TMI Blog2014 (1) TMI 1935X X X X Extracts X X X X X X X X Extracts X X X X ..... iry is equally available to every employer, be it in a case where the order of punishment is issued or in a case where punishment is proposed by a 2nd show cause notice. Unless the enquiry was set aside on any count, there was no scope for conducting a de-novo enquiry which right was reserved by the petitioners herein in its written statement. By-passing this settled procedure, the Labour Court in one stroke has branded the findings of the Enquiry Officer as perverse and by accepting the evidence adduced by the respondent, has delivered its final judgment. The conclusion drawn by the Labour Court of declaring the findings as perverse on the basis of evidence adduced before it and in the backdrop of the respondent employee having neither led evidence through his witnesses nor cross examined the management witnesses, is an unsustainable conclusion. Procedure unknown to Law has been resorted to by the Labour Court. Since the respondent employee sought to brand the findings as perverse, such a challenge needs to be considered only on the basis of the evidence recorded in the enquiry and the findings arrived at by the Enquiry Officer in light thereof. The respondent employee led e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice dated 23/01/2002 was issued to the respondent proposing the punishment of compulsory retirement coupled with conversion of the period of suspension pending enquiry into punishment. He rushed to the Labour Court Jalna by filing complaint U.L.P. No. 45/2002 and thus challenged the 2nd show cause notice. The complaint was later on transferred to Nanded Labour Court. The complaint was renumbered as U.L.P. No. 1/2002. By judgment and order dated 22/02/2010, the Labour Court allowed the complaint, quashed and set aside the 2nd show cause notice dated 23/01/2002 and virtually prevented the petitioner herein from initiating any disciplinary action against the respondent. 4. The petitioners preferred revision U.L.P. No. 29/2010 before the Industrial Court at Jalna. By the impugned judgment dated 10/08/2012, the revision petition was dismissed. 5. The petitioners take exception to the impugned judgments on the following grounds:- (a) The charge sheet cum show cause notice clearly enumerated the acts committed by the respondent and the charges invoked against him. (b) Prayers made by the respondent in its complaint, which are at page No. 45 of the petition paper book, do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered with the proposed action of the petitioners since the 2nd show cause notice was intended to give the respondent an opportunity of showing cause against the proposed action. (p) The petitioners had proposed the punishment of compulsory retirement to the respondent instead of dismissal from service. (q) Without there being any prayer clause as regards the findings of the Enquiry Officer, the Labour Court has by itself ventured into setting aside the findings on the ground that no charge is proved against the respondent and the findings are perverse. (r) The fact that the respondent was suspended pending disciplinary proceedings which was later on converted into punishment along with compulsory retirement from service was construed by the Labour Court to mean two different (double) punishments for the same mis-conduct. (s) Findings of the Enquiry Officer, though not prayed for, have been held to be perverse by the Labour Court. (t) It is settled law that if the findings of the Enquiry Officer are held to be perverse, the employer has to conduct de-novo enquiry before the Labour Court. (u) The petitioners had reserved a right to conduct a de-novo enquiry in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) No pecuniary loss has been caused to the petitioner. (i) It is admitted that the respondent did not examine any witnesses on his behalf. (j) The Enquiry Officer has concluded that the alleged act committed by the respondent has not put the petitioners into any loss as is so claimed. (k) The testimony of the Management witnesses contained variations and they were fatal to the case of the petitioners. (l) Alleged mixing of inferior grade cotton with superior grade cotton was required to be examined by an expert body so as to give an expert opinion. (m) It is true that in the earlier domestic enquiry, the respondent was punished with permanent stoppage of one increment. (n) The proposed punishment was shockingly dis-proportionate. (o) Gratuity and retiral benefits of the petitioners are still not paid which could be an approximate amount of Rs. 4,00,000/-. (p) Both the impugned judgments are legal and sustainable. 7. Submissions of the learned Advocates for the respective sides, as are summarized here in above, were advanced in the light of the contents of the petition paper book which I have gone through with their assistance. 8. The Law on conducting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer were held perverse. 