Hotel Oberoi Towers Vs. Gopal Naidu - Court Judgment

R.J. Kochar, J.

1. The petitioner, a Five Star Hotel, was the employer of the respondent-employee at the relevant time. Both the parties would be referred to as the employer and employee. The petitioner-employer is aggrieved by the judgment and order dated 13-12-2000 passed by the learned Member of the Industrial Court, Maharashtra at Mumbai in Revision Application No. 48 of 1998 under section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short MRTU & PULP Act).

2. The facts in nutshell are as follows :

3. The employee was in permanent employment of the petitioner-employer for a period of 24 years. There is no dispute that the employee had a meritorious service record of 24 years service with the petitioner-employer. There is also no dispute that the petitioner-employer had issued from time to time merit certificates to the employee for the meritorious and good work done by him.

4. It appears that on 14-4-1995 the petitioner-employer had issued permission, what is known as transmission slip, to take on drum outside the premises. When he was loading the drum in the taxi standing at the gate of the hotel it appears that the Security Supervisor checked the taxi and according to him, the employee was loading 'drums' and he found 21 brass plates in the dicky of the taxi. I may mention here at this stage itself to simplify the controversy between the parties at once. According to the petitioner-employer the employee was allowed to take one drum only but he was actually found to take away 'drums' and brass plates which were kept in the dicky of the taxi. According to the Security Supervisor, on the basis of the transmission slip, the employee could take only one drum and not the 'drums' and the brass plates. There is no clarification from the record whether by use of plural 'drums' the petitioner-employer meant two drums or more than two drums. The use of plural noun has also created some confusion on record. There is also no clarification whether the drum or drums were loaded in the dicky or on the top of the carrier of the taxi. There is however no dispute that one drum was allowed to be taken away by the employee. Further there is no dispute that 21 discarded brass plates were also found in the dicky of the taxi by the Security Superior. For this incident the petitioner-employer had issued a charge-sheet on 15-4-1995 alleging that the employee was trying to commit theft of the company's property. The employee was charged with the misconduct of 'theft', fraud or dishonesty in connection with the company's business or property and commission of any act subversive of discipline or good behaviour on the premises of the establishment' as contemplated under the Standing Orders. Soon thereafter on 17-4-1995 the employee submitted his written explanation to the charge-sheet. He explained that along with the 'drums' he was taking the discarded name plates which were given to him by the Scrap Contractor Shri Shivkumar. At that time on an enquiry by the Security Officer he had explained what and how he was taking the material in the taxi. He also noted that he had 24 years of clean service and that he was working with honesty and that he had no bad intention to take the material by way of theft. Not satisfied with the written explanation submitted by the employee the petitioner-employer proceeded to hold a domestic enquiry in the charge-sheet. The Enquiry Officer recorded the evidence of Shri Puri, the Security Officer on behalf of the management, and the evidence of Shri Shivkumar and the employee himself. On the basis of the evidence on the record the Enquiry Officer held the employee guilty of the charges levelled against him. The petitioner-employer accepted the report and findings of the Enquiry Officer and passed an order of dismissal of the employee from employment on 7-10-1996.

5. Aggrieved by the said order of dismissal the employee filed a complaint of unfair labour practice under section 28 read with section 30 and Item 1 of Schedule IV of the MRTU & PULP Act challenging the order of dismissal as an unfair labour practice as contemplated by the Act. The petitioner-employer contested the complaint by filing its written statement. Both the parties adduced documentary evidence but none adduced any oral evidence in support of their respective contentions on the merits of the case. The employee, however, had stepped in the witness box only to swear on oath that he was not employed gainfully after the order of dismissal was passed by the petitioner-employer. The employee did not challenge the fairness and propriety of the domestic enquiry held against him. It appears that the procedural part of the enquiry proceedings was accepted as fair and proper and not in violation of the principles of natural justice. The employee however questioned the finding of guilt recorded by the Enquiry Officer as baseless and perverse and that no reasonable man would come to the conclusions as were drawn by the Enquiry Officer. It appears that the contest between the parties was confined to the question of perversity or otherwise of the findings of the Enquiry Officer and proportionality of the punishment. By an order dated 14-10-1997 the Labour Court was pleased to partly allow the complaint holding that the order of dismissal of the employee was shockingly disproportionate but he did not grant reinstatement but he Awarded a sum of Rs. 10,000/- as compensation in lieu of reinstatement with backwages.

