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SCA/15760/2010 69/ 69 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15760 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
YES
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 ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
NETRANG
VIBHAG MILK PRODUCERS COOPERATIVE SOCIETY LTD - Petitioner(s)
Versus
CHANDRAKANT
VITHALBHAI MISTRY - Respondent(s)
=========================================================
Appearance
:
MR
BS PATEL for
Petitioner(s) : 1,
MR PH PATHAK for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 20/04/2011
ORAL
JUDGMENT
1. Heard
learned advocates appearing on behalf of respective parties.
2. In
present petition, petitioner society has challenged award passed by
Labour Court, Bharuch in Reference (LCB) No.100 of 2000 dated 13th
August, 2010, wherein, Reference made by respondent has partly
allowed with a direction to petitioner to reinstate respondent with
continuity of service to his original post with 20% back wages of
interim period.
3. In
this matter, on 22nd December, 2010, this Court has issued
‘notice for final disposal’ to respondent and made it returnable on
12th January, 2011. The respondent has not filed any
affidavit in reply against present petition.
4. Today,
learned advocate Mr. B.S. Patel appearing on behalf of petitioner –
society has raised contentions before this Court that service of
respondent was terminated by society on the ground of loss of
confidence and he was working as a Secretary in society and complaint
is filed by Bank of Baroda for misappropriation which included
account of petitioner society. The respondent workman was arrested
when he was working with society on the basis of FIR filed by Bank of
Baroda. He also submitted that service of respondent was terminated
while passing resolution dated 24th March, 2000 being
Resolution No.11/1, Page 65. He also submitted that at the time of
terminating service of respondent, one month’s notice pay was paid to
respondent. He submitted that according to provisions of Section
2(13) of Cooperative Societies Act, post of Secretary is covered by
designation as an ‘officer’, therefore, respondent was not a workman
within a meaning of Section 2(s) of Industrial Disputes Act, 1947
(for short ‘ID Act’). He also submitted that against termination,
Regular Civil Suit No.7 of 2000 was filed by respondent before Civil
Court, Valia impleading petitioner society as a party as well as
other members of Executive Committee. Copy of civil suit is produced
on record at page 43 to page 48. He submitted that civil suit has
been unconditionally withdrawn by respondent which is at page 48
dated 3rd November, 2003. Because of suit has been
unconditionally withdrawn, subsequent proceedings for same relief
filed before Labour Court, against which, principles of estopple is
applicable against respondent and therefore, reference is barred by
principles of estopple. He referred observations made by Labour Court
at page 31 in respect of nature of work performed by respondent. He
also read over before this Court Item No.Q from Award, page 31 and
submitted that in case when service has been terminated by employer
on the ground of loss of confidence, then, it cannot consider to be a
retrenchment and Section 25F of ID Act has not made applicable.
Therefore, compliance of Section 25F by employer does not arise. He
also raised contention that issue of loss of confidence has been
proved by employer before Labour Court, even though, contrary finding
has been given by Labour Court from record.
5. Learned
advocate Mr. Patel submitted that according to decision of Apex Court
reported in 2005 LLR 417 in case of K.C. Sharma v. Delhi Stock
Exchange, wherein, it has been held that in case of loss of
confidence, instead of granting relief of reinstatement, compensation
is to be worked out and paid to concerned respondent. He submitted
that this decision is not considered by Labour Court from record.
6. Learned
advocate Mr. Patel relied upon one decision of Apex Court in case of
Air India Corporation, Bombay v.
Rebellow and Another reported in AIR 1972 SC 1343.
He also relied upon another decision of Apex Court in case of Chandu
Lal v. Management of M/s. Pan American World Airways Inc.
reported in AIR 1985 SC 1128. He further relief upon decision
in case of Kamal Kishore Lakshman v. Management of M/s. Pan
American World Airways Inc. and Antoher
reported in (1987) 1 SCC 146.
