CAMBATA AVIATION PVT Vs. M.D.SHIROSE

JUDGEMENT

(1.) RULE , by consent of Counsel returnable forthwith. Counsel appearing on behalf of the Respondents waives service. By consent of Counsel and at their request taken up for hearing and final disposal.

(2.) THE Petitioner carries on ground handling operations at Sahar International Airport and provides services to several International Airlines including Cathay Pacific, KLM, British Airways, Swiss Air and Gulfair. The First Respondent was employed as a driver at the International Airport. The allegation of misconduct against the First Respondent was founded on an incident that took place on the night of 24th April 1995 when the First Respondent was on duty. S. Fernandes who was the Coordinating Officer was on duty in the CAPL Parking Area, saw the First Respondent carrying a suit case towards a KLM Cargo Truck upon which the Coordinating Officer rushed towards him and questioned the workman. Since the explanation tendered by the First Respondent was not found to be satisfactory, he was taken to the watchman 's cabin. The matter was reported to the Assistant Manager, Traffic and then to the Police. The suit case was found to belong to a passenger who had arrived on Cathay Pacific Flight CX 750. The First Respondent was charged for misconduct involving theft, fraud and dishonesty in connection with the employer 's business or property and the commission of an act subversive of discipline.

(3.) A reference was made under Section 10 of the Industrial Disputes Act, 1947. The Labour Court by an award dated 24th May 2004 held that while the enquiry was fair and proper, the findings were perverse and were not based on legal evidence. The order of the Labour Court was challenged in a Petition under Article 226 of the Constitution by the Petitioner. By an order dated 23rd February 2005, this Court came to the conclusion that the finding of the Labour Court to the effect that the conclusions of the Enquiring Officer were perverse, suffered from a clear and patent perversity and was liable to be corrected in the exercise of the writ jurisdiction. This Court adverted to the evidence of Mr. Sebastian Fernandes who was the Coordinating Officer and who had deposed to the circumstances relating to the incident. This Court noted that in the course of the cross -examination, there was not even a suggestion to the effect that the incident had not taken place or that the workman had not been apprehended at the scene of the incident. The Court held that "the evidence of the management 's witness showed that he was on duty at the relevant time on 24th April 1995; that the nature of his duties required him to supervise, flights and functions of all areas including the parking area, flights and ramp area; that when he reached the parking area at about 10.10 p.m., he found a person carrying a suitcase in his hand throwing the suitcase in the truck and that the aforesaid person was the First Respondent who was immediately apprehended." This Court recorded that the First Respondent had in his deposition specifically admitted his presence with a suit case belonging to a passenger when he was apprehended by Mr. Fernandes. The defence of the First Respondent was that he had been asked by another driver to be present at a particular point and that he had been instructed that he would be informed of the reason why he had been asked to remain present subsequently. However, in his deposition the workman stated that when he was apprehended by the Coordinating Officer, he did not furnish the name of the driver, nor did he inform the Police the name of the driver. In the course of the cross -examination, he had admitted that his statement Exh.8 was written voluntarily and without any pressure and/or undue influence. The workman admitted that the place from where the suitcase was confiscated from him was not a place where regular baggage handling work was carried out. Moreover, he admitted that he had no reason to be present at the spot where he was apprehended by the Coordinating Officer. This Court held that despite cogent and clear evidence on the record, the Labour Court erroneously came to the conclusion that the findings of the Enquiry Officer suffered from perversity. In the circumstances, the judgment of the Labour Court was held to suffer from perversity which was liable to lead to a miscarriage of justice unless corrected at that stage.