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SCA/4091/2009 8/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4091 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
C
G GLASS LTD & 1 - Petitioners
Versus
DINESH
AMBALAL PATEL - Respondents
=========================================================
Appearance :
MR
NILESH A PANDYA for
Petitioners: 1 - 2.
MR RAJESH P MANKAD for
Respondents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 18/01/2010
ORAL
JUDGMENT
Heard
learned advocates for the parties.
The
petitioner-First Party Employer in Approval Application No. IT No.
28 of 2001 in Reference (IT) No. 160 of 2001 has approached this
Court under Article 227 of the Constitution of India challenging the
order dated 07.01.2009 passed by the Presiding Officer (IT),
Vadodara rejecting the Approval Application which was filed by the
petitioner for seeking approval to order of dismissal passed by the
Company in respect of the respondent dismissing him with effect from
3.8.2001 for the reasons stated thereunder.
The
respondent workman was served with chargesheet on 16.2.2001
containing allegations that on 15.2.2001, while he was assigned duty
in the basement area at about 6-45 p.m. the glass draining chute of
ribbon machine got jammed with molten glass, as a result, the ribbon
machine was stopped for about one hour. This stopping of ribbon
machine resulted into substantial loss to the company. This was
treated as gross negligence and followed by inquiry, which resulted
into order of dismissal dated 3.8.2001. The workman was dismissed
vide order dated 3.8.2001. It is required to be noted that prior to
the dismissal, the employee was suspended vide order dated 6.3.2001.
However, as the Reference being Reference (IT) No. 160 of 2001 was
pending, the Company had to file Approval Application being Approval
Application No. 28 of 2001 in Reference (IT) No. 160 of 2001,
whereunder the Company interalia sought specific permission to lead
evidence in case the inquiry was found to be illegal. It was a stand
of the Company that while effecting the dismissal order, one month
salary, as required under Section 33 (2)(b) of the Industrial
Disputes Act, 1947 (hereinafter referred to as ‘the I.D. Act’ for
short) was sent by money order to the workman and thus, there was a
due compliance with provisions of Section 33 (2)(b) of the I.D. Act
and approval be granted as there was serious misconduct. The
Industrial Tribunal after holding inquiry to be illegal vide Exh. 12
order, which was bye-parte, came to the conclusion that approval did
not deserve to be granted. It is pertinent to note that the Company
did not challenge the order holding inquiry to be bad and therefore,
the ultimate order passed by the Tribunal is sought to be challenged
in this petition under Article 227 of the Constitution of India.
Shri
Pandya, learned advocate appearing for the petitioner contended that
Tribunal while deciding the Approval Application has not taken into
consideration the evidence with regard to due compliance with the
provisions of Section 33 (2)(b) of the I.D. Act as the workman has
clearly admitted that the amount as stated in written statement has
been received but also stated that it was not in due compliance and
it was not complete and correct wages. Shri Pandya further submitted
that written submission made by the Company have not been looked
into by the Tribunal while deciding the Approval Application. Shri
Pandya has relied upon the decision of the Apex Court in case of
Cholan Roadways Ltd. Vs. G. Thirugnanasambandam,
reported in (2005) 3 SCC 241, that Tribunal ought not to have gone
into the merits of the case as if it was deciding the subject matter
of Reference under Section 10(1) of the I.D. Act. The jurisdiction
of the Tribunal in such a case namely Approval Application under
Section 33(2)(b) is aptly laiddown by the Apex Court and when there
was a prima-facie case available to justify the order of dismissal,
the Tribunal ought to have accorded its approval to the dismissal of
the workman. Shri Pandya has further submitted that the Tribunal has
not gone into the aspect with regard to payment of wages and
Tribunal has held that the wages is also not paid in compliance with
Section 33(2)(b), the matter be remanded and while remanding the
matter, the Court may pass even appropriate order awarding adequate
amount of cost to the workman concerned.
Shri
Pandya submitted that as the Approval Application cannot be equated
with Permission Application, order of dismissal cannot be said to be
nonest so as to treat the workman in continuing in service and
accordingly, the Court may not grant complete wages till it is
decided finally, if the Court is remanding the matter to the
Tribunal for appropriate decision on merits. Shri Pandya further
submitted that the Approval Application is merely an exercise, which
has undertaken by the employer for seeking approval of action of
dismissal, whereas, the application for permission envisages the
permission of the Court and dismissal cannot be brought about unless
the permission is granted whenever the approval application would
not have same importance as Permission Application. He submitted
that there is a difference between Approval Application and
Permission Application and same should be viewed properly and in
view of that, Court may not grant any back wages to the workman.
Shri Pandya however, admitted that some appropriate cost may
certainly be awarded bearing in mind the time taken in the
proceedings.
Shri
Mankad, learned advocate appearing for the respondent relied upon
the following decisions:-
(i)
1998 (1) GLH 817 in case of Samantsinh Himmatsinh Chavda
Vs. G.S.R.T.C, Ahmedabad & Anr.;
(ii)
20010-1-LL SC 1706 in case of M.D. Tamil Nadu State
Transport Corporation Vs. Neethivilangan, Kumbakona,
(iii)
2002-III-LLJ Bombay 1036 in case of Standard Chartered
Grindlays Bank Ltd. Vs. Govind Phopale and another;
(iv)1978(o)
GLHEL-SC 15424 in case of Lalla Ram Vs. D.C.M. Chemical
Works Limited;
(v)
2004 I CLR 767 in case of Air India Limited Vs. Libio
Francisco Colaco & Anr.
and
submitted that Approval Application cannot be said to be an
application whereby, the dismissal is being effective, granting of
approval is not an empty formality and therefore, he submitted that
if the Court is inclined to remand the matter, subsistence allowance
at least be granted which is otherwise admissible to the employee as
if he is under suspension. The granting of subsistence allowance may
not preclude the Tribunal to decide the matter on merit, however,
the arrears of subsistence allowance, that may be payable, be paid
before the Approval
Application is slated for hearing on remand.