7. Learned
advocate also relied upon decision in case of West Coast Paper
Mills Employees Union, Bombay v. A.B.M. Shaikh and Others
reported in 2000-III-LLJ (Suppl) 374 of
Bombay High Court. He referred Page 36/37, wherein, a complaint filed
by Branch Manager of Chasvad Branch, Bank of Baroda, wherein, in
respect of current account of petitioner society, misappropriation
was found. He submitted that on the basis of aforesaid FIR/Complaint,
Page 36/37, Labour Court must have to presume ground of loss of
confidence against respondent and that does not require to prove by
employer before Labour Court. He submitted that admission made by
respondent before Labour Court that civil suit was filed which was
unconditionally withdrawn by him and in police case, he was arrested
while working with petitioner society in the post of Secretary. In
short, his submission is that termination order which has been passed
by petitioner society on the ground of loss of confidence against
respondent is legal and valid and in such cases, question of giving
opportunity or holding departmental inquiry does not arise. He
submitted that nature of duties performed by respondent is suggested
managerial function and administrative capacity to control the work
of society and therefore, respondent is not a ‘workman’ within
meaning of Section 2(s) of ID Act. Therefore, he emphasised that
Labour Court has committed gross error in deciding entire reference
and also wrongly appreciated evidence on record and finding which has
been given by Labour Court is perverse and baseless which requires
interference by this Court while exercising powers under Article 227
of Constitution of India.
8. Learned
advocate Mr. P.H. Pathak appearing on behalf of respondent raised
contentions before this Court that normally, this Court cannot
disturb finding of fact recorded by Labour Court while exercising
powers under Article 227 of Constitution of India. He submitted that
page 36/37 which has been relied upon by learned advocate Mr. B.S.
Patel being a FIR filed by Amrutbhai Amthabhai Patel, Branch Manager
of Chasvad Branch, Bank of Baroda, wherein, name of respondent is not
disclosed and nowhere, allegations have been made against respondent
in FIR at page 34/35 as an accused. Therefore, learned advocate Mr.
Pathak submitted that merely filing of FIR by Branch Manager of
Chasvad Branch, Bank of Baroda regarding misappropriation in current
account of petitioner society by some person does not mean that
respondent has committed an criminal offence of misappropriation. He
also submitted that FIR which has been placed on record by
petitioner, page 34, where, name of accused is Champakbhai Vasava,
but, in said FIR, name of respondent was not mentioned as an accused.
Therefore, on the basis of FIR, decision which has been taken by
petitioner society of dismissal is totally non-application of mind
and no evidence against present respondent was produced by petitioner
society before Labour Court which proves ground of loss of
confidence. Learned advocate Mr. Pathak submitted that there must be
some material to be placed on record by employer to prove the facts
that respondent has committed particular kind of misconduct or
criminal offence and on that basis, employer has lost the confidence
against respondent. He submitted that except this FIR and complaint
as referred above page 34 to 39, no material is placed on record
which involved present respondent in criminal offence. Respondent was
arrested by police merely in pursuance of FIR, that does not mean
that respondent is involved in criminal offence. He submitted that in
criminal offence also, respondent is not convicted by competent
criminal Court. There is no slightest evidence produced on record
which suggests involvement of respondent in criminal offence. When
name of respondent is not disclosed as an accused in FIR and even in
detailed complaint, name of respondent is not disclosed as an accused
or he was involved in criminal offence, then, merely relying upon FIR
and complaint filed by Branch Manager, Chasvad Branch of Bank of
Baroda, resolution has been passed by petitioner society terminating
services of respondent without giving any opportunity to him and
without conducting any inquiry against present respondent. Therefore,
order of termination based on resolution dated 24th March,
2000 is contrary to principles of natural justice and for that, to
hold departmental inquiry is being a condition precedent and in
absence of such inquiry, termination is considered to be violation of
basic principles of natural justice.
9. Learned
advocate Mr. Pathak also submitted that one letter from Mr. Parmar,
Police Sub Inspector, LCB, Bharuch addressed to Branch Manager in
respect of FIR No.143 of 1999 for offences under Section 406 and 409
of Indian Penal Code, respondent was arrested, but, nowhere, his
involvement is found from record and said facts have not been
considered at all by society before passing order of termination
against respondent. Therefore, loss of confidence is considered to be
stigma and in such circumstances, principles of natural justice must
have to be followed by them, but, that has not been followed and no
departmental inquiry was conducted by petitioner against respondent.
