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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  11807 OF 2016 (Arising out of S.L.P.(C) No. 26366 of 2016)

JORSINGH GOVIND VANJARI          ...  APPELLANT (S)

VERSUS

DIVISIONAL CONTROLLER MAHARASHTRA, STATE ROAD TRANSPORT CORPORATION, JALGAON DIVISION, JALGAON           ... RESPONDENT (S)

J  U  D  G  M  E  N  T

KURIAN, J.:

Leave granted.  

2. The  appellant,  aggrieved  by  the  termination  from

service,  raised  an  industrial  dispute  leading  to  the  award  in

Reference IDA No. 42 of 2007 dated 20.06.2013 of the Labour

Court,  Jalgaon,  Maharashtra.  The Labour  Court  set  aside  the

dismissal order dated 26.08.2002. However, noticing that the

appellant had already crossed the date of superannuation, viz.,

31.05.2005, it was ordered that from the date of termination to

the date of superannuation, the appellant would be entitled to

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all service benefits except back wages which were limited to 50

per cent.

3. The respondent challenged the award before the High

Court  of  Bombay.  As  per  the  impugned  judgment  dated

08.07.2015 in Writ Petition No. 3268 of 2014, the award was

modified  by  granting  only  a  one-time  compensation  of  an

amount  equivalent  to  50  per  cent  of  the  back  wages  as

awarded by the Labour Court. Thus aggrieved, the appellant is

before this Court.

4. The  charge  against  the  appellant  was  that  he  had

collected fare from six passengers while he was working as a

conductor on 06.09.2001 in bus No.  MH-20/J-4714 on its  trip

from  Chalisgaon  to  Patanagaon,  without  issuing  tickets.  The

inspecting team also found that there was a shortage of cash in

his cash bag. A domestic inquiry followed and the inquiry officer

found  the  appellant  guilty,  and  on  that  basis,  he  was

terminated from service.

5. Before the Labour Court, four issues were framed:

“1. Does  the  second  party  prove  that  the departmental  enquiry  held  against  him  is unjust,  unfair,  improper  and  against  the principles of natural justice, and the findings of Enquiry Officer are perverse?

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2. Does  the  second  party  prove  that,  the termination of his service is illegal, violating the provisions of law?

3. Whether the second party is entitled for the relief as sought for?

4. What order?”

6. The Labour Court found that:

“…  As  the  alleged  passengers  have  not  been examined, an opportunity of cross examining them is not availed to the second party. The one and the same  authority  has  issued  charge  sheet, conducted enquiry and suggested the punishment. Accordingly,  serious  prejudice  is  caused  to  the second party. One and the same authority is not expected to play the role of  Enquiry Officer and disciplinary authority, which is inconsistent to the provisions  of  law.  Accordingly,  with  biased  mind enquiry  has  been  conducted.  Despite  of  not examining  the  witnesses  the  enquiry  officer considered their statements recorded on the spot and concluded that, charges of misconduct have been  proved  against  the  second  party.  Besides this, the reporter has not stated before the Enquiry Officer  in  terms  of  his  report.  Accordingly,  the enquiry  officer  has  recorded  his  findings  on  the basis  of  no evidence and therefore,  the findings recorded  by  the  Enquiry  Officer  appears  to  be perverse one. …”  

7.  On issue no.2, it was noted that:   

“… in the light of findings on issue no.1 that, the enquiry  held  against  the  Complainant  was  fair, proper and legal and the findings of enquiry officer are perverse, then it is for first party to prove the alleged charges of misconduct before this court. It is pertinent to note that, in their written statement the first  party  has  not  made prayer  that,  if  the

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court  arrived  at  the  conclusion  that  the  enquiry held against the Complainant was not fair, proper and legal  and the findings of enquiry officer are perverse, then they may be permitted to prove the misconduct of second party before this  court by leading  evidence.  But,  they  failed  to  do  so.  No witness is examined by the first party. Hence, the alleged misconduct of second party has not been proved before this court.”

