BOMBAY PORT TRUST Vs. VISHNU VITHAL VICHARE

JUDGEMENT

(1.) THE focus of the forensic debate in this writ petition filed at the instance of the employer centered round two issues : (i) whether the Industrial Tribunal erred in not affording opportunity to the employer to lead evidence to prove the charges of misconduct against the employee despite the fact that such prayer was made by the employer in the written statement and, (ii) whether the finding of the industrial tribunal that the employer failed to prove the charges of misconduct in the enquiry on the ground that Shri Shaikh was not produced as a witness and the statement of Shri Pawaskar was hearsay was justified?

(2.) IT would be beneficial to refer to the broad facts of the case first before I venture to address the contentious issues. The first respondent Shri Vishnu Vithal Vichare (for short, employee ) was employed as a clerk, Grade-11 with the Petitioner the Bombay Port Trust (for short, employer ), a statutory port trust constituted under the Bombay Port Trust Act and Major Port trust Act. On 14-9-1984 Shri S. G. Pawaskar, Zonal-Officer was on his round and he noticed Shri 1. A. Shaikh, a watchman moving under suspicious circumstances. The Zonal Officer detained Shri shaikh and reported the matter to the police. Shri shaikh was searched by the police in the presence of panchas and from his possession two ball-bearings were recovered. The said ball-bearings were taken charge of under panchanama by police. Shri Shaikh led the panchas to A warehouse, III floor wherein he pointed out to employee with whose help he had removed the two ball bearings. Both the employee and Shri Shaikh pointed out the place at Bay No. 126 in A warehouse, III floor and the carton from which they had removed the two ball-bearings. The employee was arrested by the police that very day along with Shri Shaikh for the alleged theft of two ball-bearings. The employee was detained in custody for more than 48 hours and, therefore, he was placed under suspension in terms of Regulations of Bombay Port trust Employees CCA Regulations, 1976. It appears that on 30th January, 1985 the employee was discharged by the criminal court. In view of this discharge by the criminal court, the suspension of the employee was revoked and he was allowed to resume his duty without prejudice to the department s right to proceed against him in departmental enquiry. The employee resumed his duties on 15-2-1985. The Docks Manager, disciplinary authority decided to hold departmental enquiry for the major misconduct against the employee for violation of Regulation 3 (1) of the BPT Employees CCA Regulations, 1976 for failure to maintain absolute integrity and devotion to duty read with other provisions of regulations. Accordingly, an enquiry was held against the employee for the alleged misconduct. The enquiry officer found the employee guilty of misconduct. The disciplinary authority considered the findings of the enquiry officer and issued a show cause notice to the employee as to why he should not be compulsorily retired from service. The employee submitted his explanation. The disciplinary authority considered the reply to the show cause notice submitted by the employee and passed an order compulsorily retiring the employee from service. Accordingly, the employee was compulsorily retired from service from 23-7-1989. The employee preferred an appeal to the Chairman against the order of compulsory retirement, but the said appeal too was dismissed by the appellate authority. The employee then raised the industrial dispute through the union. The said industrial dispute viz. whether the action of the management of Bombay Port Trust in ordering compulsory retirement of Shri Vishnu Vithal Vichare, Ex-clerk grade-11 from service in Dock department w. e. f. 27-3-1989 is just, proper and legal? If not, to what relief the workman entitled to? was referred for adjudication to the Central Government Industrial tribunal No. 1, Bombay and registered as Reference cgit 58 of 1992. The employee filed statement of claim on 19-5-1993. The reply was filed by the employer and in the said reply in paragraph 7 the employer submitted that it had held a fair and proper enquiry against the charge levelled against the workman. In the alternative the employer prayed that it may be given an opportunity to prove the charges before the tribunal. Before the industrial tribunal the employer produced papers of enquiry and the appeal preferred by the employee before the appellate authority. The industrial Tribunal by the Award dated February 4, 1994 held that there was no satisfactory evidence before the Enquiry Officer for proof of the charges against the employee and the findings recorded by the Enquiry Officer were based on unsustainable evidence. The industrial tribunal, therefore held that the order of compulsory retirement was not justified. The industrial tribunal accordingly set aside the order of compulsory retirement and ordered employee s reinstatement with full back wages and consequential benefits.

(3.) I would like to take up first issue first. If first issue is decided in favour of the employer, there may not be any necessity of going into second issue. Conversely, if first issue is decided against the employer, the second issue raised by the learned counsel for the parties will have to be gone into.