Not only that but loss of confidence is not proved by petitioner
society before Labour Court by leading proper evidence from
complainant Mr.Amrutbhai A. Patel, Branch Manager, Chasvad Branch,
Bank of Baroda. He submitted that before Labour Court, Branch Manager
and one Shri Amrutbhai has not been examined to prove allegations
made against respondent and no involvement in criminal offence has
been proved by petitioner society before Labour Court in respect of
criminal offence, for which, respondent was arrested by PSI.
Therefore, he submitted that Labour Court has rightly examined matter
and rightly considered it that looking to nature of duties performed
by respondent and admitted by witness of petitioner society, he has
been held to be a ‘workman’ within a meaning of Section 2(s) of ID
Act. He relied upon decision of this Court in case of Rameshbhai
D. Patel v. United Catalyst India Ltd.
reported in 2006 (3) GCD 2514 (Guj).
10. Learned
advocate Mr. Pathak submitted that termination of respondent either
may be simple termination or that termination was based on stigma.
The allegations of loss of confidence made against respondent is
considered to be a stigma, then, inquiry is a condition precedent
which was not held, therefore, on that ground, order of termination
has been rightly set aside by Labour Court. If it is considered to be
a simple termination, then, it amounts to a retrenchment under
Section 2(oo) of ID Act and then, Section 25F of ID Act must have to
be followed which is admittedly not followed. Therefore also, a
simple termination amounts to a retrenchment, then, termination order
is ab initio void. So, on
both grounds, Labour Court has rightly examined matter and both
grounds have been perfectly appreciated on the basis of record and
such finding has been given which cannot consider to be a baseless
and perverse. Therefore, interference is not required by this Court
under Article 227 of Constitution of India.
11. I
have considered submissions made by both learned advocates appearing
on behalf of respective parties. I have perused award passed by
Labour Court, Bharuch and also perused relevant record which has been
produced by petitioner society before this Court. Petitioner society
has raised preliminary objections that respondent was not a ‘workman’
within a meaning of Section 2(s) of ID Act by giving separate
application to decide preliminary issue on 22nd
July, 2005, which application has been decided by Labour Court on 8th
August, 2008 that this preliminary issue will be considered along
with adjudication of reference on merits. That order has not been
challenged by petitioner society before higher forum. I have also
considered evidence of respondent Ex.26 and cross-examination and
also considered evidence of witness
– Dolatsinh Vashi Ex.46 of petitioner society and
cross-examination made by advocate of respondent. I have also
considered statement of claim filed by respondent and also written
statement filed by petitioner society. I have considered fact that
one civil suit has been filed by respondent which was subsequently
withdrew unconditionally vide Ex.75, therefore, it means that civil
Court has not decided civil suit on merits, therefore, principles of
estopple is not made applicable in facts of present case. Merely,
respondent has filed civil suit for obtaining interim relief/stay
against termination, that does not mean that such suit cannot be
withdrawn unconditionally by respondent and then to challenge
termination order under provisions of ID Act. The petitioner society
has not challenged order of reference which has been made by
Assistant Commissioner of Labour to Labour Court, Bharuch on 9th
May, 2000, therefore, now, petitioner society is not permitted to
contend that order of reference is bad. No such contention was raised
by petitioner society before Labour Court that because of civil suit
has been withdrawn unconditionally, reference proceedings is bad and
it is barred by principles of estopple. This contention is not raised
by petitioner society in written statement, even, that point was not
argued by learned advocate of petitioner society before Labour Court.
This contention is raised first time by before this Court by
petitioner society, therefore, naturally, Labour Court has no
occasion to decide such contention which was not raised before Labour
Court, Bharuch by petitioner
society. The contention is whether respondent is ‘workman’ or not ?
