Full Judgment Text
2005:BHC-OS:4235
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
WRIT PETITION NO.1226 OF 2002
Bombay Hospital Trust. ...Petitioner.
Vs.
Miss Rita Minwani & Anr. ...Respondents.
....
Mr. C. U. Singh with Mr. Sanjay Udeshi for the Petitioner.
No.1.
Mr. J. P. Cama with Mr.C. V. Lad for Respondent
.....
CORAM : DR.D.Y.CHANDRACHUD , J.
March 30, 2005.
ORAL JUDGMENT :
The First Respondent was working as a Receptionist
th
cumClerk at the Bombay Hospital. On 28 May 1994, a
th
chargesheet was issued to her alleging that on 20 April 1994 she
was on duty in the first shift between 7 a.m. and 3 p.m. Mr.M. G.
Joshi, an employee who was handling cash at the counter was on
his lunch break between 12 noon and 1 p.m., during which period
the First Respondent was stated to be handling cash at the
counter. When Joshi returned, the First Respondent is stated to
have handed over five receipts of indoor patients with an amount
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2
of Rs.35,500/. However, when Joshi checked the counter
statement, he found that during the time when the First
Respondent was working at the cash counter, she had received
cash from six indoor patients amounting to Rs.45,500/ and that
she had in fact, handed over only five receipts to him. On being
asked to produce cash in the amount of Rs.10,000/ and the sixth
receipt which had been issued to an indoor patient, the First
Respondent was unable to do so. The chargesheet against the
First Respondent was of theft, fraud or dishonesty in connection
with the property of the Hospital and a commission of an act
subversive of discipline.
2. A disciplinary proceeding was then convened. Parties
led evidence and the Enquiry Officer came to the conclusion that
the charge of misconduct was established. The First Respondent
th
was dismissed from service by an order dated 14 November
1994. A reference to adjudication was thereupon made to the
th
Labour Court. The Labour Court by an award dated 29 April
2000 came to the conclusion that the enquiry was not fair and
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3
proper. Thereupon, evidence was adduced by the management in
support of the charge of misconduct. Evidence was also adduced
th
by the First Respondent. By the impugned award dated 14
January 2002, the Labour Court has allowed the reference and
directed that the First Respondent be reinstated in service with full
th
back wages and continuity in service with effect from 11 April
1994.
3. The submission that has been urged on behalf of the
Petitioner is that the entire approach of the Labour Court is
misconceived and contrary to law laid down by the Supreme Court.
The Labour Court by its PartI award has come to the conclusion
that the enquiry was not fair and proper. The management had
availed of an opportunity to lead evidence to prove the substantive
charge of misconduct. The Labour Court, it is submitted, was
required to consider whether the charge of misconduct stood
established on the basis of the evidence which was adduced
before the Court. Counsel submitted that the Labour Court has
had regard to the material before the Enquiry Officer and has then
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4
come to the conclusion both on the basis of that material as well as
the evidence led before it that the charge is not established. The
submission was that the material before the Enquiry Officer could
not possibly have been relied upon under Section 11A of the
Industrial Disputes Act, 1947, once the enquiry has been held not
to be fair and proper.
4. On the other hand, on behalf of the Petitioner, it was
sought to be urged that the judgment of the Labour Court would
show that the finding that the misconduct has not been established
is also arrived at independent of the record before the Enquiry
Officer and that, therefore, the award is sustainable.
5. In order to consider the submissions which have been
urged before the Court, it would, at the outset, be appropriate to
advert to the well settled position in law. In the event that a
disciplinary enquiry that has been held by the management is held
to be vitiated, as in the present case on account of a breach of the
principles of natural justice, or if no enquiry is held, it is open to the
::: Downloaded on - 26/06/2024 07:33:17 :::
5
management to justify the action which has been taken against the
workman by leading evidence to show that the misconduct has
been established. In Neeta Kaplish vs. Presiding Officer, Labour
Court,
(1999) 1 SCC 517, the Supreme Court held that if an
opportunity is availed of by the management and evidence is
adduced on its behalf, the validity of the action taken by it has to be
scrutinised and adjudicated upon on the basis of such fresh
evidence. The Supreme Court held that the record pertaining to
the domestic enquiry would not constitute “fresh evidence” as
those proceedings have already been found by the Labour Court
to be defective. Such record, it was held, “would not constitute
material on record within the meaning of Section 11A as the
enquiry proceedings on being found to be bad, have to be ignored
altogether”. The circumstances in the present case and the award
of the Labour Court have to be scrutinized in the background of
this settled position.
