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Shrinivas Krishna Surve Vs. Bombay Municipal Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 609 of 1980
Judge
Reported in1985(1)BomCR337
ActsBombay Industrial Relations Act, 1946 - Sections 78
AppellantShrinivas Krishna Surve
RespondentBombay Municipal Corporation and ors.
Appellant AdvocateS.S. Naphade, Adv.
Respondent AdvocateC.J. Sawant and ;R.E. Desai, Advs.
DispositionPetition dismissed
Excerpt:
.....over domestic enquiry - amended section 78 does not confer upon labour court appellate powers - labour court not empowered to interfere with finding made by domestic tribunal as it takes different view of evidence led before domestic tribunal. - - 9. clause d of section 78(1) only empowers the labour court to give the relief's of reinstatement or payment of compensation where it finds an order or dismissal or discharge or the like to be improper or illegal. naphade brought to the notice of the court section 11-a of the industrial disputes act whereunder a labour court, tribunal or national tribunal is empowered, if it is satisfied that an order of discharge or dismissal 'was not justified' to set aside the order of discharge or dismissal and direct reinstatement or give..........of the labour court holding that the labour court did not exercise appellate jurisdiction over the domestic tribunal; it could not reappreciate the evidence before the domestic tribunal and substitute its own finding for the finding recording by the domestic tribunal; it could examine whether the domestic tribunal had observed the principles of natural justice in conducting the domestic enquiry, whether it had acted bona fide and whether the order was in the nature of victimization; it could also examine whether the finding recorded by the domestic tribunal was perverse; it could be said to be perverse if it was based on no evidence at all or was such as no reasonable man could even arrive at it on the evidence on record; if, however, there was evidence for and against and if the.....
Judgment:

S.P. Bharuch, J.

1. Does the Labour Court have appellate powers under section 78 of the Bombay Industrial Relations Act, 1946 This is the question to be answered in this writ petition.

2. The petitioner was employed as an Assistant Fitter in the Bombay Electric Supply and Transport Undertaking of the first respondent. On 6th June, 1974 he was served with a charge-sheet which alleged theft. An enquiry was held pursuant to which the petitioner was served with an order of dismissal dated 23rd August, 1974. The petitioner approached the Labour Court under the said Act. On 30th March, 1977 the Labour Court, after reappraisal of the evidence led in the enquiry proceedings, set aside the order of dismissal. The first respondent thereafter led evidence before the Labour Court. Upon consideration of this evidence the Labour Court held that the charge was not proved and directed the first respondent to reinstate the petitioner.

3. The first respondent appealed to the Industrial Court. On 11th October, 1979 the Industrial Court set aside the order of the Labour Court holding that the Labour Court did not exercise appellate jurisdiction over the domestic tribunal; it could not reappreciate the evidence before the domestic Tribunal and substitute its own finding for the finding recording by the domestic Tribunal; it could examine whether the domestic tribunal had observed the principles of natural justice in conducting the domestic enquiry, whether it had acted bona fide and whether the order was in the nature of victimization; it could also examine whether the finding recorded by the domestic Tribunal was perverse; it could be said to be perverse if it was based on no evidence at all or was such as no reasonable man could even arrive at it on the evidence on record; if, however, there was evidence for and against and if the domestic Tribunal believed the one and rejected the other, it could not be said that its finding was perverse or that it could not be reasonably arrived at.

4. This petition impugns the finding of the Industrial Court. It is submitted that the powers of the Labour Court under section 78 of the Act are appellate powers by reason of the introduction of Clause 'D' in sub-section (1) of section 78 of the Act.