For that, Labour Court has rightly appreciated oral evidence of
respondent and admission made by witness of petitioner society that
nature of duties which has been performed by respondent is mainly of
account work, clerical work and he was not working as a supervisory
or managerial capacity and supervisory or managerial function is not
carried out by him. According to cross-examination of witness of
petitioner society, nature of work which was performed by respondent
to maintain account, banking affairs, to call meeting on the basis of
order passed by Manager and to write minutes of meeting and also to
have reconciliation with bank and other allied work which is required
to be performed by respondent. These all work have been suggested
that respondent is not having any power to appoint any person, even
he has no power to terminate services of any employee and no power to
punish any employee and even no power to sanction leave of any
employee. For that, no documentary evidence was produced on record
and proved it by petitioner society before Labour Court.
12. Initially,
respondent was appointed in post of Clerk in year of 1981.
Thereafter, he was promoted as an Accountant and thereafter, he was
further promoted in post of Secretary. The Secretary has to work
under supervision and control of Manager and whatever directions may
be issued by Manager to Secretary, that has to be carried out by
respondent and no independent
work is to be performed by respondent and he was not having any power
to take independent decision which binds petitioner society. For
that, Labour Court has rightly relied upon decision of Apex Court in
case of Anand Regional Coop. Oil Seeds Growers Union
Limited v. Shaileshkumar Harshadbhai Shah reported
in 2006 LLR 1052,
wherein, Apex Court has held in para 15 that “Supervision
contemplates direction and control. While determining the nature of
the work performed by an employee, the essence of the matter should
call for consideration. An undue importance need not be given for the
designation of an employee, or the name assigned to, the class to
which he belongs.”
Further, in para 17, Apex Court has held that “A
person indisputably carries on supervisory work if he has power to
control or supervision in regard to recruitment, promotion, etc. The
work involves exercise of tact and independence.”
This suggests the managerial and administrative function to be
carried out by employee. Therefore, evidence of respondent – Ex.26
and evidence of Dolatsinh Vashi, witness of petitioner society –
Ex.46 has been rightly appreciated by Labour Court and on the basis
of aforesaid evidence, Labour Court, after considering definition of
‘workman’ under Section 2(s) of ID Act, come to such conclusion while
considering decision of Apex Court in case of Ved
Prakash Gupta v. M/s. Delton Cable India (P) Ltd.
reported in 1984 (1) LLJ
546 and another decision
of Apex Court in case of Arkal
Govind Raj Rao v. Ciba Geigy of India Limited, Bombay
reported in 1986
(52) FLR 487, wherein, it
is held in paragraph 16 that ‘The test that one must employ
in such a case is what was the primary basic or dominant nature of
duties for which the person whose status is under inquiry was
employed. A few extra duties would hardly be relevant to determine
his status. The words like managerial or supervisory have to be
understood in their proper connotation and their mere use should not
detract from the truth.” Thereafter,
Labour Court has also considered decision of Allahabad High Court
which has been relied upon by petitioner society in case of Nirbhay
Mehrotra v. State of U.P. And Others reported
in 2006 LLR 1236
and distinguished aforesaid decision on the facts and then, come to
conclusion that nature of duties which has been performed has rightly
appreciated from evidence of respondent and evidence of witness of
petitioner society and considering documents which are on record that
respondent is covered by definition of Section 2(s) of ID Act.
Accordingly, contentions raised by learned advocate Mr. B.S. Patel
cannot be accepted.
13. The
second contention which has been raised by learned advocate Mr. B.S.
Patel is that service of respondent has been rightly terminated by
petitioner on the ground of loss of confidence and for that, no
departmental inquiry is necessary and no opportunity is to be given
to respondent before passing such order of termination. It is
necessary to note the reply Ex.18 filed by petitioner society before
Labour Court. In written
statement Ex.18, a specific case was put up by petitioner society
against respondent that respondent was arrested by PSI as per letter
dated 10th
February, 2000 in police case during course of employment and also
other misconduct which has been brought to notice of society and on
that ground, petitioner society has loss confidence upon respondent,
therefore, respondent’s service has been terminate by passing
resolution No.11/1, page 65, dated 24th
March, 2000. In light of written statement, not merely involvement in
criminal case or arrest by PSI Mr. Parmar has been taken into
account, but, some other misconduct has also been taken into account
for terminating services of respondent by petitioner society, that
fact has been disclosed by petitioner society in written statement
Ex.18. Therefore, even for said misconduct, if service has been
terminated, then also, departmental inquiry being a condition
precedent which has not been held being an undisputed facts between
parties.
