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2020 DIGILAW 650 (BOM)

Cartini India Limited v. Radhika Sawant

2020-04-27

C.V.BHADANG

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JUDGMENT : C.V. BHADANG, J. 1. The challenge in this Petition is to the order dated 18.01.2013, passed by the Industrial Tribunal and Labour Court at Panaji (Tribunal for short ) in Reference IT No. 35/2010. By the impugned order the Tribunal has answered the preliminary issue no. 1 in the affirmative holding that the domestic enquiry conducted against the respondents/workmen, is unjust, illegal and in violation of principles of natural justice. 2. The brief facts necessary for the disposal of the Petition may be stated thus: The respondents were employed with the erstwhile M/s Cartini India Ltd. which is taken over by the petitioner Godrej and Boyce Manufacturing Company Ltd. which is in the business of manufacture and assembling of locks. The respondents were employed with the petitioner between July, 1997 and 1999 initially as probationers and subsequently, their services were confirmed. 3. According to the petitioner, the respondents assaulted a temporary workman Ms. Sarita Arjun Naik on 26.07.2008, after which, Sarita lodged a complaint with the police and an offence was registered against the respondents on 18.08.2008 under Section 504 and 323 of IPC. Based on the complaint, the management decided to place the respondents under suspension. It is the material case that, when the order of suspension was sought to be served on the respondents, they refused to accept the same and insulted the Manager/ Director of the petitioner, Mr. James Kurian in the presence of Mrs. Carol De Souza e Narvekar Deputy Manager (Commercial) and Mr. Gajendra Parab Assistant Manager (Human Resources). The respondents, thereafter, abused said Officers and incited other workmen to strike work. 4. The matter was reported to the police on 20.08.2008 and the staff could leave the factory premises only at 7:30 p.m. on the intervention of the police. On 21.08.2008, the workers abstained from work and threatened the management and the staff who reported for work in the morning, shouting slogans and restraining entry of the other workmen. 5. Accordingly, the respondents were served with a charge-sheet dated 25.08.2008, alleging following misconduct under clauses 14(3)(a), (h) and (k) of the model standing order as applicable: (i) Will full insubordination or disobedience whether alone or in combination with others to any lawful and reasonable order of a superior. (ii) Riotous or disorderly behavior during working hours at the establishment or any act subversive of discipline. (ii) Riotous or disorderly behavior during working hours at the establishment or any act subversive of discipline. (iii) Striking work or inviting others to strike work in contravention of the provision of any law or rule having the force of law. The charge-sheet was issued by Mr. James Kurian, the Director of the petitioner, on the basis of the complaint lodged by Ms. Sarita Naik. The respondents fled a reply and refuted the charges as leveled. 6. The departmental enquiry was entrusted to Mr. A.M. Gaikwad, who was not connected with the management. At the enquiry, the respondents were represented by the General Secretary of the Union. On behalf of the petitioner, the management representative Mr. G.Y. Parab was examined along with Ms. Carol De Souzae Narvekar, Ms. Sarita Naik and Mr. James Kurian. The respondents examined themselves alongwith, Mr. Keshav Lingudkar, Mr. Siddhartha Vaingankar, Mr. Nilesh Shirodkar and Ms. Sangita Mainkar. The enquiry officer on appreciation of the evidence gave his report dated 28.12.2009 and found the respondents guilty of the misconduct under all the three heads. The petitioner on the basis of the said report served a second show cause notice on the respondents and by an order dated 08.02.2010 imposed a punishment of dismissal from service on the respondents. It may be mentioned that the order of dismissal has also been issued by Mr. James Kurian. 7. Feeling aggrieved, the respondents raised a reference under Section 10 of the Industrial Disputes Act (Act for short) being Reference (IT) No. 35/2010 before the Tribunal. The Tribunal framed the following issues: 1. Whether Party I/Union proves that the enquiry was unjust, illegal and in violation of principles of natural justice? 2. Whether the charges levelled against the Party I/workmen are proved to the satisfaction of the Tribunal? 3. Whether Party I/Union proves that the termination of the Party I/workmen is illegal, unjust and by way of victimization? 4. What relief? What order? The Tribunal tried issue nos. 1 and 2 as preliminary issues. By the impugned order, the Tribunal has answered issue no. 1 in the affirmative and consequently has held that the issue no. 2 does not arise, which order is subject matter of challenge in this Petition. 