6. Aggrieved by the said order passed by the Labour Court the employee therefore, filed a revision application before the Industrial Court under section 44 of the MRTU & PULP Act, 1971. On the basis of the pleadings of the parties the learned Member of the Industrial Court framed issues or points for determination in the revision and after hearing the parties by his judgment and order dated 8-1-1998 allowed the revision and remanded the matter back to the Labour Court for fresh consideration of the complaint. This was the first round of litigation between the parties.

7. It appears that on remand the Labour Court reconsidered the complaint and by its order dated 24-2-1998 dismissed the complaint on merits. The employee was again aggrieved by the aforesaid order of the Labour Court dismissing his complaint and he again preferred a revision application under section 44 of the Act, before the Industrial Court. By the impugned order dated 13-12-2000 the Industrial Court quashed and set aside the order of the Labour Court and granted the employee the relief of reinstatement with full backwages and continuity of service. The petitioner-employer is aggrieved by the said order of the Industrial Court, and therefore, has approached this Court under Article 226 of the Constitution of India for a writ of certiorari or any other appropriate writ order or direction to quash and set aside impugned order passed by the Industrial Court in the second round of the litigation.

8. I have heard both the learned Advocates for their respective parties. According to Shri Rajesh Gehani, the learned Advocate for the petitioner employer, the Industrial Court had no powers and jurisdiction under section 44 of the Act to reappreciate and reassess the evidence and to come to a different conclusion than that of the Enquiry Officer and the Labour Court. According to Shri Gehani, the Industrial Court has a very narrow and restricted jurisdiction under section 44 of the Act. It certainly cannot reappreciate and reassess or re-examine the evidence on record. Even if it does not agree with the findings and the conclusions of the Enquiry Officer and the Labour Court. Its jurisdiction is restricted to the extent of finding of error of law apparent on the face of the record. The Industrial Court cannot enter into the controversy of the case on merits, says the learned Advocate. According to Shri Gehani, even if there are errors of facts howsoever gross they may be the restricted and narrow revisional jurisdiction of the Industrial Court does not permit it to reverse the findings of facts recorded by the Enquiry Officer or the Labour Court unless such findings are found to be perverse or baseless. According to Shri Gehani, the findings recorded by the Enquiry Officer are based on the evidence and material on record and even the Labour Court has appreciated the evidence in the enquiry and examined the report of the Enquiry Officer and has come to his own conclusion that the findings were not perverse. Shri Gehani has further submitted that it was a case of theft, and therefore, punishment of dismissal was the only proper punishment, and therefore, it was not proper for the Industrial Court to have interfered with the order of punishment of dismissal of the employee. Shri Gehani has relied on the following two judgments of this Court on the point of scope of the revisional jurisdiction of the Industrial Court.

1. 1995(I) C.L.R. 854(Bom.) Vithal Gatlu Marathe v. Maharashtra State Road Transport Corporation & others.

2. 2002(I) C.L.R. 387(Bom.) Podar Mills (Process House) v. Kamlakar Ganpat Sawant.