14. Learned
advocate Mr. B.S. Patel for petitioner society has relied upon
decision of Apex Court in case of Kamal Kishore Lakshman
v. Management of M/s. Pan American World Airways Inc. and Antoher
reported in (1987) 1 SCC 146,
where, it is held that disciplinary inquiry should normally be held
before passing order of termination of service grounded on stigmatic
allegations, but, even if inquiry does not precede the stigmatic
order, termination would not become bad if employer justifies its
stand in adjudication before
Labour Court or Tribunal.
15. The
aforesaid decision is not supported submissions made by learned
advocate Mr. Patel. From evidence on record before Labour Court,
because of involvement in criminal offence and thereafter, respondent
was arrested by PSI Mr. Parmar during course of employment, that was
only a letter dated 10th
February, 2000 on record. Except that, there was no material at all
before petitioner society when order of termination was passed vide
Resolution No.11/1 dated 24th
March, 2000, Page 65. The allegations made against respondent have
not been justified by petitioner society while leading proper
evidence and to establish involvement of respondent in criminal
offence while examining complainant – Branch Manager of Bank of
Baroda, Chasvad Branch or any other persons including PSI who has
arrested the respondent. Therefore, merely examining one witness Mr.
Vashi – Ex.46, who has not disclosed and established or
justified the ground of loss of confidence alleged against
respondent. Therefore, if employer did not justify its stand in
adjudication before Labour Court or Tribunal, then, disciplinary
inquiry should be held before passing order of termination of service
grounded on stigmatic allegation. This is a ratio of aforesaid
decision of Apex Court which is not helpful to submissions made by
learned advocate Mr. Patel. The relevant discussion is made in
aforesaid case of Apex Court in case of Kamal Kishore
Lakshman (supra) in para
7 to 11,
which are quoted as under :
“7.
Having heard learned Counsel, we are inclined to reiterate the view
taken in Chandu Lal’s case (AIR 1985 SC 1128) that the plea of loss
of confidence in the employee indeed casts a stigma. As was pointed
out in Roble v. Green, (1985) 2 QB 315 the employee is expected to
promote the employer’s interests in connection with which he has been
employed and a necessary implication which must be engrafted on such
a contract is that the servant undertook to serve his master with
good faith and fidelity. This view has been accepted by several High
Courts in India and meets with our approval. In the absence of a
statutory definition of the word ‘stigma’, we shall refer to its
meaning as available in dictionaries.
8.
According to Webster’s New World Dictionary it is something that
detracts from the character or reputation of a person, a mark, sign,
etc., indicating that something is not considered normal or standard.
The Legal Thesaurus by Burton gives the meaning of the word to be
blemish, defect, disgrace, disrepute, imputation, mark of disgrace or
shame. The Webster’s IIIrd New International Dictionary gives the
meaning as a mark or label indicating a deviation from a norm.
According to yet another Dictionary ‘stigma’ is a matter for moral
reproach.
9.
Loss of confidence by the employer in the employee is a feature which
certainly affects the character or reputation of the employee and,
therefore, this Court correctly held in Chandu Lal’s case that
allegation of loss of confidence amounted to a stigma. The ratio in
Jagdish Mitter’s case AIR 1964 SC 449 also supports this conclusion.
10.
Retrenchment as defined in S. 2(oo) of the Industrial Disputes Act
and as held by this Court in several cases means termination of
service for any reason whatsoever otherwise than punishment inflicted
by way of disciplinary action and the other exceptions indicated
therein. In the present case though no formal domestic inquiry had
been held, the employer took the stand in the adjudication that
termination was grounded upon loss of confidence and substantiated
that allegation by leading evidence. The legal position firmly
established is that if there has been no appropriate domestic enquiry
or no enquiry at all before disciplinary action is taken, it is open
to the employer to ask for such opportunity in the course of
adjudication. In the facts of the present case, the order of
separation grounded upon loss of confidence has been justified before
the Labour Court and the Labour Court has come to that conclusion
upon assessment of the evidence.
