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SCA/157620/2009 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1576 of 2009
=========================================================
CEMA
ELECTRIC LIGHTING PRODUCTS INDIA PVT LTD - Petitioner(s)
Versus
G
E EMPLOYEES UNION & 1 - Respondent(s)
=========================================================
Appearance
:
MS
AVANTI K PATEL for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1 -
2.
MR AK CLERK for Respondent(s) : 1,
NANAVATI ASSOCIATES for
Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 18/03/2009
ORAL
ORDER
1. The
Petitioner has challenged orders dated 5th February, 2009
and 17th February, 2009 passed by the Industrial Tribunal,
Nadiad. By order dated 5th February, 2009, the learned
Tribunal has, by way of ad interim order, directed the
petitioner to maintain status quo as regards the proceedings
of departmental inquiry.
2. Earlier,
on 20th February, 2009, considering the impugned orders
dated 5th February, 2009 and 17th February,
2009 and the submissions of the petitioner, this Court had issued
notice which was made returnable on 25th February, 2009.
The notice was issued keeping in mind mainly three aspects viz. (a)
by the said impugned ad interim orders the learned Tribunal had
stayed the process of departmental inquiry, which is normally not
done, (b) and that therefore, though the orders brought under
challenge which were ad interim orders, against which this Court
would normally not interfere at interlocutory stage, this Court
considered it appropriate to issue notice; and (c) that the learned
Tribunal in order dated 17th February, 2009 observed that
the hearing was concluded and order was to be passed and in the
meantime Court has required the company to maintain status quo i.e.
to not to proceed in the inquiry and thereby continued the exparte
stay against inquiry. Thus, while issuing notice on 20th
February, 2009, the Court hoped and expected that at least by
returnable date the Tribunal would pass appropriate order.
3. However,
until returnable date the Tribunal did not pass any order and the
stay against the inquiry continued to operate. On 25th
February, 2009, i.e. returnable date Mr. Clerk entered appearance on
behalf of respondents and placed on record an affidavit-in-reply for
opposing the petition. It was submitted on behalf of respondents that
the arguments of contesting parties have been heard and the order is
about to be passed. Thus, instead of issuing any direction to the
Tribunal and fixing some outer time limit for passing appropriate
order, as strenuously urged by petitioner company by any interim
order at that stage, order dated 25th February, 2009 was
passed and the hearing of this petition was adjourned to 4th
March, 2009 with the hope that the Tribunal will have sufficient time
to pass appropriate orders, and by that time order, as may be
considered appropriate by the Tribunal, will be passed.
4. In
the said order dated 25th February, 2009, this Court
expressly observed that The order impugned in the petition is
only an interlocutory order, passed at an ad-interim stage. Normally
this Court would not entertain at interim stage against an
interlocutory order. However, since usually the proceedings of the
departmental inquiries are not supposed to be stayed until a strong
case for want of jurisdiction or malafide is made out, this Court
issued notice on 20.02.2009 making it returnable today.
In the said order this Court also observed that If by
that time, the order is not passed then, after considering the status
of the matter and further developments, appropriate order may be
passed on 4th March, 2009. Yadi may be served to the
learned Tribunal. So as to enable the parties to know the status of
the order, it will be open to the parties to produce a copy of this
order before the learned Tribunal.
5. On
4th March, 2009, this Court was informed that the learned
Tribunal had, for certain compelling reasons, proceeded on leave and
therefore the order was not passed. Hence, the proceedings of this
petition was adjourned to 13th March, 2009 so as to enable
the Tribunal to complete and pronounce the order.
6. On
13th March, 2009, this Court was informed that the
Tribunal had resumed the duties but due to unavailability of the
stenographer, the order could not be completed though the dictation
of the order had commenced.
7. Hence,
the proceedings were adjourned to 17th March, 2009 and
then to today. Until today the Tribunal has not completed/passed the
order and today the Court is informed that the Tribunal has again
proceeded on leave due to certain compelling personal reasons (on
account of which the Tribunal had proceed on leave on earlier
occasion) and it is not clear or certain as to whether the order will
be completed and passed.
8. In
this way almost one month has passed since the matter was heard by
the Tribunal and the order was reserved. This petition is also
pending before this Court since 20th February, 2009 and
despite the adjournments as aforesaid, so as to enable the Tribunal
to complete and pass the order, it appears that the learned Tribunal
has not been able to complete the order. In this view of the facts
and circumstances Mr. Patel, learned advocate for the petitioner, on
each adjournment, has earnestly requested this Court to pass
appropriate orders in the petition in light of the facts and
circumstances of the case while contending that the proceedings of
departmental inquiry ought not be stayed.
9. Today
this Court has heard Mr. KM Patel, learned senior counsel with Mr. AK
Patel, learned advocate for the petitioner and Mr. AK Clerk, learned
advocate for the respondents. Mr. Patel has made elaborate
submissions regarding the charges levelled against the workmen, the
action of the workmen due to which, as per the petitioner’s case, the
charge-sheets had to be issued and inquiry proceedings had to be
commenced. He has also made submission with regard to the settlement
and the risk involved in the event the workers abstain from work
since the concerned department is a continuous process department
and the consequences of the workmen not reporting for work. Mr. Patel
also made submission with regard to impropriety of the order staying
the departmental inquiry. He relied upon judgments of the Hon’ble
Apex Court reported in 2000(5) SCC 467, AIR 1987 Supreme Court 943,
1995(1) SCC 182 and the judgment of this Court reported in 1986(1)
GLR 406. Referring to the above decisions, Mr. Patel submitted that
correctness or justifiability of the charges cannot be gone into at
this stage by the Court, more particularly, until the proceedings of
the departmental inquiry are not concluded and that is the subject
within the scope of departmental inquiry and that the Court should
not interfere at interlocutory stage of departmental inquiry. He
submitted that the matter regarding the misconduct is to be
investigated during the inquiry and the learned Tribunal could not
have and ought not have undertaken the said exercise at this stage.