9. Shri Bhatt the learned Advocate for the respondent-employee, on the contrary, has strenuously urged that the order passed by the Labour Court was totally baseless and perverse, and therefore, the Industrial Court was fully justified and within its powers under section 44 of the Act to set aside the order of the Labour Court. According to Shri Bhatt the test to be applied would be that of a reasonable man. If such a reasonable man comes to a conclusion of guilt or otherwise on the basis of the material on record in that case the findings should be held to be proper. In the present case according to Shri Bhatt no reasonable man would have come to the conclusion of guilt of the employee based on the evidence or material before the Enquiry Officer. He further extends his submissions to the Labour Court's findings. According to Shri Bhatt the Labour Court has merely and mechanically confirmed the findings of the Enquiry Officer without scrutinising or appreciating the evidence for the purpose of findings whether the conclusions were based on some material on record and whether any reasonable man would come to the same conclusion. Shri Bhatt has taken me through the entire proceedings including the oral and documentary evidence. His effort was to bring home his point that there was perversity in the findings of the Enquiry Officer as well as in the judgment of the Labour Court. He has also stressed the point of proportionality of the punishment. According to him, the employee had 24 years meritorious and unblemished service record, he had not only not received any adverse memos but on the contrary he had received merit certificates for the good work done by him during the long span of 24 years employment. Shri Bhatt has also emphasised the fact that the employee was taking only one empty drum of 300 liters with the permission of the department on the basis of the transmission slip given to him. Shri Bhatt pointed out that he had absolutely no intention to commit the theft of taking the drum out of the work place and he could not do so in the broad day light under the strict supervision of the security at the gate of the Five Star Hotel of the petitioner. According to Shri Bhatt though the plural word 'drums' is used in his explanation it was only an inadvertent and innocuous mistake as he was not an educated mean knowing English. He got the explanation scribed from some one and he put his signature and submitted the same to the management. Factually and actually, according to Shri Bhatt, in the dicky of the taxi or even on the carrier no two drums of 300 liters could be taken. Shri Bhatt further pointed out that there were 21 discarded brass plates found in the dicky of the taxi. On a query by the Security Officer the employee told him that those brass plates were purchased by the regular scrap dealer who regularly purchased the scrap material from the hotel. He gave the name of scrap dealer as Shivkumar. Shri Bhatt further pointed out that it was pertinent to note that on satisfying himself the Security Officer allowed the taxi with the one drum and the brass plates to leave the premises and that he was not detained with the taxi. Shri Bhatt, therefore, submitted that the Security Officer was satisfied with the explanation given by the employee that he was allowed to carry one drum and he was actually carrying one drum and the discarded brass plates which were given to him by the scrap dealer Shri Shivkumar. Shri Bhatt argues that if the Security Officer was not satisfied he would have been detained with the taxi and would have been handed over to the police for trying to commit theft of the company's property. No such steps were taken by the Security Officer as there was no attempt on the part of the said employee to commit any act of misconduct as alleged. Shri Bhatt further points out that if the Security Officer had found that there were more than one drums in that case there would have been some evidence before the Enquiry Officer as to what happened to the other drum, as the employee was allowed to take one drum as permitted under the transmission slip. Shri Bhatt has further submitted that in the enquiry the employee had examined Shri Shivkumar, the scrap dealer who had deposed that he had purchased the said discarded brass plates from the petitioner-employer along with a number of other items the list of which was given to the Enquiry Officer and the same forms part of the record. Shri Shivkumar has deposed before the Enquiry Officer that he had given those brass plates to the employee as he wanted the same for the purpose of the use in the temple. Shri Bhatt, therefore, submits that as far as the allegation of theft of one drum is concerned there is no substance and nothing is proved and he was allowed to take one drum in the taxi and he was also allowed to take the discarded brass plates as he was given the same by the scrap dealer. According to Shri Bhatt, even in the enquiry the witness of the company could not say whether those brass plates were owned by the company. The ownership of the said property was not proved by the company. In these circumstances according to Shri Bhatt, the petitioner-employer had failed to bring home the charge of theft or dishonesty as levelled against the said employee. Shri Bhatt in alternative submitted that assuming that there was some irregularity on the part of the employee the punishment of dismissal would be shockingly disproportionate considering the extenuating factor of 24 years' meritorious service of the employee in the company.

10. On the point of jurisdiction under section 44 of the Act Shri Bhatt has submitted that the findings of the Labour Court were totally perverse and therefore, the Industrial Court was fully justified in reappreciating and reassessing the evidence as the Labour Court had not done any appreciation or assessment of the evidence at all. The Industrial Court has considered the enquiry proceedings and the findings of the Enquiry Officer and also the judgment of the Labour Court. The learned Member of the Industrial Court has concluded that the findings of the Labour Court were totally perverse and therefore, he was justified in setting aside and quashing the same on the basis of the permissible limit of perversity of the lower Court's order. Shri Bhatt has placed reliance on the following judgments:

1. 1972(25) I.F.L.R. 1(S.C.) Delhi Cloth and General Mills Co. v. Ludh Budh Singh