12. While considering a similar situation but with a slight distinction that the order of punishment was passed by the employer in those matters, the Single Judge as well as the Division Bench of this Court have laid down the Law. The learned Single Judge in the case of Permanent Magnets Vs. Vinod Vishnu Wani and others, reported at 2002 (93) FLR 32 : 2002 (3) Mh.L.J. 413 (Coram: R M S Khandeparkar, J.) concluded that when a right to conduct a de-novo enquiry was reserved in the written statement, the Labour Court could not have delivered its final judgment at the stage of arriving at a conclusion that the findings of the Enquiry Officer are perverse. 13. In the said case (supra), while holding that the enquiry is vitiated on this count, the Labour Court Jalgaon proceeded to deliver its final judgment and allowed the complainant by directing re- instatement and continuity in service. The Industrial Court, Jalgaon upheld the judgment. The Single Judge in the said case (supra), quashed and set aside the judgment of the Labour Court as well as the judgment of the Industrial Court and concluded that the moment the inquiry is held to be vitiated for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusions are either based on no evidence in the enquiry or are based upon mis-reading of the evidence in the enquiry. 19. Perversity in the findings of an Enquiry Officer is to be pointed out on the basis of the evidence placed before the Enquiry Officer. It, therefore, necessarily needs the consideration of the evidence before the Enquiry Officer and analyzing the findings of the Enquiry Officer. Material which was not before the Enquiry Officer can not be brought on record before the Labour Court to brand the findings as being perverse. In fact, normally there is no requirement of leading fresh evidence before the Labour Court on such preliminary issues like fairness of an enquiry and the findings of an Enquiry Officer. In both these situations, what has transpired in the domestic enquiry is to be looked into to find out, firstly, whether principles of natural justice were adhered to in conducting the enquiry and secondly, whether there was any evidence on record to support the findings or as to whether the findings are based on no evidence. 20. Since the respondent employee sought to brand the findings as perverse, such a challenge needs to be considered only on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irness of an enquiry and the findings of the Enquiry Officer. He should specifically set out his prayers seeking directions from the Labour Court for setting aside the domestic enquiry on account of violation of principles of natural justice or findings being perverse or for any other connected reason. Since this aspect of disciplinary proceedings happens to be of paramount importance, pleadings and prayers need to go hand in hand in order to enable the Labour Court to frame specific issues to that extent and deliver its part-I order/Award based on such prayers. A Court normally would not travel beyond the prayers put forth by a litigant. 25. So far as the right to challenge a 2nd show cause notice is concerned, the judgment of our Division Bench in case of Ashok Vishnu Kate and others Vs. M.R. Bhope and Hindustan Lever, 1992 (I) CLR 531 clearly held that such a right was available to an employee even at the penultimate stage and a complaint was maintainable under Item No. I of Schedule IV of the M.R.T.U. And P.U.L.P. Act, 1971. This view was upheld by the Apex Court dealing with the challenge raised by the employer in Hindustan Lever V/s. Ashok Vishnu Kate, (1995) 6 SCC 326. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver's case (supra). 28. For all the above stated reasons, the impugned judgments of the Labour Court dated 29/02/2010 in complaint U.L.P. No. 45/2002 and the Industrial Court dated 10/08/2012 in Revision U.L.P. No. 29/2010 are quashed and set aside. Consequentially, the complaint stands dismissed and the revision stands allowed. 29. Having quashed and set aside the impugned Judgments, it would have been normally possible to allow the petitioners employer to proceed in accordance with the standing orders for issuing an order pursuant to the 2nd show cause notice dated 23/01/2002 after giving the respondent an opportunity to show cause. However, since the respondent has already superannuated from service on 31/01/2003, no purpose would be served in doing so. 30. The petitioners had proposed the punishment of converting the suspension period into a punishment alongwith compulsory retirement from service. The respondent, in its submissions, has made a request that the instant case be considered sympathetically. It is an admitted position that gratuity is not paid to the respondent. The fact remains that since the respondent has now retired from service on 31/01/2003, no pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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