8. I have heard Mr. Menezes, the learned Counsel for the petitioner and Mr. Gaonkar, the learned counsel for the respondents. By the impugned order, the Tribunal has answered issue no. 1 in the affirmative and consequently has held that the issue no. 2 does not arise, which order is subject matter of challenge in this Petition. 8. I have heard Mr. Menezes, the learned Counsel for the petitioner and Mr. Gaonkar, the learned counsel for the respondents. With the assistance of the learned Counsel for the parties, I have gone through the record. 9. Mr. Menezes, the learned Counsel for the petitioner has submitted that the departmental enquiry encompasses the entire proceedings from serving of the charge-sheet to submission of the enquiry report. It is submitted that in this case, there is no finding as to whether, the enquiry was fair or proper or not. It is submitted that there is no finding recorded by the Tribunal on issue no. 2. It is submitted that no case is made out of the enquiry officer being biased in this case. It is pointed out that even otherwise, the enquiry officer was an independent person not connected with the management in any manner. It is not shown that the findings recorded by the enquiry officer, which are otherwise based on the evidence on record, are perverse or are vitiated in any manner. It is submitted that a detailed reply was fled by the petitioner before the Tribunal setting out facts, which would rule out any bias or victimization. It is submitted that victimization is antithesis to holding of an enquiry. It is submitted that Mr. James Kurian was the only competent witness to depose on the incident of insubordination and the finding in this regard is not based solely on his evidence as there is other evidence available on record. It is submitted that the Tribunal erred is placing reliance on the decision of the Supreme Court in the case of Mohd. Yunus Khan vs. State of U.P. (2010) 10 SCC 539 holding that there is an element of bias on the ground that Mr. James Kurian, who had issued the charge-sheet had examined himself as a witness. It is submitted that in the management, Mr. Kurian was only authorized to issue the charge-sheet and merely because he was examined as a witness cannot have the effect of vitiating either the findings or the enquiry as a whole. James Kurian, who had issued the charge-sheet had examined himself as a witness. It is submitted that in the management, Mr. Kurian was only authorized to issue the charge-sheet and merely because he was examined as a witness cannot have the effect of vitiating either the findings or the enquiry as a whole. It is submitted that the doctrine of necessity would require such an action being upheld. 10. On behalf of the petitioner, reliance is placed on the following decisions: (i) M/s Bharat Iron Works vs. Bhagubhai Balubhai Patel and Others, (1976) 1 SCC 518 (ii) J. Mohopatra and Co. and Another vs. State of Orissa and Another, (1984) 4 SCC 103 (iii) Election Commission of India and Another vs. Dr. Subramaniam Swamy and Another, (1996) 4 SCC 104 (iv) Tata Infomedia Ltd. vs. Tata Press Employees' Union, 2005 (3) Mh. L.J. 105 (v) Bharat Forge Co. Ltd. vs. Uttam Manohar Nakate, (2005) 2 SCC 489 (vi) State of U.P. vs. Sheo Shanker Srivastava and Another, (2006) 3 SCC 276 11. Mr. Gaonkar, the learned Counsel for the respondents has supported the impugned order. It is submitted that Part I award cannot normally be allowed to be challenged, particularly, when the petitioner has an opportunity to lead evidence in support of the charges before the Tribunal. Reliance in this regard is placed on the decision of the Supreme Court in the case of Cooper Engineering Ltd. vs. P.P. Mundhe, (1975) 2 SCC 661 and Neela Kaplish vs. Presiding Officer, Labour Court and Another, (1999) 1 SCC 517 . It is submitted that no person can be a judge as well as a witness in his own cause. It is submitted that Mr. Kurian, who had issued the charge-sheet for and on behalf of the disciplinary authority, cannot depose as a witness, which has vitiated the findings as being in breach of the principles of natural justice. The learned Counsel tried to make out a distinction in this regard between a private limited company and a public limited company. It is submitted that the respondents were not knowing as to who was the disciplinary authority in this case. It is submitted that the doctrine of necessity would not apply as there are bound to be higher authorities, such as the board of directors, which could have considered the enquiry report and issued the final order. It is submitted that the respondents were not knowing as to who was the disciplinary authority in this case. It is submitted that the doctrine of necessity would not apply as there are bound to be higher authorities, such as the board of directors, which could have considered the enquiry report and issued the final order. It is submitted that the Tribunal has rightly placed reliance on the decision of the Supreme Court in the case of Mohd. Yunus Khan (supra). The learned Counsel in particular has placed reliance on para 25 of the said judgment. On behalf of the respondents further reliance is placed on the decision of the Supreme Court in the case of Amar Nath Choudhary vs. Braithwaite and Company Ltd. (2002) 2 SCC 290 and the decision of the Orissa High Court in the case of Ejaj Alam Siddique vs. Presiding Officer Industrial Tribunal, 2014 SCC Online Ori. 131. 