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2014 DIGILAW 2270 (BOM)

Dhanraj v. Public Works Department

2014-11-12

Z.A.HAQ

body2014
Judgment Z.A. Haq, J. 1. Heard Shri V.P. Marpakwar, the learned advocate for the petitioner and Ms Rashi Deshpande, the learned advocate for the respondents 1 and 2. 2. The petition takes exception to the orders passed by the subordinate Courts rejecting the complaint filed by the petitioner under Section 28 read with Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 upholding the order passed by the respondent no.1 compulsorily retiring the petitioner from the service. 3. It is undisputed that the petitioner had been in the employment of the respondents from 27th December, 1972 till 4th June, 2003 when he is compulsorily retired from service. The petitioner had good and unblemished record to his credit till the complaint against the petitioner was filed on the basis of which the charge-sheet dated 15th November, 2002 was issued. The charges levelled against the petitioner were that he misbehaved with the female employees working in the department and the behaviour of the petitioner with the female employees was improper. The enquiry was conducted against the petitioner pursuant to the charge-sheet dated 15th November, 2002 and after completing the enquiry, the Enquiry Officer submitted the report dated 30th April, 2003 concluding that the charges 1 and 2 levelled against the petitioner were partly proved. On the basis of the report submitted by the Enquiry Officer, the Disciplinary Authority took further steps and by the order dated 4th June, 2003, exercising its powers under Rule 6(2) and Rule 9(4) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 directed compulsory retirement of the petitioner. 4. The petitioner being aggrieved by the above mentioned order filed complaint before the Labour Court. The respondents justified their action. The Labour Court by the order dated 26th October, 2005 concluded that the petitioner failed to prove that the findings recorded by the Enquiry Officer are perverse and that the punishment of compulsory retirement is disproportionate. The complaint filed by the petitioner was rejected. The petitioner challenged the order in revision. The Industrial Court by the order dated 29th December, 2009 affirmed the findings recorded by the Labour Court and dismissed the revision. The petitioner being aggrieved in the matter has filed the present petition. 5. The complaint filed by the petitioner was rejected. The petitioner challenged the order in revision. The Industrial Court by the order dated 29th December, 2009 affirmed the findings recorded by the Labour Court and dismissed the revision. The petitioner being aggrieved in the matter has filed the present petition. 5. Shri Marpakwar, the learned advocate for the petitioner has submitted that at the relevant time the President of the Union Maharashtra Rajya Sarvajanik Bandhkam Karmachari Sangh had grudge against the petitioner and he manipulated the complaint against the petitioner by obtaining the signatures of workers though the signatories were not aware about the contents of the complaint. The learned advocate submitted that the complaint is made in the year 2002 and in the complaint the grievance was made about the incidents alleged to have taken place in 1994, 1995 and 1996. It is submitted that there is no explanation for the inordinate delay in making the complaint. According to the learned advocate for the petitioner, the manner in which the complaint of the alleged incidents was made against the petitioner shows that the complaint was motivated. Shri Marpakwar, the learned advocate has pointed out from the enquiry report that Enquiry Officer was also not sure about his conclusions and consequently he recorded that the charges 1 and 2 levelled against the petitioner are partly proved. It is submitted that though the Enquiry Officer has recorded that the charges 1 and 2 are partly proved against the petitioner it is not explained as to what part of the charges against the petitioner are proved. The submission on behalf of the petitioner is that the order of compulsory retirement could not have been issued on the basis of the enquiry report in which there is no conclusive decision that the charges levelled against the petitioner are proved. It is prayed that the orders passed by the subordinate Courts rejecting the challenge of the petitioner to the order of compulsory retirement, be set aside and the order of compulsory retirement be quashed. It is submitted that it be held that the petitioner is entitled to be treated as in service till he attained the age of superannuation, with all the consequential benefits. 6. Ms Rashi Deshpande, the learned A.G.P. has opposed the submissions as made on behalf of the petitioner. It is submitted that it be held that the petitioner is entitled to be treated as in service till he attained the age of superannuation, with all the consequential benefits. 6. Ms Rashi Deshpande, the learned A.G.P. has opposed the submissions as made on behalf of the petitioner. It is submitted that the Enquiry Officer has rightly observed that no female employee would make false complaint or allegations of the nature as in the present case. She has further submitted that the Enquiry Officer in his capacity as the fact finding Authority has found that charges 1 and 2 are partly proved against the petitioner hence the decision of retiring the petitioner compulsorily considering the nature of allegations against the petitioner cannot be said to be unjustified. The learned A.G.P. supported the order retiring the petitioner compulsorily and prayed that the petition be dismissed. 7. After hearing the learned advocates for the respective parties and examining the record, particularly, the report submitted by the Enquiry Officer, I find that the report submitted by the Enquiry Officer is as vague as it could be and it cannot be said that there is any finding recorded by the Enquiry Officer which brings home the alleged guilt of the petitioner. There is no justification on the record as to why the complaint about the alleged incidents was made after the period of 7 or 8 years. The Enquiry Officer has found that the statements given by some of the witnesses examined during the enquiry are not supported by the statements of the other witnesses or there are contradictions. I am conscious that the charges against the delinquent in the departmental enquiry are required to be considered on the basis of the theory of preponderance of probabilities and it is not necessary that the parameters applicable in criminal trial are required to be applied. However, the employee cannot be deprived of his legal right of continuing in the employment on the basis of motivated complaints without examining the truthfulness of the allegations made against the employee. Moreover, the Enquiry Officer is required to give definite finding after considering the material on the record that the charges levelled against the delinquent are proved. However, the employee cannot be deprived of his legal right of continuing in the employment on the basis of motivated complaints without examining the truthfulness of the allegations made against the employee. Moreover, the Enquiry Officer is required to give definite finding after considering the material on the record that the charges levelled against the delinquent are proved. In the present case, the Enquiry Officer has not been able to bring home the alleged guilt for which the petitioner was charged and therefore, he has recorded that charges 1 and 2 are partly proved against the petitioner. 8. In view of the above, it cannot be said that the charges levelled against the petitioner are proved and consequently, the order issued by the respondent no.1 compulsorily retiring the petitioner is quashed. The subordinate Courts have not examined the material on the record properly and the orders passed by them are also unsustainable in law. 9. The writ petition is allowed. The impugned orders passed by the Labour Court in complaint ULPA No.262/2003 on 26/10/2005 and by the Industrial Court in Revision (ULPN) No.261/2005 on 29/12/2009 are set aside. The order dated 4th June, 2003 issued by the respondent no.1 retiring the petitioner compulsorily is quashed. The respondents shall treat the petitioner to be in service till the date of his attaining the age of superannuation. Considering the facts of the case and in view of my finding that the order of compulsory retirement was on the basis of enquiry report which is unsustainable in law, I am of the view that the petitioner is entitled for the arrears of salary and all other monetary benefits from 4th June, 2003 till the date on which he attained the age of superannuation. The petitioner is entitled for fixation of his pension and other terminal benefits accordingly treating that the petitioner has retired from service on attaining the age of superannuation. Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.