Mumbai on January 19, 1998 dismissing the appeal filed by them against an order of 7th Labour Court in Application BIR No. 235 of 1986. In the said application, the respondent employee had challenged the order of dismissal passed by the petitioners as illegal and improper and he had prayed for reinstatement with full back wages and continuity of service.

2. It appears that some of the employees had gone on strike in response to the call given by their union on October 16, 1984. This union was not a representative and approved union in the local area for the petitioners' undertaking. It appears that the respondent employee belonged to the said union. It further appears that on that date, he had threatened another bus driver that if he did not join the strike and if he worked during the strike, he will have to face dire consequences. It appears that the bus driver who was threatened had complained to the management against the respondent employee. It further appears that on his complaint, the respondent employee was charge sheeted under the standing Order 20(1) and 20 (R) i.e. any act subversive of discipline on the premises of the undertaking and intimidation of fellow employee of the Undertaking. The petitioners held a full fledged enquiry wherein, the respondent employee was allowed to be represented by his union representative. The witnesses examined by the petitioners were cross examined and as far as the procedural part of the enquiry is concerned, there is no challenge and it has been held to be fair and proper. The enquiry officer considered the evidence and also gravity of the misconduct and passed an order of dismissal of the employee with effect from April 11, 1985. I may mention here that the enquiry officer who is called as Trying Officer under the rules of the BEST undertaking is also empowered to pass an order of punishment.

2. Being aggrieved by the said order of the Trying Officer, the said employee preferred two appeals as per the rules but he failed in both the appeals. The employee, therefore, filed an application under Section 79 read with Sections 78 and 42(4) of the Bombay Industrial Relations Act, challenging legality and propriety of the order of dismissal. The parties completed their pleadings and the Labour Court by its order dated August 18, 1995 held that the enquiry was fair and proper and the findings were not perverse. However, he held that the punishment of dismissal was shockingly disproportionate and, therefore, the Labour Court granted reinstatement with full back-wages and continuity of service to the respondent employee. The petitioner filed an appeal before the Industrial Court under Section 84 of the Act against the order of the Labour Court. The Industrial Court by its order dated February 28, 1996 remanded the matter back to the Labour Court with a direction to consider, inter alia, and to record its findings as to whether the misconduct was proved and whether it was of serious nature and whether the punishment awarded by the Trying Officer was shockingly disproportionate. On remand the Labour Court held that the enquiry was fair and proper but the findings of the enquiry officer were wrong, illegal and perverse. He also held that the punishment of dismissal was harsh and shockingly disproportionate. The Labour Court directed the petitioner to reinstate him in his original post with continuity of service and full back wages. The petitioner again filed an appeal before the Industrial Court and the Industrial Court by its order dated January 19, 1998 dismissed the appeal and confirmed the order of the Labour Court.

3. The petitioners are aggrieved by the said order of the Industrial Court. Shri Talsania, the learned counsel for the petitioners has pointed out that both the Labour Court and Industrial Court have exceeded their jurisdiction and misdirected themselves by interfering with the well reasoned findings of the enquiry officer. According to the learned counsel, neither the Labour Court nor the Industrial Court had power and jurisdiction to reappreciate the evidence to come to a different conclusion by holding that the charges were not proved and that punishment was shockingly disproportionate. Shri Talsania further pointed out that there was some material before the Trying Officer on the basis of which the order of dismissal was passed against the employee. According to him it is not that the Trying Officer had given a perverse finding without any basis or evidence before him. Shri Talsania also pointed out that the bare minimum facts which are found are that the respondent employee had told his colleague that he should not work during the strike and that he will have to face dire consequences, if he works during the strike period. This fact has been admitted by the employee and has further been corroborated by the management witnesses. The complainant driver was also examined and has given his evidence to the effect that the employee had told him not to work during the strike period and that it will not be good for him. It appears that after lapse of time the complainant employee has watered down its versions. One fact is clear that the so called threat issued by the respondent employee was not carried out in any manner. Both the Courts below have recorded the concurrent findings of facts and have also recorded concurrent conclusions that in the given circumstances, the order of punishment was shockingly disproportionate.

4. In these circumstances, I am not able to agree with the submissions of Shri Talsania that the respondent employee could be punished by way of dismissal merely because he had a talk with the complainant employee not to work during the strike. It is not unusual that during the strike period, the striking employees do always try to persuade their fellow employees to join the strike and they try to dissuade those who go to join their duties. I agree with the contention that the striking employees should not and cannot threaten those who want to join their duties. In the present case, except a talk by the respondent employee with the complainant employee, there is no overt or covert act on the part of the respondent employee. There is no charge of violence or any other threat or intimidation. Even the complainant employee in the enquiry has not said anything else against the respondent employee, who had told the enquiry officer that the complainant was his friend and that he had merely jokingly told him not to work during the strike and that he had no intention to issue any threat to him as he was his friend. It appears that the employees have amicably compromised their stand and the complainant employee also did not want to take the things too far. In these circumstances, I agree with the concurrent conclusion of the Courts below that the order of dismissal of the respondent employee was shockingly disproportionate. Shri Talsania has tried to persuade me with a suggestion that as 50% wages have already been paid to the employee pursuant to the orders passed by this Court on July 2, 1999, as and by way of punishment 50% wages should be cut if at all the workman has to be reinstated with full back wages. I do not agree with such a suggestion. Once the punishment is shockingly disproportionate considering the act of misconduct alleged against the employee and considering his good past records I am not inclined to impose any punishment by way of denial of 50% back wages.

5. The petitioners however, would issue a letter of warning to the respondent employee which would remain on his record. With the above observations the petition is dismissed. Rule is discharged with no orders as to costs.