CAMBATA AVIATION PVT LTD Vs. VIJAY MURTHY NADAR

JUDGEMENT

(1.) This petition was admitted on 17/8/2006 and Rule on interim relief was made returnable after six weeks. Civil Application No.723 of 2008 has been filed by the respondent-employee praying for directions against the petitioner - employer to pay him 50 per cent of his monthly wages from month to month and deposit the arrears of wages from 29/1/2005 till date. R. & P. in Complaint (ULP) No.240 of 2002 from which this petition arises has also been perused and with the consent of the parties the petition is finally heard.

(2.) The petitioner is engaged in the business of ground handling (handling the baggage) at the International Airport in Mumbai and engaged by the International Airlines. It is mainly responsible for loading and unloading the baggages. The respondent - workman was in its employment as a loader and on 11/3/2001 he was allotted the duty of Gulf Airways Flight No.GF-059 of loading the departure baggage and he was on over time duty. After the departure baggage was loaded, as per the prevalent practice the Assistant Supervisor of Traffic Department started the personal check of all the loaders one by one and during that process when the respondent - employee was searched, the Supervisor by name Shri Dyanesh Joshi found one digital diary in the hip pocket of the employee's trouser. When the employee was questioned about the digital diary initially he allegedly claimed that it was his own and subsequently when he was called upon to operate the same, he could not do so. It is further alleged that on further questioning he admitted having removed the said diary from one of the baggages which were loaded in the plane. The Assistant Supervisor took the employee to the Traffic Manager as well as the Deputy Manager of Traffic before whom the employee had allegedly admitted having removed the diary from the baggage. He was, therefore, suspended as per the order dated 12th March 2001 and was issued a charge-sheet cum enquiry notice on 27th March 2001. He replied to the charge-sheet and took the defence that the subject digital diary was purchased by him and the allegation that he had picked up the same from the baggage of one of the passengers was false and fabricated. It appears that he submitted a receipt issued by one M/s. Simla Stationery Mart at Kala Ghoda in support of his defence. Without completing the enquiry the petitioner - employer issued the order of dismissal on 14/1/2002. It was stated in the said order that due to the terrorising tactics of assaults and threats employed by the respondent - employee through his supporters / associates against Mr.Joshi who was the star witness, the enquiry could not be completed and, therefore, considering the gravity of misconduct committed by the employee the order of dismissal was issued and the employer claimed that it was not possible to conduct the departmental enquiry as the eye witnesses were not willing to come forward apprehending danger to their lives at the behest of the employee. This order of dismissal was challenged by filing Complaint (ULP) No.240 of 2002 filed under Section 28 read with Item 1 of Schedule IV of the MRTU & PULP Act, 1971 ("the Act" for short) along with an application for interim relief under Section 30(2) of the said Act. The learned Judge of the Labour Court by a detailed order dated 29/1/2005 partly allowed the application for interim relief at Exhibit U-2 and directed the petitioner - company to pay 50 % of basic pay, 50% D.A. and 50% special pay from the date of order till proving of the alleged misconduct before the Court. The said order was challenged by the petitioner - employer in Revision Application (ULP) No.55 of 2005 and the same came to be dismissed by the Industrial Court on 6/1/2006.

(3.) Mr.Bapat, the learned counsel for the petitioner - employer submitted that the Model Standing Orders framed by the Government of Maharashtra are applicable and accordingly the petitioner had taken appropriate steps for conducting a departmental enquiry into the charges levelled against the respondent - employee vide charge-sheet dated 27/3/2001. However, due to the acts solely attributable to the respondent - employee Mr.Dyanesh Joshi, the Assistant Supervisor by his communication dated 27/11/2001 informed the employer that apprehending danger to his life, he would not appear before the Enquiry Officer for cross-examination. As per Mr.Bapat the petitioner employer was forced to wind up the enquiry midway and it was under these circumstances he proceeded to issue the order of dismissal dated 14/1/2002. He, therefore, submitted that in the instant case the Labour Court was not right to hold that it was a case of no enquiry and consequently direct the payment of 50 % of wages from the date of the order till the enquiry was completed. As per Mr.Bapat, it was not by the choice of the petitioner - employer that the enquiry had to be halfway closed and instead the employer was forced to wind up the enquiry proceedings on account of the acts attributable allegedly to the respondent - employee and, therefore, the employer was not required to pay the subsistence allowance in such a case. He further submitted that if on conducting the enquiry before the Labour Court the charges are proved, the order of dismissal would relate back to its date of issuance i.e. 14/2/2002 and, therefore, the impugned order is manifestly erroneous. In support of these contentions he placed reliance on the Constitution Bench decision in the case of Kalyani Vs. Air Prance, Calcutta 679] [1963 I LLJ 679]. He also relied upon the following decisions of the Apex Court,