12. I have carefully considered the circumstances and the submissions made. The finding by the learned Tribunal is based on the decision of the Supreme Court in the case of Mohd. Yunus Khan (supra). The decision of the Madras High Court (Writ Petition Nos. 6976 and 4360 of 2006 decided on 23.02.2012) in the case of T. Kuppuswamy is based on the decision in the case of Mohd. Yunus Khan (supra). In the case of Mohd. Yunus Khan (supra), the appellant, a Police Constable was found to be absent from guard duty for 25 minutes. Subsequently, the appellant absented himself from the punishment drill for such absence. The appellant was eventually dismissed from service after holding a departmental enquiry, in which, the disciplinary authority was examined as a witness. The Supreme Court found that no person can be a judge in his own cause and no witness can certify that his own testimony is true. In such circumstances, the Supreme Court found that the procedure followed was in fagrant breach of principles of natural justice. 13. In the present case, the misconduct for which the respondents were charged is on two counts. The first is with reference to the incident dated 18.08.2008 of the alleged assault on Ms. Sarita Naik. The second part is relating to the incident dated 20.08.2008 of insubordination and undisciplined behavior allegedly in the presence of Mr. Kurian and others in the factory premises. It is submitted that Mr. The first is with reference to the incident dated 18.08.2008 of the alleged assault on Ms. Sarita Naik. The second part is relating to the incident dated 20.08.2008 of insubordination and undisciplined behavior allegedly in the presence of Mr. Kurian and others in the factory premises. It is submitted that Mr. Kurian was a witness to the incident dated 20.08.2008 in as much as it was when the suspension order was sought to be served on the respondents that the said incident is alleged to have occurred. It is also submitted that thus, Mr. Kurian being a witness was examined before the enquiry officer. It is submitted that there is other evidence also to establish the said charge. It is submitted that incidentally, Mr. Kurian was the only officer, who could have taken the disciplinary action and therefore, the acceptance of the enquiry report and the consequent dismissal of the workmen by Mr. Kurian is sought to be supported on the doctrine of necessity. In my considered view, the contention as raised, cannot be accepted. The Supreme Court in the case of Mohd. Yunus Khan (supra) has held in no uncertain terms that the initiation of the disciplinary proceedings and the conclusion thereof by imposition of the punishment by the same authority (the commandant in that case), who was also examined as witness in the enquiry was in flagrant breach of the principles of natural justice. In the present case also, Mr. James Kurian, a Director of the petitioner had placed the respondents under suspension and initiated the disciplinary enquiry, he examined himself as a witness before the enquiry officer, then accepted the findings of the enquiry and issued the order of dismissal. The ratio in the case of Mohd. Yunus Khan (supra) would clearly apply. 14. The principles apart (about which there cannot be any dispute), the decisions on which reliance is placed on behalf of the petitioner turned on their own facts. 15. In the case of J. Mohopatra (supra) some of the members of the committee/ sub-committee set up for selecting books for educational institutions were themselves authors of the books, which were to be considered for selection. It was in these circumstances held that possibility of bias cannot be excluded. 15. In the case of J. Mohopatra (supra) some of the members of the committee/ sub-committee set up for selecting books for educational institutions were themselves authors of the books, which were to be considered for selection. It was in these circumstances held that possibility of bias cannot be excluded. Although, there is an exception to the rule that no person can be a judge in his own cause, namely, the doctrine of necessity, in the said case, it was held on facts that the doctrine of necessity cannot apply in such a case. In the present case, it is not shown that the action can be sustained on the basis of doctrine of necessity as there are bound to be superior authorities than a Director, such as the board of directors of the company who could have taken the decision. 