8. Still  further,  the  Labour  Court  proceeded  further  and

found that:

“14. In  a  case  before  me,  testified  evidence  of second party at Exh. U-8 & U-13 reflect that, he was working with first party as a bus conducted since 05.04.1971 at Chopda Depot. Thereafter he was transferred to Amalner Depot and Chalisgaon Depot.  However,  without  considering  his meritorious clean and unblemished service record, first  party  has  dismissed  him  from  service  vide order dated 26.08.2002. On 06.09.2001 when he was performing his duties as a conductor on bus no.  MH-20/J-4714  which  is  proceeding  from Chalisgaon  to  Patanagaon,  at  that  time  his  bus was checked by Inspecting squad at Balziri Phata and it  is  alleged against  him that  6  passengers were  found  travelling  in  the  said  bus  without tickets, though fare amount was paid by them to the second party-conductor. Those 6 persons were illiterate persons and inspecting squad as per their whims recorded their statements, as well  as S.T. cash  was  found  less  by  Rs.56.  Had  the  second party actually recovered the amount from the very six passengers, then Rs.36/- ought to have been found excess in his cash bag. However, contrary to this, amount was found less with the second party and hence Respondent by making false allegations issued  false  charge  sheet,  conducted  enquiry. Principles  of  natural  justice  have  not  been observed  by  the  first  party.  The  alleged

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passengers  have  not  been  examined  and  an opportunity  of  cross  examining  to  them  is  not availed to the second party. The one and the same authority  has  issued  charge  sheet,  conducted enquiry  and  suggested   the  punishment. Accordingly,  serious  prejudice  is  caused  to  the second party. Accordingly, with bias mind enquiry has  been  conducted.  Instead  of  examining  the witnesses  the  enquiry  officer  considered  their statements  recorded on the spot  and concluded that,  charges  of  misconduct  have  been  proved against the second party. Besides this, the reporter has not stated before Enquiry Officer in terms of his report. Report is not exhibited and duly proved before  the  Enquiry  Officer,  even  though  enquiry officer  relied  on  it  and  concluded  that,  alleged misconducts have been proved against the second party. Thus, by violating the principles of natural justice,  enquiry  has  been  conducted  and  the findings drawn by the enquiry officer are perverse. On  the  basis  of  said  report  punishment  of dismissal  has  been  imposed  which  is  extremely harsh and disproportionate. This oral testimony of the second party has not  been shattered during cross examination. 15. After cross-examining the second party,  the Respondent has an opportunity to lead evidence in support  of  the  chargers  levelled  against  the Complainant.  Once, findings of the enquiry officer are held perverse by this court, then burden lies on Respondent to prove the misconduct by leading evidence before this court. But, instead of leading evidence in support of alleged misconduct of the second  party,  first  party  did  not  lead  any  oral evidence before this  court,  on the contrary filed pursis  of  closing  their  evidence  at  Exh.  C-20. Therefore, it is crystal clear that, the misconduct of the second party is not proved before this Court by  the  first  party.  Therefore,  it  can  safely  be inferred  that,  the  charges  levelled  against  the second party are false and the said charge sheet was issued with an intention to victimize him. As

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the charges levelled against the second party are not proved either in the departmental enquiry or before this court, hence, the dismissal order issued by  the  first  party  is  nothing  but  in  colourable exercise of employer’s right, by falsely implicating the  Complainant  in  a  criminal  case  on  false evidence,  for  patently  false  reasons,  in  utter disregard of the principles of natural justice in the conduct  of  domestic  enquiry  and  with  undue haste, amounting to unfair labour practice. Hence, I hold that the dismissal of second party is illegal, violating the provisions of law.”

(Emphasis supplied) 9. On issue no.3, it was held as follows:

“17. As to issue no.3:- So far as relief sought by the second party is concerned, the Ld. Counsel for second party has submitted that, the second party has attained the age of retirement on 31.05.2005 hence he may be given all the retiral benefits from the date of his illegal dismissal. It is pertinent to note  that,  in  his  statement  of  claim the second party  has stated that,  he will  be going to  retire from service on 31.05.2005. It means, already the second party has attained the age of retirement in the  year  2005.  Once  his  termination  is  held  as illegal, second party is entitled for reinstatement with  continuity  of  service  and  back  wages. However, the second party has attained the age of superannuation  i.e.  58  years  on  31.05.2005. Accordingly, had he been in service then he would have  been  retired  on  31.05.2005.  The  charges levelled  in  the  charge  sheet  are  not  proved  in enquiry  or  before  this  Court,  therefore,  second party is entitled for all the benefits, as if he was in employment  of  the  first  party-corporation. Therefore, the Ld. Counsel for second party argued that, despite directing reinstatement of the second party, the first party be directed to avail  him all the monetary benefits till his superannuation and dues admissible as per rules. Considering all these aspects of attaining the age of superannuation by

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the second party,  it  will  be proper to mould the relief  as sought by him to the extent of availing him  all  the  monetary  benefit  till  his superannuation, which are admissible as per law. Once, it is held that, the findings of enquiry officer are perverse and first party has illegally dismissed him from service, therefore, certainly the second party is entitled for the relief. …”.