5. My attention was drawn by Mr. Naphade, learned Counsel for the petitioners, to the judgement of a Division Bench of this Court in Vithoba Maruti Chavan v. Taki Bilgrami (1964) II L.L.J. 31. This judgement construed section 78 before the introduction therein of clause 'D' in sub-section (1) thereof. The Division Bench held that the Labour Court was empowered to decide disputes regarding the propriety or legality of an order passed by an employer acting under the Standing Orders and was not confined only to satisfaction as to the propriety or legality of the order passed by the employer. The language unmistakably showed that the powers are wider than the powers of revisional jurisdiction. The fact that the power to decide a dispute regarding the propriety or legality of an order passed by an employer was conferred on the Labour Court would mean that the Labour Court could, in the interests of Justice, either confirm or set aside an order made by the employer, acting under the Standing Orders, also on the ground of its propriety or impropriety with a view to preventing injustice. But this was not to suggest that the Labour Court could sit as a Court of Appeal and interfere with a finding arrived at by a domestic Tribunal merely because the Labour Court took a different view of the evidence led before the domestic Tribunal.

6. Clause 'D' of sub-section (1) of section 78 of the Bombay Industrial Relations Act sets out what disputes the Labour Court has powers to decide. Such disputes include disputes regarding the propriety or legality of an order passed by an employer acting or purporting to act under the Standing Orders. Clauses B and C of sub-section (1) of section 78 are not relevant for our purposes. Clause D of sub-section (1) of section 78 states that a Labour Court shall have power to require an employer, where it finds that the order or dismissal, discharge removal, retrenchment, termination of service or suspension of an employee made by the employer is otherwise improper or illegal, to reinstate him or to pay him, in addition to wages, a suitable sum by way of compensation.

7. Mr. Naphade urged that the fact that sub-section (iii) of Clause D used the words 'otherwise improper' suggests that the Labour Court was empowered to reassess the evidence before the domestic Tribunal and come to a conclusion as to whether the order passed upon such evidence was proper or not. In other words, in his submission these words confer upon the Labour Court appellate powers.

8. Mr. Naphade drew my attention to the judgement of the Supreme Court in M/s. Chhotabhai Jethabhai Patel and Co. v. The Industrial Court, Nagpur, : (1972)ILLJ657SC . The Supreme Court considered the scheme of section 78(1) as amended and held that under Clause A the Labour Court had power to decide all the disputes mentioned therein. Clause B gave the Labour Court power to try offences punishable under the Act. Clauses C and D set out what relief's the Labour Court was empowered to give, including directions as may be found necessary in this behalf. Mr. Naphade relied upon the observations of the Supreme Court that the underlying idea behind the amendment of section 78 was to enlarge the powers of the Labour Court.

9. Clause D of section 78(1) only empowers the Labour Court to give the relief's of reinstatement or payment of compensation where it finds an order or dismissal or discharge or the like to be improper or illegal. It does not extend in any way the scope of the Labour Court's jurisdiction. That jurisdiction remains governed by Clause A of section 78(1) and the interpretation placed thereon by the Division Bench of the Court in Vithoba Maruti Chavan's case still holds the field.

10. Mr. Naphade brought to the notice of the Court section 11-A of the Industrial Disputes Act whereunder a Labour Court, Tribunal or National Tribunal is empowered, if it is satisfied that an order of discharge or dismissal 'was not justified' to set aside the order of discharge or dismissal and direct reinstatement or give such other relief. Under this provision the Labour Court, Tribunal or National Tribunal has the power to reappraise the evidence. In Mr. Naphade's submission the provisions of section 78 of the Act, being a co-ordinate Act dealing with Industrial relations, should be read in the said manner. The provisions of section 78 are so clear that no assistance need be taken from any other statute, however akin, to construe them.

11. In the result, I must hold that section 78 even as amended, does not confer upon the Labour Court appellate powers and does not empower it to interfere with the finding made by the domestic Tribunal because it takes a different view of the evidence led before the domestic tribunal.

12. It was contended in the alternative by Mr. Naphade that the evidence led before the domestic Tribunal could never reasonably lead to the conclusion that the petitioner was guilty of the charge levied against him and that the conclusion that he was guilty was perverse. I need not go into any details about this. It is patent that there was evidence both ways and that the domestic tribunal came to the conclusion that the evidence in support of the charge was to be preferred. It cannot, therefore, be said that the finding of the domestic tribunal was such as could never reasonably be arrived at upon the evidence before it or that it was perverse.

In the result, the petition is dismissed with no order as to costs.


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