6. After the enquiry was held to be vitiated due to a breach
of the principles of natural justice, the management led evidence of
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6
three witnesses. The first witness was M.G. Joshi, who was
working as an Admission Clerkcum Cashier and during whose
th
absence for lunch on 20 April 1994, the charegesheeted workman
had manned the cash counter. The second witness was a
Supervisor who was also on duty while the third witness was on
duty on the material date at the admission counter. The First
Respondent stepped into the witness box and deposed on her
behalf. In the course of the PartII award, the Labour Court framed
the following issues :
“1. Whether the enquiry is fair and proper?
2. Whether the findings submitted by the enquiry officer
are based on sufficient evidence?
3. Whether the punishment awarded against the
employee is shockingly disproportionate in the gravity
of misconduct commensurate to alleged against her?
4. Does the workman prove that she is entitled for the
relief as prayed for?
5. What award?”
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7
7. Really speaking, the first and the second issues did not
arise before the Labour Court at that stage the first because the
enquiry was already held not to be fair and proper and the second,
since the question as to whether the findings of the Enquiry Officer
were based on sufficient evidence did not remain for consideration
any longer since the enquiry had been held not to be fair and
proper. The question as to whether the findings submitted by the
Enquiry Officer were based on sufficient evidence could have
arisen only if the enquiry was held to be fair and proper which is
not the case here. The Labour Court had to consider at the PartII
stage whether the management had substantiated the charge of
misconduct by the evidence which it led before the Court. Not
even an issue was framed in that regard.
8. Now, if the judgment of the Labour Court is perused, it
would show that initially Issue No.2 was taken up for consideration.
The entire material before the Enquiry Officer was scrutinized in
paragraphs 11 and 12 and the answer to Issue No.2 was given in
the affirmative. The finding in the affirmative, appears to be an
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8
obvious error, but, be that as it may, the Labour Court has
thereafter in paragraph 13 once again adverted to the record of the
disciplinary enquiry. That is also analysed again in paragraph 16
of the judgment. In paragraph 16, the Labour Court held that if the
First Respondent was guilty of fraud and dishonesty, there was no
reason for the Hospital to show any leniency for misappropriation
and that it ought to have filed a criminal complaint. Despite the fact
that there was absolutely no evidence of victimization, the Labour
Court entered a finding that the First Respondent has been
victimized. Thereupon, it was held that the findings of the Enquiry
Officer were not based on sufficient evidence and that there was a
perversity in the findings. Finally, in paragraph 17, the Court held
that the punishment was shockingly disproportionate and that the
First Respondent was entitled to the benefit of doubt. That the
Labour Court was of the view that a benefit of doubt should be
given to the First Respondent would also appear from its analysis
of the evidence of M.G.Joshi in para 16.
9. There is, in my view, a complete misdirection in law on
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9
the part of the Labour Court. In a disciplinary matter, the
jurisdiction of the Labour Court is to consider as to whether the
charge of misconduct is sustainable on a preponderance of
probabilities. If it is, the charge stands proved. The charge does
not have to be proved beyond reasonable doubt as in a criminal
trial. The evidence of the Supervisor and of a coworkman who
was on duty, has been discarded on the ground that it is hearsay
in nature. Apart from the fact that the strict rules of evidence do
not apply to a disciplinary enquiry, the Supervisor in the course of
her evidence stated that she had immediately proceeded to the
Counter and had asked both Mr.Joshi as well as the First
Respondent to check the cash and that the First Respondent
stated that she did not know anything about it. The evidence of the
Supervisor who was present at the spot cannot, therefore, be
regarded as hearsay in nature.
10. In these circumstances, I am of the view that the entire
approach of the Labour Court is in the teeth of the settled position
governing the provisions of Section 11A of the Industrial Disputes
::: Downloaded on - 26/06/2024 07:33:17 :::
10
Act, 1947. The Labour Court despite finding that the enquiry was
defective, relied upon the record of the enquiry. This could not
have been done after the management availed of an opportunity of
leading substantive evidence before the Labour Court. The Labour
Court should have considered the charge of misconduct on the
basis of the evidence before the Court. Not even an issue in that
regard was framed. The Labour Court has misdirected itself by not
applying the test of a preponderance of probabilities which
governs disciplinary proceedings.