 10. Thus,  the  Reference  was  answered  in  favour  of  the

appellant  setting  aside  the  dismissal  order.  However,  taking

note  of  the  fact  that  the  appellant  had  crossed  the  age  of

superannuation, instead of reinstatement,  50 per cent of the

back  wages  from  the  date  of  termination  till  the  date  of

superannuation with all other service benefits were granted.

11. The High Court, in the impugned order, took the view

that the Labour Court went wrong in deciding the preliminary

issue concerning the fairness  of  the inquiry  and deciding all

further issues in one stroke. To quote the relevant consideration

which appears at paragraph-12 of the impugned judgment:

“12. It is apparent that the Labour Court has erred in deciding  the  preliminary  issues  concerning  the fairness  of  the  enquiry  and  the  findings  of  the enquiry  officer  along  with  all  the  issues  while delivering  the  impugned judgment.  The  procedure laid down in law, which has been considered by this Court and followed in the case of Maharashtra State Roadways  Transport  Corporation,  Beed  Vs.  Syed Saheblal  Syed  Nijam  [2014  III  CLR  547],  has  not been followed by the Labour Court. It could not have decided the preliminary issues along with all the rest

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of  the  issues  in  one  stroke  while  delivering  the impugned  award.  For  this  reason  alone,  the impugned award is rendered unsustainable.”

12. In that view of the matter, it was held that the appellant

would  not  be  entitled  to  the  gratuity  but  a  one-time

compensation of an amount equivalent to 50 per cent of the

back  wages,  would  be  just  and  proper.  To  quote  the  relief

portion:

“17. This  Writ  Petition  is,  therefore,  partly allowed. The impugned award is modified by setting aside clause 1 and 2 of the order and by granting the  50%  of  the  backwages  as  awarded  by  the Labour  Court  from  26.08.2002  till  31.05.2005  as quantified compensation. The Respondent shall be deprived  of  gratuity  amount  since  the  charge proved against  him in the enquiry involves  moral turpitude.”  

13. Heard Learned Counsel appearing on both sides.

14. On facts, it clear that the High Court has gone wrong in

holding that the Labour Court did not follow the procedure. It is

seen from the award that the management had not sought for

an opportunity for leading evidence. And despite granting an

opportunity, no evidence was adduced after the Labour Court

held  that  the  findings  of  the  inquiry  officer  were  perverse.

Therefore,  the Labour Court  cannot be faulted for  answering

the Reference in favour of the appellant.

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15. The Labour Court, on the available materials on record,

found that  the termination was unjustified on the basis  of  a

perverse finding entered by the inquiry officer. There was no

attempt  on  the  part  of  the  management  before  the  Labour

Court to establish otherwise.

16. It  appears  that  the  High  Court  itself  has  granted

compensation  since  the  Court  felt  that  the  termination  was

unjustified  and  since  reinstatement  was  not  possible  on

account of superannuation. In case, the High Court was of the

view that termination was justified, it could not have ordered

for payment of any compensation.

17. In  order  to  deny  gratuity  to  an  employee,  it  is  not

enough  that  the  alleged  misconduct  of  the  employee

constitutes  an  offence  involving  moral  turpitude  as  per  the

report of the domestic inquiry. There must be termination on

account  of  the  alleged  misconduct,  which  constitutes  an

offence involving moral turpitude.

18. Thus, viewed from any angle, the judgment of the High

Court cannot be sustained. It is hence set aside. The appeal is

allowed.  The  award  dated  20.06.2013  of  the  Labour  Court,

Jalgaon,  Maharashtra  in  Reference  IDA  No.  42  of  2007  is

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restored.  Consequently,  the  appellant  shall  be  entitled  to

gratuity in respect of his continuous service from his original

appointment till the date of his superannuation.

19. There shall be no orders as to costs.

........................................J.        (KURIAN JOSEPH)

......………………………………J. (ROHINTON FALI NARIMAN)

New Delhi; December 6, 2016.   

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