2. : AIR1984SC1401 - State of U.P. Through Deputy Dy. Commissioner, Unnao v. The District Judge, Unnao & others

3. 1997(I) C.L.R. 188 - Orissa Mining Corporation & another v. Ananda Chandra Prusty

4. : (1991)IILLJ451Bom Vikas Textiles v. Sarva Shramik Sangh

As far as the jurisdiction under section 44 of the Act is concerned there is no dispute or quarrel with the proposition of law laid down by our Division Bench in the case of Vithal G. Marathe (supra) that 'in exercise of limited jurisdiction under section 44 of the Act the Industrial Court cannot reappreciate the evidence and overturn findings of the fact however erroneous those findings may be'. The Bench further observed 'It may be that in a given case or cases, we have, in our anxiety to do justice, have done so on occasions. But that is a different matter.' The judicial anxiety to do justice is also expressed by the learned Judges while reiterating the limited jurisdiction of the revisional jurisdiction. What is conveyed by the learned Judges is that in one's anxiety to do justice in appropriate cases, some times appreciation or reappreciation of the materials on record can be done and such an exercise is done though not permissible in law. The learned Judges have set out the negative parameters of the jurisdiction under section 44 of the Act by saying what it cannot do. In the case of Vikas Textile (supra) our Division Bench (Bharucha & Wahane, JJ.) has laid down the positive role of the Revisional Court under section 44 of the Act as under :

'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.'

(emphasis is given by me)

The learned Judges have laid down the law that section 44 empowers the Industrial Court 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. The learned Judges have further held that the order under revision can be overruled when its conclusion on evidence is perverse. The Judgment of the Division Bench in Marathe's case prescribes what section 44 does not permit while the Vikas judgment positively shows what the Industrial Court can positively do to exercise the jurisdiction under said section. It is, therefore, significant to note that if the Labour Court has come to a particular conclusion on the basis of the evidence it is the power of the Industrial Court to examine whether on the basis of the aforesaid evidence if reasonably read one can come to the same conclusion or not and whether the findings recorded by the Labour Court can be assailed as perverse. It therefore, means that after reasonably reading the evidence if the order of the Labour Court is incapable of supporting, in that case the Industrial Court would have jurisdiction to interfere with such an order. We therefore, have to read the evidence and material before the Labour Court as suggested by the Division Bench, reasonably and we have to find out whether the said order of the Labour Court is capable or incapable of supporting and whether the order can be condemned as perverse.

11. Both the learned Advocates have taken me through the report of the Enquiry Officer, the judgment of the Labour Court and the judgment of the Industrial Court. I have examined the judgment of the Labour Court carefully. Upto paragraph 12 the Labour Court has merely reproduced the contents of the enquiry proceedings and the report of the Enquiry Officer. Further he has reproduced the submissions and averments of both the learned Advocates. The learned Judge has also recorded the oral evidence appearing in the domestic enquiry. He has given his final touch in paragraph 13 and in paragraph 14 and 15 he has considered the portion of the punishment. On the point of appreciation and assessment of the evidence we have before us only one paragraphs i.e. 13 which is crucial to find out whether and in what way the learned Labour Court has appreciated and assessed the evidence and material before him. After recording the legal position that the Labour Court cannot sit in appeal over the findings of the Enquiry Officer and against the order of punishment passed by the employer, the learned Judge has merely stated that he could not take different view to say that the findings drawn by the Enquiry Officer were perverse. What the learned Judge has held in that respect can be better read in his own language. I therefore, reproduce the paragraph 13 as under:

13. On the basis of the evidence before the Enquiry Officer, the Enquiry Officer has drawn his findings. The Enquiry Officer in his enquiry report discussed the evidence and come to the conclusion that charges levelled against the complainant are proved and he is guilty of dishonesty in connection with the company's property by taking the items in question without any authority and since the above act of misconduct account to commission of an act subversive of discipline and good behaviour on the premises of the establishment is proved. Now it is well settled position of law that this Court is not sitting in appeal against the findings drawn by the Enquiry Officer or against the order of the respondent. This Court also cannot take different view to say that findings drawn by the Enquiry Officer are perverse. Only this Court can are whether the findings drawn by the Enquiry Officer are perverse or not and on perusal of the evidence before the Enquiry Officer I find that the conclusion reached by the Enquiry Officer in as per the evidence before him and I do not find any perversity in the findings drawn by the Enquiry Officer in holding that the charges levelled against the complainant were duly proved in the enquiry and therefore the complainant has failed to establish that the findings drawn by the Enquiry Officer are perverse. Hence, I answer the said issue accordingly.'