11. In these circumstances, I am inclined to accept the
submission of Counsel for the Petitioner that this is a fit case for a
remand back to the Labour Court for a fresh determination in
accordance with law. Counsel appearing on behalf of the First
Respondent drew the attention of the Court to the evidence on the
record and submitted that the finding of the Labour Court can be
sustained even independently on the basis of the evidence which
has emerged. I am of the view that it would not be appropriate for
this Court to carry out this exercise since principally, the
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11
jurisdiction under Section 11A is for the Labour Court to exercise
in accordance with law. That apart, on the basis of the judgment of
the Labour Court as it stands, it is impossible to isolate the
references to the record of the Enquiry Officer or to hold that
independent of that record, the Labour Court would have come to
the same conclusion, had it applied the correct test in law.
12. For these reasons, I am of the view that it would be
appropriate to remand the case. The award of the Labour Court
dated 14th January 2002 is accordingly quashed and set aside.
The Labour Court shall frame appropriate issues for determination
at the PartII stage upon remand and shall endeavour an early
disposal of the reference on the basis of the evidence as it stands.
Parties shall appear before the Labour Court for directions on 11th
April 2005 and the Labour Court is requested to expedite the
disposal of the case preferably by 31st July 2005. For the period
until 31st July 2005 by which date the Labour Court is to dispose
of the reference, the interim relief granted to the First Respondent
under Section 17B of the Industrial Disputes Act, 1947 shall
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12
continue to operate.
13. The Petition is disposed of in the aforesaid terms. No
order as to costs.
.....
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
WRIT PETITION NO.1226 OF 2002
Bombay Hospital Trust. ...Petitioner.
Vs.
Miss Rita Minwani & Anr. ...Respondents.
....
Mr. C. U. Singh with Mr. Sanjay Udeshi for the Petitioner.
No.1.
Mr. J. P. Cama with Mr.C. V. Lad for Respondent
.....
CORAM : DR.D.Y.CHANDRACHUD , J.
March 30, 2005.
ORAL JUDGMENT :
The First Respondent was working as a Receptionist
th
cumClerk at the Bombay Hospital. On 28 May 1994, a
th
chargesheet was issued to her alleging that on 20 April 1994 she
was on duty in the first shift between 7 a.m. and 3 p.m. Mr.M. G.
Joshi, an employee who was handling cash at the counter was on
his lunch break between 12 noon and 1 p.m., during which period
the First Respondent was stated to be handling cash at the
counter. When Joshi returned, the First Respondent is stated to
have handed over five receipts of indoor patients with an amount
::: Downloaded on - 26/06/2024 07:33:17 :::
2
of Rs.35,500/. However, when Joshi checked the counter
statement, he found that during the time when the First
Respondent was working at the cash counter, she had received
cash from six indoor patients amounting to Rs.45,500/ and that
she had in fact, handed over only five receipts to him. On being
asked to produce cash in the amount of Rs.10,000/ and the sixth
receipt which had been issued to an indoor patient, the First
Respondent was unable to do so. The chargesheet against the
First Respondent was of theft, fraud or dishonesty in connection
with the property of the Hospital and a commission of an act
subversive of discipline.
2. A disciplinary proceeding was then convened. Parties
led evidence and the Enquiry Officer came to the conclusion that
the charge of misconduct was established. The First Respondent
th
was dismissed from service by an order dated 14 November
1994. A reference to adjudication was thereupon made to the
th
Labour Court. The Labour Court by an award dated 29 April
2000 came to the conclusion that the enquiry was not fair and
::: Downloaded on - 26/06/2024 07:33:17 :::
3
proper. Thereupon, evidence was adduced by the management in
support of the charge of misconduct. Evidence was also adduced
th
by the First Respondent. By the impugned award dated 14
January 2002, the Labour Court has allowed the reference and
directed that the First Respondent be reinstated in service with full
th
back wages and continuity in service with effect from 11 April
1994.