16. In the case of Dr. Subramaniam Swamy (supra), the issue was about disqualification incurred by a member of house of state legislature, which was required to be decided by the Governor, after obtaining the opinion of Election Commission. In that case, bias was alleged against the Chief Election Commissioner (CEC). The Supreme Court found that in a multi member commission (where there could be likelihood of bias against the CEC), the proper course for the CEC was to call for a meeting of the commission and then withdraw from the decision making process. However, in a case of disagreement between the members, the CEC was compelled to give his opinion communicating the majority view. It was in these circumstances held that doctrine of necessity would be attracted. 17. In the case of Sheo Shanker Srivastava (supra), Lokayukta was the disciplinary authority who appointed a retired officer of another department as the enquiry officer. This was objected to by the delinquent on the ground that an outsider cannot be appointed as the enquiry officer. In such circumstances, the disciplinary authority itself conducted the enquiry and awarded punishment. On facts, it was held that the right of the delinquent to claim that the enquiry should have been conducted by an officer other than the disciplinary authority, stood waived. In that case, the action was upheld additionally on the basis of doctrine of necessity. 18. In such circumstances, the disciplinary authority itself conducted the enquiry and awarded punishment. On facts, it was held that the right of the delinquent to claim that the enquiry should have been conducted by an officer other than the disciplinary authority, stood waived. In that case, the action was upheld additionally on the basis of doctrine of necessity. 18. It is necessary to note that observance of the principles of natural justice is sacrosanct in the matter of conduction of departmental enquiries and taking departmental action. It is only in some cases that these principles have been held to give way to the doctrine of necessity. Whether or not such a doctrine would be attracted so as to give way or override the considerations as to observance of natural justice would depend on facts and circumstances of each case. 19. In so far as the case of victimization is considered, issue no. 3 framed on the same is yet to be decided. What has been held in the case of M/s Bharat Iron Works (supra) is that proved misconduct is an antithesis to a case of victimization as understood in industrial relations. In the present case, when once the enquiry is held to be vitiated, as of now, there is no proved misconduct on record. It is also not possible to accept that there is no finding on the issue no. 2. Once the enquiry is held to be vitiated, the Tribunal has rightly found that the issue does not survive. Needless to mention that the petitioner shall get an opportunity to lead evidence before the Tribunal to establish the charges as leveled and can lead such evidence, if so advised. 20. The reliance placed on behalf of the petitioner on the decision in the case of Tata Infomedia Ltd. (supra) and Bharat Forge Co. Ltd. (supra) is misplaced, when once the enquiry is held to be vitiated. The decisions, in my view, turned on their own facts. 21. This Court would ordinarily be slow in entertaining a challenge to part I award based on the preliminary issue, as in the present case (see the decision in the case of Cooper Engineering Ltd.). I have gone through the impugned order and I do not find that a case for interference in the extraordinary and/or supervisory jurisdiction of this Court is made out. I have gone through the impugned order and I do not find that a case for interference in the extraordinary and/or supervisory jurisdiction of this Court is made out. The Petition is without any merit and is accordingly dismissed. Rule is discharged with no order as to costs. 22. At this stage, Mr. Menezes, the learned counsel for the Petitioner prays for extension of the interim relief, which was operating in this petition. Mr. Gaonkar, the learned counsel for the Respondents states that the matter is old and whenever the normal court working is restored, thereafter the reference before the Tribunal my be directed to be decided in a time bound manner. 23. Having heard the learned counsel for the parties, the interim relief as to the stay of the reference proceedings before the Tribunal is hereby continued for a period of eight weeks. The learned Tribunal shall make an endeavour to decide the reference, as expeditiously as possible, preferably within a period of one year, from the expiry of the eight weeks, if the normal court/tribunal working is restored.