Supreme Steels Vs. Shri D.H. Deshmukh and Dadarao Sarvaji Sukhdeve - Court Judgment

Excerpt:
- bombay stamp act, 1958. schedule 1, article 36: [y.r. meena, cj & d.a. mehta & a.s. dave, jj] deed of mortgage liability to pay stamp duty held, any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letters of hypothecation executed by farmers for agricultural and land development purposes in favour of all commercial bank etc. are entitled to remission of entire duty chargeable under the stamp act with effect on and from 1.4.1979 under government notification dated 23.3.1979. thus, where loan was granted by bank of india under agricultural finance scheme towards purchase of air compressors, drilling rods and other accessories. use of the air compressors, drilling rods and other accessories in case of applicant who is a farmer can only be for purpose of drilling a bore-well for purpose of irrigation in process of carrying on agricultural activities. thus, it is apparent that loan was availed of by applicant-farmer for agricultural and land development purposes because a bore-well would go to increase the utility of agricultural land by ensuring round the year irrigation. the instrument in question would therefore fall within scope of complete remission granted to instrument of mortgage under government notification dated 23.3.1979 and hence not liable to stamp duty under article 36 of schedule i of the act. - 10. records clearly show that the respondent is the first person to approach labour court in the matter with grievance that his services were terminated on 03.06.1992. in his ulpa complaint no. the law on the point is well settled right from the judgment of hon'ble apex court in case of shankar chakravati v. 9, found that the employee was admittedly not well on account of paralysis and he also took some medical treatment, as was evident from the medical certificates.b.p. dharmadhikari, j.1. petitioner - employer has challenged the order dated 16.02.2005 passed by the industrial court, nagpur in complaint ulp no. 282/1996 declaring that, by issuing charge sheet dated 10.01.1996, it had indulged in unfair labour practice falling under item 9 of schedule iv of the maharashtra recognition of trade union and prevention of unfair labour practices act, 1971 (hereinafter referred to as 'the mrtu & pulp act' for short).2. the facts on record reveal that the respondent no. 2 employee did not report for duties from 07.11.1991 and filed ulpa complaint vide ulp complaint no. 379/1992, before the 2nd labour court, nagpur contending that he was on esi leave and has been orally terminated on 03.06.1992. he also sought interim relief by moving application under section 30[2] of the mrtu & pulp act and, labour court on 17.05.1995 directed petitioner - employer to provide him work. on 10.01.1996, the employer issued charge sheet alleging that employee was unauthorizedly absent from 05.11.1991 and filed a false case against the company before the labour court, thereby committing misconduct under clause 24 [f], [h] and [l] of the model standing orders.3. the employee challenged this charge sheet as an unfair labour practice falling under item 9 in ulpa complaint no. 282/1996. the employer filed his reply refuting the allegations and then the employee lead oral evidence. the petitioner employer did not find it necessary to enter the witness box. on the basis of the material produced and proved, the industrial court delivered the impugned order on 16.02.2005.4. in this background, i have heard shri bhoot, learned counsel for petitioner - employer, shri kakani, learned counsel for respondent no. 2 - employee. learned a.g.p. appeared for respondent no. 1.5. learned counsel for petitioner has contended that the industrial court has overlooked the scope of complaint before it and has recorded findings on case not pleaded or proved. according to him, unfair labour practice falling under item 9, was sought to be made out by showing that, the employer could not have conducted the enquiry on the allegations of absentism, when employee was on esi leave and under medical treatment. he states that, leaving this limited contention aside, the industrial court has ventured into other fields and has made out a new case which was never pleaded. according to him, as it was the case requiring finding of unfair labour practice, appropriate pleadings on record were necessary and in absence of those pleadings, the industrial court could not have considered either such case or evidence if any, in relation thereto. to emphasize the importance of pleadings in such circumstances, he has relied upon the judgment of hon'ble apex court reported at : 2004 [101] flr 219 mukand ltd. v. mukand staff and officers' association, particularly paragraph no. 37. he has stated that because of this exercise undertaken by the industrial court, employer did not get opportunity to address that court to show that charge sheet was served within reasonable time, or then also to show that provisions of section 78 [1][d][i] of the bombay industrial relations act, were only directory. he argues that, because of its conclusions in this respect, the industrial court was unduly prejudiced and ultimately decided the complaint in favour of respondent. to show that provisions of section 78 [1][d][i] of the bombay industrial relations act, are only directory he has relied upon the division bench judgment of this court reported at : 1994 [1] bcr 593 maniram nayansingh thapa and ors. v. richardson and cruddas [1972] ltd..6. he further states that, though charge sheet was in relation to absence from 05.11.1991, ultimately the enquiry officer has recorded a finding only for period upto 31.03.1993, as the name of employee was appearing in muster only upto the