Bombay HC Restores Driver's Dismissal, Holds Derogatory Utterances Against Koli Women Grave Misconduct
Justice Sandeep Marne set aside a Rs. 5 lakh compensation award, ruling that a driver's vulgar remarks about fisherwomen warranted dismissal and could not be rewarded.
The High Court of Judicature at Bombay has restored the dismissal of a driver employed by a fishermen's cooperative society, overturning an Industrial Court order that had declared his termination illegal and awarded him Rs. 5 lakhs in compensation. Justice Sandeep V. Marne, sitting singly, held that the driver's act of making vulgar and disparaging utterances towards the wives and daughters of the Koli community — the very community for whose benefit he was employed — constituted grave misconduct justifying dismissal. The judgment also found that the Industrial Court had exceeded its revisional jurisdiction under Section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU and PULP Act) by effectively reappreciating evidence rather than identifying any perversity in the Labour Court's findings.
The Dispute Before the High Court
Uttan Machimar and Vahatuk Sahakari Society Ltd., a cooperative society providing fish transportation and related services to fishermen, employed Nitin Jaywant Mhatre as a driver from January 2001. Mhatre became an office-bearer of a union within the society. On 1 April 2003, a memorandum of settlement was executed under which the society recommended Mhatre's name for appointment as Staff Director on its managing committee.
According to Mhatre, the society was unwilling to accept him on the managing committee and began embroiling him in disciplinary proceedings. A memo dated 13 September 2006 alleged absence from duty. Another memo dated 16 October 2006 followed an incident on 14 October 2006 in which Vice Chairman Mr. Malcam Kasughar complained of misbehaviour. Mhatre was placed under suspension on 29 November 2006.
A chargesheet dated 29 November 2006 set out three charges: abandoning fish transportation on 8 October 2006 when the Chairman fell ill; refusing to transport fish on 13 September 2006, causing a member to suffer a loss of Rs. 51,622 and the society a commission loss of Rs. 1,600; and, most seriously, using unparliamentary and derogatory language towards the Vice Chairman and making vulgar utterances about the wives and daughters of the Koli community in the presence of men and women members on 14 October 2006.
The society alleged that Mhatre threatened the Enquiry Officer on 27 December 2006, preventing the domestic enquiry from being conducted. A police complaint was lodged that day. The society terminated Mhatre's services on 11 January 2007 without completing the enquiry.
Mhatre filed Complaint (ULP) No. 25 of 2007 before the Labour Court, Thane. Since no enquiry had been held, the society led evidence directly before the Labour Court, examining six witnesses including the Chairman, the Vice Chairman, and Smt. Ranjana Francis Bhandari. Mhatre examined himself. By order dated 3 August 2015, the Labour Court dismissed the complaint, holding that the third charge — the incident of 14 October 2006 — was proved and was sufficient to justify dismissal.
Mhatre then filed Revision Application (ULP) No. 75 of 2015 before the Industrial Court, Thane under Section 44 of the MRTU and PULP Act. By order dated 7 January 2021, the Industrial Court reversed the Labour Court, declared the termination illegal, but declined to order reinstatement or backwages, instead awarding a lump sum of Rs. 5 lakhs. The society challenged that order in Writ Petition No. 5003 of 2021 before the Bombay High Court.
The Legal Issues
Two questions arose for the court's consideration. First, whether making vulgar and disparaging utterances towards women of the community for whose benefit an employee is employed constitutes grave misconduct warranting dismissal. Second, whether the Industrial Court, exercising revisional jurisdiction under Section 44 of the MRTU and PULP Act, was entitled to set aside a finding of guilt recorded by the Labour Court on the basis of discrepancies in witness depositions and the relationship of a witness with a management office-bearer.
The society's counsel argued that the Industrial Court had acted as an appellate court by reappreciating evidence, that the misconduct was serious and well-proved by direct witness testimony, and that awarding compensation to an employee guilty of such conduct amounted to rewarding him. Mhatre's counsel contended that the society had failed to prove the charges, that the allegations were fabricated to prevent him from taking his seat as Staff Director, and that the Industrial Court's findings were well-supported by the evidence. He also submitted that this court's jurisdiction under Article 227 of the Constitution of India was limited and did not permit reappreciation of evidence.
How the Bench Reasoned
Justice Marne examined the Industrial Court's reasoning in detail and found it flawed at each step.