10. Per
contra Mr. Clerk submitted that in present petition, ad-interim order
has been challenged and the Court would not entertain a petition at
any interlocutory stage against an ad-interim order and/or will not
interfere with an ad-interim order at this stage. He also submitted
that the action of the concerned workmen would not amount to
misconduct and in fact the action of initiating the departmental
inquiry and suspending as many as 50 workmen is wholly unreasonable
and unwarranted. He submitted that even otherwise the day on which
the concerned workmen allegedly did not remain present was a public
holiday being ‘Makarsankranti’ and that there was change in practise
and the concerned workmen were not expressly called to attend the
duties on the day which was a ‘paid holiday’. He also submitted that
this is not a case where the Tribunal is unnecessarily or
unreasonably avoiding to pass order/award and in fact the Tribunal
has not avoided to pass the order. He also submitted that the
learned Tribunal has actually started dictating the order, however,
due to certain reasons beyond control, the Tribunal could not
complete the order and that therefore, this Court may not, at this
stage, entertain the petition and instead permit the Tribunal some
more time to complete and pronounce the order. Mr. Clerk also
submitted that actually it is the workmen who are suffering due to
the order of suspension, as their wages have been affected inasmuch
as suspended workmen are being paid only subsistence allowances.
11. From
the submissions of contesting parties, what emerges is the short fact
that about 50 workmen have been chargesheeted in connection with
certain acts which the employer considers as misconduct and in
respect of which intends to proceed against the workmen by way of
departmental proceedings. As a step towards that direction, the
company has issued charge-sheet dated 20.01.2009 to about 50 workmen,
whereas said workmen have been placed under suspension since
15.01.2009. Thus, since 15.01.2009 the workmen are under suspension
and in view of the order passed by the Tribunal, the proceedings of
the departmental inquiry are stayed and the workmen continue under
suspension.
12. So
far as the order staying the proceedings of departmental inquiry is
concerned, it is settled position that normally the Court would not
interfere in the proceedings of departmental inquiry and would not
stay such proceedings unless inherent lack of jurisdiction in
initiating the departmental inquiry or such compelling circumstances
or on such other compelling grounds the initiation or continuation of
departmental inquiry is shown to be illegal.
13. While
passing the order dated 05.02.2009, the learned Tribunal has not
recorded any reason as to why the learned Tribunal was pleased to
stay by exparte order, the departmental inquiry.
14. Even
in the order dated 17.02.2009, no reason is disclosed as to why the
proceedings of the departmental inquiry have been stayed by the
Tribunal.
15. For
this Court, it would not be appropriate, at this stage, to enter into
the merits of the charge-sheet and examine as to whether there is
justification in the action initiated by the petitioner company or
not. The said issue is under consideration before the learned
Tribunal and any observation at this stage would influence the
proceedings and/or the order that may be passed by the Tribunal.
16. Suffice
it to say, at this stage, that, prima facie, there does not appear to
be any compelling reason, such as want of authority in the
disciplinary authority or any other legal impediment in conducting
the departmental inquiry.
17. Considering
the rival submissions, the petition is required to be admitted.
Hence, Rule.
18. So
far as ad interim relief is concerned, in light of the aforesaid
discussion and in view of the law laid down by the Hon’ble Apex Court
with regard to stay against the departmental inquiry, this Court is
of the view that, at this stage, it does not appear appropriate or
necessary to stay the proceedings of departmental inquiry and it
would be appropriate to permit the petitioner company to proceed
further with the departmental inquiry in accordance with law and
applicable standing orders.
19. However,
since the initiation and conduct of the departmental inquiry itself
is under challenge before the learned Tribunal and the said aspects
are yet under consideration and are yet to be examined by the learned
Tribunal, it would be in fitness of things that until the learned
Tribunal examines the matter and passes the order, the conclusion of
the departmental inquiry may be made subject to the orders that may
be passed by the learned Tribunal.
20. Under
the circumstances, though the petitioner company may proceed further
in the departmental inquiry, it may not pass final orders on the
basis of the departmental proceedings until the learned Tribunal
passes order on application Ex.19. This arrangement is made only
because the learned Tribunal has not been able to complete and pass
the order. The arrangement will be subject to the order that may be
passed by the learned Tribunal. If the departmental inquiry
proceeding gets concluded before the Tribunal completes and
pronounces the order, then the petitioner may make appropriate
application for necessary orders, at that stage. It will be open to
the respondent Union also to make any appropriate application at that
stage, for necessary directions. It is hoped that the Tribunal would
pass appropriate order as it thinks fit in the facts and
circumstances of the case on Ex.19 as early as possible. The Tribunal
shall pass the order in accordance with law and without being
influenced by this order.
[K.M.THAKER,
J.]
jani
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