3. The submission that has been urged on behalf of the
Petitioner is that the entire approach of the Labour Court is
misconceived and contrary to law laid down by the Supreme Court.
The Labour Court by its PartI award has come to the conclusion
that the enquiry was not fair and proper. The management had
availed of an opportunity to lead evidence to prove the substantive
charge of misconduct. The Labour Court, it is submitted, was
required to consider whether the charge of misconduct stood
established on the basis of the evidence which was adduced
before the Court. Counsel submitted that the Labour Court has
had regard to the material before the Enquiry Officer and has then
::: Downloaded on - 26/06/2024 07:33:17 :::
4
come to the conclusion both on the basis of that material as well as
the evidence led before it that the charge is not established. The
submission was that the material before the Enquiry Officer could
not possibly have been relied upon under Section 11A of the
Industrial Disputes Act, 1947, once the enquiry has been held not
to be fair and proper.
4. On the other hand, on behalf of the Petitioner, it was
sought to be urged that the judgment of the Labour Court would
show that the finding that the misconduct has not been established
is also arrived at independent of the record before the Enquiry
Officer and that, therefore, the award is sustainable.
5. In order to consider the submissions which have been
urged before the Court, it would, at the outset, be appropriate to
advert to the well settled position in law. In the event that a
disciplinary enquiry that has been held by the management is held
to be vitiated, as in the present case on account of a breach of the
principles of natural justice, or if no enquiry is held, it is open to the
::: Downloaded on - 26/06/2024 07:33:17 :::
5
management to justify the action which has been taken against the
workman by leading evidence to show that the misconduct has
been established. In Neeta Kaplish vs. Presiding Officer, Labour
Court,
(1999) 1 SCC 517, the Supreme Court held that if an
opportunity is availed of by the management and evidence is
adduced on its behalf, the validity of the action taken by it has to be
scrutinised and adjudicated upon on the basis of such fresh
evidence. The Supreme Court held that the record pertaining to
the domestic enquiry would not constitute “fresh evidence” as
those proceedings have already been found by the Labour Court
to be defective. Such record, it was held, “would not constitute
material on record within the meaning of Section 11A as the
enquiry proceedings on being found to be bad, have to be ignored
altogether”. The circumstances in the present case and the award
of the Labour Court have to be scrutinized in the background of
this settled position.
6. After the enquiry was held to be vitiated due to a breach
of the principles of natural justice, the management led evidence of
::: Downloaded on - 26/06/2024 07:33:17 :::
6
three witnesses. The first witness was M.G. Joshi, who was
working as an Admission Clerkcum Cashier and during whose
th
absence for lunch on 20 April 1994, the charegesheeted workman
had manned the cash counter. The second witness was a
Supervisor who was also on duty while the third witness was on
duty on the material date at the admission counter. The First
Respondent stepped into the witness box and deposed on her
behalf. In the course of the PartII award, the Labour Court framed
the following issues :
“1. Whether the enquiry is fair and proper?
2. Whether the findings submitted by the enquiry officer
are based on sufficient evidence?
3. Whether the punishment awarded against the
employee is shockingly disproportionate in the gravity
of misconduct commensurate to alleged against her?
4. Does the workman prove that she is entitled for the
relief as prayed for?
5. What award?”
::: Downloaded on - 26/06/2024 07:33:17 :::
7
7. Really speaking, the first and the second issues did not
arise before the Labour Court at that stage the first because the
enquiry was already held not to be fair and proper and the second,
since the question as to whether the findings of the Enquiry Officer
were based on sufficient evidence did not remain for consideration
any longer since the enquiry had been held not to be fair and
proper. The question as to whether the findings submitted by the
Enquiry Officer were based on sufficient evidence could have
arisen only if the enquiry was held to be fair and proper which is
not the case here. The Labour Court had to consider at the PartII
stage whether the management had substantiated the charge of
misconduct by the evidence which it led before the Court. Not
even an issue was framed in that regard.
8. Now, if the judgment of the Labour Court is perused, it
would show that initially Issue No.2 was taken up for consideration.