It would be crystal clear that except saying that 'I do not find any perversity in the findings drawn by the Enquiry Officer in holding that the charges levelled against the employee were duly proved in the enquiry and therefore, he had failed to establish that the findings drawn by the Enquiry Officer were perverse' there is absolutely no discussion of the material and evidence before the Enquiry Officer. Merely to say that I do not find any perversity in the findings of the Enquiry Officer cannot be said to be appreciation or assessment of the evidence and material before the Enquiry Officer to oust the revisional jurisdiction of the Industrial Court under section 44 of the Act. The Labour Court has in fact neither appreciated nor assessed nor scrutinised nor examined the evidence and material critically and judicially. Mere production or reproduction of evidence cannot be said to be critical appreciation of the evidence or judicial assessment of the material. What is contemplated is that the trial Judge must appreciate and assess the evidence and material before him and not merely reproduce the same. Upto paragraph 12 the Labour Court has merely reproduced the evidence and material and the question answers in the enquiry. He has straightway jumped to the conclusion that he did not find any perversity in the findings of the Enquiry Officer. He has not given any reasons for such conclusions. In fact what was expected even of the Enquiry Officer was to discuss the evidence and to try to find out whether there was evidence or material on record in support of the alleged charges. In the present case there is total absence of application of mind by the Labour Court to the evidence and material before the Enquiry Officer. The Labour Court does not say for what reasons he finds that findings were not perverse. As is observed by Justice Bharucha in the case of Vikas Textiles (supra) that the evidence must be reasonably read and the findings must be capable of supporting. The Labour Court has totally failed in this respect in the impugned order. There is no dispute that before the Enquiry Officer the charge-sheeted employee had examined Shri Shivkumar, the scrap dealer in support of his case that the discarded brass plates were given by him to the employee. There is absolutely no reason why the said evidence cannot be believed. Shri Shivkumar was an ordinary person doing the business of purchase and sell of scrap material. He has produced a list of scrap material purchased by him from the hotel wherein at Item No. 26 in Annexure-A brass scrap appears. If this evidence is reasonably read it does support the case of the employee that the said scrapwala had purchased the discarded brass plates from the hotel and had give the same to the employee. There is absolutely no reason why this evidence was discarded and was not believed. Even the Labour Court has not adverted to the said position which surely clears the employee from the serious charge of theft of the discarded brass plates which were found in the dicky of the taxi. Besides, the witness examined by the employer was also not able to identify the ownership of those plates. On the point of drum it is the case of the employee that he was carrying one drum after permission was given by the department. He had produced a valid transmission pass to carry the drum. The drum was getting loaded in the taxi. No doubt in the explanation the plurality of the noun is mentioned. In that case it was for the employer to come out clearly with the case how many drums the employee was loading on the taxi. The management people are cleverly quiet on this point. They are merely beating the word 'drums' as mistakenly mentioned by the illiterate employee. If the petitioner employer was sure that the employee was loading more than one drum in that case the Security Officer ought to have very categorically stated in his evidence as to how many drums were loaded in the taxi and why he had allowed the taxi to leave the gate. If we read the evidence reasonably it does appear that the employer has failed to prove the second charge of theft of the drum. The employee was carrying the drum under the transmission slip which was given to him and which was an admitted fact. The charge against the employee was that he was carrying more than one drum as permitted under the transmission slip, in that case the whole burden was on the management to prove how many drums the employee was loading in the dicky of the taxi or on top of the taxi. The Security Officer does not say even a word about the number of drums. The charge of theft of drums on employee is a very serious charge and therefore, it must be proved to the hilt on evidence as their evidence would have been very simple and elementary if the Security Officer had said that the employee was loading more than one drum and that he unloaded the drum/drums and kept in the premises, it would have clinched the misconduct against the employee. If we read the evidence reasonably as suggested by the Division Bench a conclusion is in escapable that the petitioner-employer had failed to prove the charge levelled against the employee not only in