said date and enquiry officer has not gone into the absence beyond 31.03.1993. he further states that, the enquiry became necessary only after labour court on 17.05.1995 issued directions to provide work to respondent. according to him, effect of enquiry on proceeding before the labour court is totally irrelevant in present matter and need not to be gone into. he argues that, the observations made by the industrial court about alleged absence of employer/employee relationship between the parties are uncalled for, and will definitely prejudice the labour court while adjudicating the complaint ulpa no. 379/1992. he therefore, states that, the order of industrial court needs to be scrutinized only in the light of unfair labour practice as pleaded and as that unfair labour practice has not been made out, the complaint deserves to be dismissed and petition should be allowed. he has also invited attention of the court to certain findings recorded by the enquiry officer in this respect.7. learned counsel appearing on behalf of the respondent - employee has stated that, to ascertain the exact grievance made before the labour court reference to only part of complaint ulpa no. 286/1992 is not sufficient and he has invited the attention of the court to other paragraph to show that entire history was placed in that complaint before the industrial court, so as to enable it to gather impact of the charge sheet dated 10.01.1996 on proceeding before the labour court. he points out that the employee was on esi leave from 7.11.1991 and attempted to report for work, after he was declared fit by the esi authorities. he states that, when he was not allowed to join the duties, ulpa complaint no. 379/1992 was required to be filed. he further states that the intimation of absence and certificate were submitted to the employer. he has invited attention to the stand of the employer before the labour court, that the employee had voluntarily abandoned the service and there was no termination. in this background, he has invited attention to the charge sheet as issued to contend, that the inconsistent or contrary pleas are being raised by the employer. he has invited attention to order dated 17.05.1995 passed by the labour court in ulpa complaint no. 379/1992, to urge that, the labour court has found it necessary to consider the story of employee about termination on 03.06.1992 or that to his abandonment of services, as pleaded by the employer after recording evidence. he argues that charge sheet was only issued with ill intentions. in order to show that such inconsistent stand are not available, he has relied upon the judgment reported at 2008 (iii) clr 762 deepak ganpat tari v. new excelsior theatre pvt. ltd. and ors..8. he further states that name of petitioner was not appearing in muster roll or in seniority list and the said name was later on added. according to him, as this absence of name of respondent later on has been proved on record by inserting such name, reemployment has been given to the respondent and after reemployment, enquiry into the alleged misconduct was therefore not open. to support his contention, he has placed reliance upon the judgment reported at 2006 [1] bom.l.c. 172 abdul kalam abdul rashid v. state of maharashtra and anr..9. in reply arguments, learned counsel for petitioner has stated that the employee never informed the employer about his sickness or esi treatment and infact during said period in february, 1992 he came to employer's premises and participated in election. he argues that all these facts are considered by the enquiry officer while conducting the enquiry pursuant to the charge sheet dated 10.01.1996, and hence the contention that he was on sick leave cannot be accepted. he has also invited attention to regulation no. 57 of esi regulations to show how certificate of unfitness needs to be issued by medical authorities. he further points out that in the impugned order the industrial court has only given declaration and no positive direction has been issued to the employer. he therefore, argues that the impugned order of industrial court dated 16.02.2005 cannot be sustained and needs to be quashed and set aside.10. records clearly show that the respondent is the first person to approach labour court in the matter with grievance that his services were terminated on 03.06.1992. in his ulpa complaint no. 379/1992, he has pointed out his sickness and treatment. employer has while replying to prayer of employee for grant of interim relief in paragraph no. 2 not disputed that the employee had suffered from attack of paralysis. it also denied that while terminating services of employee, management did not conduct any departmental enquiry. this reply was filed some time in september, 1992. after considering the grievances made by the employee, and this reply of the employer on 17.05.1995 the labour court passed an order and held that the employee was entitled to do work with the employer, and directed petitioner - employer to allow him to resume his duties. in this order, the labour court has found that the employment of respondent with petitioner was not in dispute, and respondent was contending that his services were orally terminated on 03.06.1992 without complying with the mandatory provisions of section 25[f] of the industrial disputes act. the employer was stating that there was no termination and employee himself had left the job and did not report for duties from 05.11.1991. because of this rival contentions, the labour court found that, the question before it was whether it was abandonment of service, termination of service and that question could not have been resolved unless and until both the parties lead evidence on merits. it also found that, it would have