Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 2888 (BOM)

Nawab Ali Khan v. Union of India

2018-12-06

B.P.DHARMADHIKARI, SARANG V.KOTWAL

body2018
JUDGMENT : B.P. DHARMADHIKARI, J. 1. Considering the nature of controversy, we have heard the matter finally by issuing Rule and making it returnable forthwith. 2. Submission of learned Counsel for the Petitioner Contractor is for alleged fault on the part of the 3 of his employees, action of blacklisting has been taken against the Petitioner without giving any opportunity and, therefore, it is in violation of law as laid down in the case of Raghunath Thakur Vs. State of Bihar and others reported in AIR 1989 SUPREME COURT 620. 3. It is also pointed out that those 3 employees cannot be charged with any malintention as they have tried to clear the garbage in accordance with the contract between the parties. The Petitioner employed those 3 persons and on that day, as per schedule, only wood was to be removed. They have, while removing the wood, also collected other garbage and when accosted, also fairly admitted it. The unwarranted material was, therefore, unloaded from the vehicle and no loss has been sustained by the employer Respondent No.2. The 3 employees who are basically ragpickers, are also prohibited from entering the area of the Respondent No.2 for a period of 3 years. 4. It is submitted that action against 3 workers is again unwarranted and excessive. Though the period of one year of blacklisting is over, the stigma continues and the Petitioner, therefore, faces difficulty while participating in other tender processes. 5. The learned Counsel for Respondent Nos.2 to 4 has relied upon the reply Affidavit. He submits that authorization on relevant date was only for removal of wood and the employees of the Petitioner attempted to remove gutter waste, cable and damaged battery. When the security personnel noticed it, they were questioned and the employees admitted their mistake. In view of this admitted position, no further hearing was necessary. It is claimed that the later 2 statements of employees are, in fact, recorded in presence of the Petitioner and he cannot, therefore, complain of violation of principles of natural justice. 6. The challan which permitted entry of staff and vehicle of the Petitioner for removal of garbage issued on 14/06/2017 specifically mentions that it is for wood. The statement of Supervisor produced by the Respondents is recorded on 15/06/2017. 6. The challan which permitted entry of staff and vehicle of the Petitioner for removal of garbage issued on 14/06/2017 specifically mentions that it is for wood. The statement of Supervisor produced by the Respondents is recorded on 15/06/2017. In that statement, he has declared that on 14/06/2017 at 12.30 noon, he entered the premises with vehicle and waste was filled in it. When he had gone for offering Namaz, the other 2 labourers loaded gutter waste (24 Kgs.), pieces of cable (48 Kgs.) and one battery of vehicle (35 Kgs.). He was aware of it. He has also accepted that this other material should not have been loaded in the vehicle and tendered apology. He has then stated that his employer (present Petitioner) would come to the office of the Respondent No.2 on the next day i.e. on 16/06/2017. On 16/06/2017, statement of Anwar Ali only has been recorded. Anwar Ali has stated that he had loaded white colour plastic bag and he was to get Rs.500/for it. Other statement, if recorded, is not made available to us. The Respondents have produced at Exh. C a document dated 16/06/2017 which is signed by 4 ladies who submit that on 13/06/2017, they were doing the work of segregation of waste. They have mentioned that on 13/06/2017, one employee by name Rajesh of Petitioner arrived with white bag and it was containing plastic pipes. They have also stated that on the next day, that white bag was loaded in the vehicle by the workers of the Petitioner. 7. The statement of Anwar Ali dated 16/06/2017 does not show that it has been recorded in presence of the Petitioner. Similarly, the statement of Supervisor Jahangir Rhine recorded on 15/06/2017 does not show that it was recorded immediately after the unwarranted material was found in the vehicle. It has been recorded on the next day. 8. In this situation, it is apparent that if the Petitioner was to be implicated in attempted removal of other garbage which has taken place on 14/06/2017, the Petitioner ought to have been given an opportunity to explain. It is not the case of the Respondents that the material removed from the vehicle was not the garbage. Only error or mistake committed by the workers appears to be that along with wood, they also attempted to load other garbage. It is not the case of the Respondents that the material removed from the vehicle was not the garbage. Only error or mistake committed by the workers appears to be that along with wood, they also attempted to load other garbage. How the Petitioner can be punished for their error, therefore, has not been brought on record. Statements of his employees, even if may contain an admission, cannot be used to his prejudice without proper opportunity. We, therefore, find the case of the Petitioner squarely covered by the observations of the Hon'ble Supreme Court in paragraph 4 of the Judgment noted supra. 9. In any case, the Petitioner has already suffered full period of blacklisting. We, therefore, quash and set aside the order dated 19/06/2017 blacklisting the Petitioner. 10. Insofar as 3 workers are concerned, it appears that they were aware that they could have, on that day, only removed wood as garbage. In this situation, we are not inclined to intervene in the action taken against them by the Respondents. 11. Accordingly, we partly allow the petition. We quash and set aside the blacklisting of the Petitioner and maintain other part of the order. No costs.