the enquiry but also before the Labour Court. The Labour Court has not at all adverted and has not at all applied its mind to the evidence and material in the enquiry proceedings. If such is the findings recorded by the Labour Court the role or the function of the Industrial Court under section 44 of the Act is instantaneously attracted. The revisional jurisdiction or the supervisory jurisdiction vested in a higher Court is certainly to set-right miscarriage of justice and a totally perverse and illegal order. In the present case the order of the Labour Court is totally perverse as the Labour Court has not at all applied its mind to the facts on record and has mechanically come to a conclusion for support of which the Labour Court has not recorded any reasons. In the circumstances it was for the Industrial Court to have stepped in to avoid the miscarriage of justice. From the order of the Industrial Court it is absolutely clear that the Industrial Court has read the evidence before the Enquiry Officer and has appreciated and assessed the evidence on record. The role which the Labour Court ought to have played the Industrial Court has done. It is possible to argue that the matter ought to have been remanded to the Labour Court and that the Industrial Court should not have appreciated the evidence which was the jurisdiction of the Labour Court. We must however remember that the labour litigation is not a luxurious litigation which an unemployed employee can afford to fight life long. In the present case there was already one round of litigation. The employee had once partly succeeded before the Labour Court against which there was a revision before the Industrial Court and Industrial Court had remanded the matter before the Labour Court. Instead of second round of litigation the Industrial Court has itself applied its mind to the facts and circumstances, evidence and material and has come to a right conclusion. I do not think that by appreciating and assessing the evidence in the aforesaid circumstances the Industrial Court has committed any error of law or the Industrial Court has overstepped or transgressed its restricted jurisdictional boundaries. The order of the Labour Court was certainly a perverse order and the Industrial Court has set the same right. I do not find any error of law on the part of the Industrial Court in setting aside the order of the Labour Court and granting positive relief to the employee in the circumstances. The Industrial Court has rightly observed that the Labour Court had not applied its mind to the evidence adduced by the management before the Enquiry Officer and that it had not appreciated the defence put by the employee in proper perspective. The Industrial Court has also observed that the Labour Court did not consider and appreciate the inherent contradictions in the evidence of the management before the Enquiry Officer. The Industrial Court was therefore, justified in appreciating and scrutinising the evidence on record independently. The Industrial Court has also observed that the Labour Court had not read the cross-examination and had confined only to the examination-in-chief of the witness of the employer. There is another crucial aspect in the matter and that is according to the Labour Court it was for the charge-sheeted employee to prove his innocence. In fact and in law the burden lies on the employer to prove the misconduct levelled against the delinquent employee. The Labour Court expected the employee to prove his innocence and that was a basic and fundamental error of law committed by the Labour Court. Besides, in fact the employee has proved his innocence by showing the transmission slip on the basis of which he was taking the drum and on the basis of the evidence of Shri Shivkumar he had proved that the said material was given to him by Shri Shivkumar the scrap purchaser who had purchased the said discarded brass plates as scrap material from the petitioner-employer. Again we also cannot forgot that the employer's witness clearly admitted that he was not able to say that the said property belonged to the company. In the circumstances it cannot be said that the employee had committed a theft of the company's property. The Industrial Court has rightly observed that the Enquiry Officer had picked some pieces of evidence here and there to weave his so called enquiry report. The Industrial Court has observed that the Labour Court had totally failed in its judgment to examine the evidence on record. The Industrial Court has undergone the said exercise only to place on record how the findings of the Labour Court were perverse and if the findings of the Labour Court are perverse the Industrial Court gets power and jurisdiction to interfere with such an order under section 44 of the Act.

12. I do not find any illegality, impropriety and infirmity in the judgment and order of the Industrial Court. There is absolutely no reason for this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India to interfere with such a well reasoned and well written order of the Industrial Court. The petition fails and the same is dismissed. Rule is discharged. No order as to costs.