jurisdiction to grant reinstatement only if the employee was found to be terminated. from record, it is apparent that this direction issued by the labour court to provide work to present respondent was implemented by the employer. charge sheet dated 10.01.1996 needs to be looked into in this background.11. in charge sheet after mentioning his uninformed and unauthorized absence from 05.11.1991, employer has stated that letters were sent to him to report on work, but those letters were not replied to, and a registered a.d. letter was sent to him on 29.11.1991, but that letter was also not accepted, and thereafter he filed false case and remained absent. though it is mentioned that, the employee has committed misconduct under clause 24 [f], [h] and [l] of the model standing orders the employer has decided to hold enquiry against him.12. the employee then approached industrial court in ulpa complaint no. 282/1996 and in paragraph no. 1 of the ulpa complaint, after mentioning his previous service, oral termination on 03.06.1992 and interim order of labour court dated 17.05.1995, the employee has mentioned that, he was attending duties on 13.07.1995, he was placed under suspension on the ground of his absence. paragraph no. 2 opens with grievance that, though there was an order he was not taken on duty and was served with letter of suspension. it was further pleased that, he was not paid any suspension allowance and was directed to mark his attendance regularly. challenge to that order in ulpa complaint no. 822/1995 and payment of suspension allowance thereafter is pointed out, and it is stated that, it was on account of directions of industrial court dated 19.12.1995. thereafter issuance of charge sheet dated 10.01.1996 has been pointed out. in paragraph no. 3 filing of earlier complaint on 03.07.1992 i.e. ulpa complaint no. 379/1992, the fact that esi treatment from 07.11.1991 disclosed that, when ulpa complaint, attending election process on 22.01.1992 and fitness certificate issued by the esi medical authorities on 02.06.1992 are pleaded. thereafter, it has been stated that on 03.06.1992 when he went to join duties with fitness certificate, he was not taken on duty and therefore, after waiting for sufficient time he approached the labour court in ulpa complaint no. 379/1992. then the orders passed by the labour court on 17.05.1995 are also mentioned.13. in paragraph no. 4 issuance of charge sheet has been again pointed out and it has been stated that moot question, whether there was abandonment of services or there was termination was pending before the labour court and hence, the enquiry officer could not have decided that issue. it is mentioned that, as the employee was on esi leave, the question could not have been looked into by the enquiry officer. the grievance about haste shown by the enquiry officer also appears in paragraph no. 4 and in this background, in paragraph no. 5, it has been stated that, charge sheet issued was contrary to the provisions of law. the grievance of non payment of subsistence allowance is also made in it. it is also pointed out that, when esi certificate was produced on record to show that employee was on esi leave, the enquiry officer or management could not have treated the employee as absent. in this background in paragraph no. 6 of ulp complaint before industrial court, employee has pleaded that the management does not have any right to conduct enquiry against him on allegations of absentism, when he was on esi leave and under medical treatment. the unfair labour practice under item 9 of schedule iv of the act no. 1 of 1972 has been invoked in this background. leaned counsel for petitioner has tried to urge that it is paragraph no. 6 which only shows or describes unfair labour practice, however, such reading of the complaint is not possible. the said paragraph also show that the allegations leveled in the charge sheet were contrary to the legal provision and hence management does not have any right to conduct any enquiry through enquiry officer, when the matter was pending. it is therefore, obvious that the employee had pointed out that very same question was pending before the labour court and hence the question could not have been looked into by the management through the enquiry officer.14. shri bhoot, learned counsel for petitioner has relied upon the apex court judgment in the case of mukand ltd. v. mukand staff and officers' association (supra), paragraph no. 37 to show how absence of pleadings in such circumstances needs to be viewed. the law on the point is well settled right from the judgment of hon'ble apex court in case of shankar chakravati v. britannia biscuit company : air 1979 sc 1652 and the hon'ble apex court has held that when there are no pleadings, any evidence on such fact or ground which has not been pleaded cannot be looked into. the consideration of complaint above shows that the pendency of matter before the labour court, the fact of esi treatment and immunity flowing therefrom were pressed into service before the industrial court to urge that in this background, employer could not have conducted any departmental enquiry and charge sheet dated 10.01.1996, therefore constituted unfair labour practice.15. perusal of the impugned order shows that in paragraph no. 8, the industrial court has considered the contention about reliability of documents 3a to 3i and it has also recorded contention of employer, that merely because name of employee was not appearing in muster produced with exh.19, that was not sufficient to show that the employee was not in its employment. in other words, the effort was to show the employeremployee relationship and main cause that scrutiny or exercise was unnecessary, because admittedly earlier the