The entire material before the Enquiry Officer was scrutinized in
paragraphs 11 and 12 and the answer to Issue No.2 was given in
the affirmative. The finding in the affirmative, appears to be an
::: Downloaded on - 26/06/2024 07:33:17 :::
8
obvious error, but, be that as it may, the Labour Court has
thereafter in paragraph 13 once again adverted to the record of the
disciplinary enquiry. That is also analysed again in paragraph 16
of the judgment. In paragraph 16, the Labour Court held that if the
First Respondent was guilty of fraud and dishonesty, there was no
reason for the Hospital to show any leniency for misappropriation
and that it ought to have filed a criminal complaint. Despite the fact
that there was absolutely no evidence of victimization, the Labour
Court entered a finding that the First Respondent has been
victimized. Thereupon, it was held that the findings of the Enquiry
Officer were not based on sufficient evidence and that there was a
perversity in the findings. Finally, in paragraph 17, the Court held
that the punishment was shockingly disproportionate and that the
First Respondent was entitled to the benefit of doubt. That the
Labour Court was of the view that a benefit of doubt should be
given to the First Respondent would also appear from its analysis
of the evidence of M.G.Joshi in para 16.
9. There is, in my view, a complete misdirection in law on
::: Downloaded on - 26/06/2024 07:33:17 :::
9
the part of the Labour Court. In a disciplinary matter, the
jurisdiction of the Labour Court is to consider as to whether the
charge of misconduct is sustainable on a preponderance of
probabilities. If it is, the charge stands proved. The charge does
not have to be proved beyond reasonable doubt as in a criminal
trial. The evidence of the Supervisor and of a coworkman who
was on duty, has been discarded on the ground that it is hearsay
in nature. Apart from the fact that the strict rules of evidence do
not apply to a disciplinary enquiry, the Supervisor in the course of
her evidence stated that she had immediately proceeded to the
Counter and had asked both Mr.Joshi as well as the First
Respondent to check the cash and that the First Respondent
stated that she did not know anything about it. The evidence of the
Supervisor who was present at the spot cannot, therefore, be
regarded as hearsay in nature.
10. In these circumstances, I am of the view that the entire
approach of the Labour Court is in the teeth of the settled position
governing the provisions of Section 11A of the Industrial Disputes
::: Downloaded on - 26/06/2024 07:33:17 :::
10
Act, 1947. The Labour Court despite finding that the enquiry was
defective, relied upon the record of the enquiry. This could not
have been done after the management availed of an opportunity of
leading substantive evidence before the Labour Court. The Labour
Court should have considered the charge of misconduct on the
basis of the evidence before the Court. Not even an issue in that
regard was framed. The Labour Court has misdirected itself by not
applying the test of a preponderance of probabilities which
governs disciplinary proceedings.
11. In these circumstances, I am inclined to accept the
submission of Counsel for the Petitioner that this is a fit case for a
remand back to the Labour Court for a fresh determination in
accordance with law. Counsel appearing on behalf of the First
Respondent drew the attention of the Court to the evidence on the
record and submitted that the finding of the Labour Court can be
sustained even independently on the basis of the evidence which
has emerged. I am of the view that it would not be appropriate for
this Court to carry out this exercise since principally, the
::: Downloaded on - 26/06/2024 07:33:17 :::
11
jurisdiction under Section 11A is for the Labour Court to exercise
in accordance with law. That apart, on the basis of the judgment of
the Labour Court as it stands, it is impossible to isolate the
references to the record of the Enquiry Officer or to hold that
independent of that record, the Labour Court would have come to
the same conclusion, had it applied the correct test in law.
12. For these reasons, I am of the view that it would be
appropriate to remand the case. The award of the Labour Court
dated 14th January 2002 is accordingly quashed and set aside.
The Labour Court shall frame appropriate issues for determination
at the PartII stage upon remand and shall endeavour an early
disposal of the reference on the basis of the evidence as it stands.
Parties shall appear before the Labour Court for directions on 11th
April 2005 and the Labour Court is requested to expedite the
disposal of the case preferably by 31st July 2005. For the period
until 31st July 2005 by which date the Labour Court is to dispose
of the reference, the interim relief granted to the First Respondent
under Section 17B of the Industrial Disputes Act, 1947 shall
::: Downloaded on - 26/06/2024 07:33:17 :::
12
continue to operate.
13. The Petition is disposed of in the aforesaid terms. No
order as to costs.
.....
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