Shri
Mankad, learned advocate places on record the certified copy of the
settlement between the parties i.e. workmen of the company and
company and submitted that this settlement, which has came into
existence from 4.7.2001, the wages sought to be paid to the workman
at the time of issuing the termination order dated 3.8.2001 in
compliance with provisions of Section 33 (2)(b), then, the same
wages should have been calculated on the basis of the settlement and
in that case, the wages paid actually to the workman, were not on
the basis of the settlement and not after taking into consideration
the increase effected by the settlement and therefore, there was
clear breach of Section 33 (2)(b) of the I.D. Act.
Looking
to the rival submissions and observations made by the Apex Court in
case of Air India Limited (supra), this Court is of the view that
the matter is required to be remanded for following reasons :-
The
workman has not categorically made out a case as to on what count
one month wages, which is admittedly paid was not on one month
wages. Shri Mankad sought to rely upon the settlement arrived at
between the parties namely between the workmen and company,
whereunder, the workman was certainly entitled to receive higher
wages than the wages actually paid towards one month salary. This
settlement is dated 4.7.2001. However, this Court is of the view
that when the settlement itself is not pressed into service by the
Company nor has it been relied by the workman during the hearing of
Approval Application before the Tribunal, then same cannot be said
to be an admissible piece of evidence under Article 227 of the
Constitution of India. But at the same time, the existence of
settlement if proved would not absolve the company from paying the
wages in accordance with the settlement and after counting the wages
based upon the settlement. This being the clear proposition of law,
the matter even on this count is also required to be remanded so
that the parties may lead their evidences with regard to settlement
between the parties and one month’s wages to be paid in compliance
of Section 33 (2)(b) of the I.D. Act.
The
order of holding inquiry to be illegal has not been challenged by
the petitioner in any forum, therefore, the Court would not now like
while remanding the matter, to go beyond it, however, liberty is
required to be reserved to the parties to lead evidence afresh in
case if so chooses.
The
Tribunal ought to have appreciated the aspect of recording its clear
findings with regard to non-compliance with section 33 (2)(b) before
holding that the same is not complied with. The Tribunal therefore,
was required to record in unequivocal terms as to what was the pay,
wages payable in compliance with Section 33 (2)(b) and what was
actually paid and recorded its finding as to in what other terms
said section has not been complied with. The impugned order does not
disclose such findings and therefore, on that count also, the order
would not be sustained in eye of law and the matter is required to
be remanded to Tribunal to record its clear findings in this regard
after affording opportunity to the parties and taking into
consideration the settlement which is sought to be relied upon by
the advocate for the workman. Admissibility of the facts will have
to be decided by the Tribunal when the same is sought to be relied
upon by the parties for indicating their rival stand in this behalf.
This
brings the Court to decide the respite to
be granted to the workman as the non-approval of the
dismissal order would be treated as workman continuing in service.
In the instant case, as the record shows and order impugned clearly
indicates that the employer did not remain vigilant in pursuing the
Approval Application, which resulted into the Court passing order on
the available material before it. The remand has therefore been
warranted only on account of employer’s inaction and/or inertia and
therefore, the workman is required to be compensated adequately
while quashing the impugned order. It is required to be noted at
this stage that Tribunal has recorded in terms that inquiry was
completed in slipshod fashion and therefore, bearing in mind the
decision of the Apex Court cited at bar on behalf of workman, this
Court is of the view that instead of awarding lump sum amount
towards cost to the workman while remanding the matter, interest of
justice would be met if the petitioner is directed to pay the
subsistence allowance by way of costs as per the provisions of Model
Standing Order
to the workman from the date of dismissal till the Approval
Application is decided by the Tribunal.
The decision of Apex Court in case of Jaipur
Zilla Sahakari Bhoomi Vikas Bank Ltd. Vs. Shri Ram Gopal Sharma &
Ors.
reported in AIR 2002 SC 643 : 2002 (3) SCC 279 : 2002-I-LLJ-834,
Samantsinh Himmatsinh Chavda (supra) and AIR India Limited (supra),
also would go to show that effect of non-approval would amount to
workman
continuing in service. Had there been a case where the Approval
Application simplicitor was being adjudicated, then, it would have
been adjudicated expeditiously and then there would not be any
question of awarding any subsistence allowance as the same would not
be admissible but in the instant case, the peculiar facts and
inertia of the employer has resulted into his inability into pressed
into service the documentary evidence in support of his case and
therefore, the order impugned is passed relying upon the evidence
and submissions of the workman only. The remand is therefore
required to be made only with a view to enable both the sides to
clarify their stands. The workman would be required to be either
awarded exemplary cost so as to take care of the time spent in the
litigation. Bearing this in mind, the Court is of the view that the
order of subsistence allowance which is not in stricto senso
subsistence allowance but the amount equivalent to subsistence
allowance be paid to the workman from
the date of dismissal till the Approval Application is decided, in
other words, the said amount
is awarded as cost for remanding the matter. The said amount be paid
on or before 28.02.2010. The order impugned in this petition is
quashed and set aside and the Tribunal is directed to decide the
Approval Application as early as possible preferably within 6 months
from the date of receipt of writ of this order. Both
the counsels have assured this Court that parties will cooperate in
early disposal of the Approval Application.
In
view of the aforesaid observations, the petition is allowed. Rule is
made absolute to the aforesaid extent. There shall be no order as to
costs.
(S.R.BRAHMBHATT,
J.)
pallav
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