respondent was in employment and before labour court question of abandonment or of termination was pending. by interim order of labour court, the employee was provided work and hence the question whether there was such relationship or there was no such relationship was really not material, at that stage.16. the industrial court in paragraph no. 9, found that the employee was admittedly not well on account of paralysis and he also took some medical treatment, as was evident from the medical certificates. however, it also recorded a finding that there was no cogent evidence led to show that he had applied for any medical leave to his employer, or had given intimation about his inability to attend duties. thereafter it found that inspite of plea of abandonment of services, the petitioner / employer had framed charge of absentism since 05.11.1991. thus it has found that the issue which was required to be looked into in ulpa complaint no. 379/1992, was being inquired into by the employer by departmental enquiry. the observations made in paragraph no. 10 considering the effect of interim order of labour court and then in paragraph no. 11 and 12, it has attempted to find out whether, charge sheet was issued bonafide. while undertaking that exercise, it found that normally charge sheet is to be issued within reasonable time and here for absence from 05.11.1991 the charge sheet was issued on 10.01.1996. to support its finding that charge sheet needed to be issued within a reasonable time it mentioned provisions of section 78 [1][d][i] of the bombay industrial relations act, it is to be noted that in paragraph no. 12 itself, the industrial court has noticed that the said provisions were only directory. the judgment of division bench of this court in the case of maniram nayansingh thapa and ors. (supra), which holds that the provision of said section are only directory, therefore need not to be looked into. thereafter, in paragraph no. 13 it has proceeded to observe that, charge sheet has been issued when there was no employer - employee relationship between the parties. as i have found above, the question really was not very relevant and the respondent approached industrial court for relief against the employer.17. the industrial court has not accepted the contention that employee was on esi leave and therefore, charge sheet could not be issued to him, because it found that there was absence of proof of knowledge to employer about factum of esi leave. again here i find that the real question was whether such knowledge to employer was required under law or not. but it has not been looked into. in view of its finding, that charge sheet was not issued within reasonable time and that the parties were before labour court in complaint and the issue was also involved there, it has found that the unfair labour practice under item 9 was made out.18. consideration of facts before it by the industrial court is neither erroneous nor perverse. it is clear that the question was required to be looked into by the labour court and the employer, therefore, could not have decided to conduct the enquiry on very same issue. the findings reached by the enquiry officer definitely prejudice the trial of issue by the labour court. it was open to the employer to withdraw the alleged oral termination or than to see that ulpa complaint is disposed of as infructuous, and then to hold departmental enquiry with leave of the court. however, no such exercise has been undertaken. effort only was to defeat the enquiry to be made by the labour court in pending complaint before it. the industrial court has therefore, rightly considered the said aspects.19. the learned counsel appearing for respondent has attempted to show that the employer again took contrary pleas about abandonment from service voluntarily and his termination from service for misconduct. in present facts, employer has taken a plea of abandonment of service and plea of termination of service was taken by the respondent employee. reliance on judgment in case of deepak ganpat tari v. new excelsior theatre (supra), is therefore irrelevant. the question whether enquiry conducted was proper or not, really does not arise in present matter. because main issue is pending before the labour court in ulpa complaint no. 379/1992. it is an admitted position that the said ulpa complaint is still pending. the case law i.e. in the case of abdul kalam abdul rashid .v. state of maharashtra and anr. (supra), is again not relevant, because, the question of creation of fresh relationship does not arise in the present matter. the relationship was reestablished because of interim orders passed by the labour court, after prima facie accepting the grievance of employee that he was earlier in employment and was not permitted to join the duties from 03.06.1992. in view of this judicial order, mention of name of employee in particular muster or its non mention in other muster or then absence of his name in seniority list, are not determinative in any way, and no finding about the employeremployee relationship can be based on these aspects.20. in the circumstances, as there is no jurisdictional error or perversity, no case warranting any interference in writ jurisdiction is made out. it is made clear that the issue is pending before the competent court and the competent court has to decide it in accordance with the law. the enquiry conducted by the employee and observations made by industrial court in the impugned order or then observations made by this court in the matter, shall not influence the labour court while deciding the said issue and the said issue shall be looked into independently by it.21. writ petition is accordingly dismissed. rule discharged, with no order as to costs.