The Industrial Court had identified three reasons for disbelieving the incident of 14 October 2006: inconsistencies between the depositions of Mr. Malcam Kasughar and Mr. Bernet Francis Bhandari about whether managing committee members were present; the fact that Smt. Ranjana Bhandari was the sister of the ex-Chairman; and the absence of any reference to filthy language in the memo dated 16 October 2006.
On the first point, Justice Marne held that the Industrial Court had misread Mr. Kasughar's cross-examination. The statement that no managing committee member was present at 11.30 pm did not contradict the evidence of the other witnesses about the incident itself. Both Mr. Kasughar and Mr. Bernet Bhandari had consistently deposed about the use of abusive and derogatory language. A minor inconsistency about whether the Chairman was also present was not sufficient to discard both depositions. The court observed that in a domestic enquiry, the standard of proof is preponderance of probability, not proof beyond reasonable doubt, and that small discrepancies in witness depositions do not establish perversity.
On the second point, the court rejected the Industrial Court's approach of discarding Smt. Ranjana Bhandari's evidence solely because she was the sister of the ex-Chairman. She was herself engaged in fishing activities and had been present in the society's office on 14 October 2006 to collect ice. She was there as a fisherwoman, not as a relative of a management official. Her relationship with the ex-Chairman was not a reason to completely disregard her testimony.
On the third point, the court held that the memo dated 16 October 2006 was issued to prevent Mhatre from attending duties, not to initiate a disciplinary inquiry. It was therefore not necessary for the society to set out every detail of the misconduct in that memo. Referring to the misbehaviour with Mr. Kasughar was sufficient. The absence of a specific reference to the use of filthy language in the memo could not be treated as evidence that the incident did not occur.
The court also addressed the Industrial Court's finding that non-lodging of a police complaint regarding the 14 October 2006 incident cast doubt on whether it occurred. Justice Marne held that lodging a police complaint is not a sine qua non for holding a domestic inquiry. An employer may choose to address misconduct through internal disciplinary proceedings rather than criminal prosecution. Non-filing of a police complaint was an entirely irrelevant factor for determining whether service-related misconduct was committed.
Relying on the Supreme Court's judgments in State of Haryana and Anr. v. Rattan Singh (1977) 2 SCC 491 and Kuldeep Singh v. Commissioner of Police and Ors. (1992) 2 SCC 10, Justice Marne reiterated that findings in a domestic enquiry can be treated as perverse only where there is a total absence of evidence. Where some evidence exists, courts and tribunals cannot go into the adequacy or quality of that evidence. The present case was not one of no evidence — multiple witnesses had deposed about the incident of 14 October 2006.
On the question of victimization, the court held that a presumption of victimization cannot be drawn merely because disciplinary action is taken against a union office-bearer. Courts and tribunals must first assess the conduct independently and determine whether it amounts to misconduct. If it does, no special protection flows from union membership and an inference of victimization cannot be readily drawn.
The Gravity of the Misconduct
Justice Marne went beyond the jurisdictional question to address the nature of the misconduct directly. The driver had made derogatory utterances about the wives and daughters of the Koli community in the presence of women members of the society. He was employed to drive fisherwomen on a daily basis. The utterances were made towards the very persons for whose benefit he was employed.
The court found that there was no provocation for the remarks. On 14 October 2006, Mr. Kasughar had been instructing another driver, Iqbal Shaikh, about transporting ice. Mhatre had no occasion to intervene in that conversation. His intervention and the language he used indicated, in the court's view, his mindset towards the community he served.
The court held that such conduct “needs to be dealt with iron hands so as to maintain discipline in the organisation.” It also noted that Mhatre had threatened the Enquiry Officer on 27 December 2006, for which a police complaint was lodged — a fact the Industrial Court had ignored while placing weight on the absence of a police complaint about the 14 October 2006 incident.
In these circumstances, the court held that awarding compensation of Rs. 5 lakhs to Mhatre was indefensible. The society was justified in terminating his services to maintain discipline. An employee who had used unparliamentary and indecent language and had become, in the court's words, “an element of terror” could not be rewarded with compensation.
Order
Justice Sandeep V. Marne allowed Writ Petition No. 5003 of 2021 and made the rule absolute. The judgment and order dated 7 January 2021 passed by the Member, Industrial Court, Thane in Revision Application (ULP) No. 75 of 2015 was set aside. The judgment and order of the Labour Court, Thane dated 3 August 2015 dismissing Complaint (ULP) No. 25 of 2007 was upheld. There was no order as to costs.