11.
Several decisions were relied upon by appellant’s learned Counsel in
support of his contention that the conclusion in Chandu Lars case
(AIR 1985 SC 1128) that loss of confidence amounted to stigma was
wrong. We have not been shown a single case other than Chandu Lal’s
where this aspect has been directly considered. Whether termination
is grounded upon stigma would not vary from case to case depending
upon whether it involves a government servant or a workman. But the
procedural safeguards appear to be different when termination is
sought to be founded upon stigma. If disciplinary inquiry has not
preceded the prejudicial order in the case of a Government servant
the action would be bad while in the case of a workman the order
could be justified even in the course of adjudication before the
appropriate Tribunal under the Industrial Disputes Act even though no
inquiry had been undertaken earlier.”
16. Learned
advocate Mr. B.S. Patel also relied upon decision of Apex Court in
case of Air India Corporation, Bombay v. Rebellow and
Another reported in AIR
1972 SC 1343.
17. In
aforesaid decision, power has been exercised for terminating service
of employee under Regulation 48, Air India Employees Service
Regulation, but, in this
case, whether such power is available to society under service rules
or not ? That aspect has not been disclosed by learned advocate Mr.
Patel before this Court. The relevant discussion is made by Apex
Court in case of Air India Corporation, Bombay
(supra) in para 11 to 13,
which are quoted as under :
“11. The
true legal position has been stated by this Court more than once
and is by now beyond controversy. In one of the most recent
decisions in The Workmen of Sudder Office, Cinnamara v The
Management(1) this Court approvingly referred to two of its
earlier decisions actually reproducing a passage from one of them.
This is what was said in Sudder Office case :
“It
is needless to point out that it has been held by this Court in The
Chartered Bank, Bombay v. The Chartered Bank Employees’ Union (2)
that if the termination of service is a colourable exercise of the
power vested in the management or as a result of victimisation or
unfair labour practice, the Industrial Tribunal would have
jurisdiction to intervene and set aside such a termination. In
order to find out whether the order of termination is one of the
termination simpliciter under
the provisions of contract or of standing orders, the Tribunal has
ample jurisdiction to go into all the circumstances which led to
the termination simpliciter-. The form of the order of
termination, is not conclusive of the true nature of the order, for
it is possible that the form may be merely a camouflage for an
order of dismissal for misconduct. It is, therefore, open to the
Tribunal to go behind the form of the order and look at the
substance. If the Tribunal comes to the conclusion that though in
form the order amounts to termination simpliciter but in
reality cloaks a dismissal for misconduct, it will be open to it to
set aside the order as a colourable exercise of power by the
management.
Principles
to the same effect have also been reiterated in the later decision
of this Court in Tata Oil Mill Co. Ltd. v. WorKmen & anr. (3)
where the Court observed as follows :
“The
true legal position about the Industrial Court’s justification and
authority in dealing with cases of
this kind is no longer in doubt. It is true that in several cases,
contract of employment or provisions in standing orders authorise
an industrial employer to terminate the service of his employees
after giving notice for one month or paying salary for one month
in lieu of notice, and normally, an employer may, in a proper
case, be entitled to exercise the said power. But where an
order of discharge passed by an employer gives rise to an industrial
dispute, the form of the order by which the employee’s services
are terminated would not be decisive; industrial adjudication would
be entitled to examine the substance of the matter and decide
whether the termination is in face discharge simpliciter or it
amounts to dismissal which has put on the cloak of discharge
simpliciter. If the Industrial Court is satisfied that the order
of discharge is punitive, that it is malafide, or that it amounts
to victimisation or unfair labour practice, it is competent to
the. Industrial Court to set
aside the order and, in a proper case, direct the reinstatement of
the employee.”
12. Shri
Menon on behalf of the complainant, however, contended that
ignoring the form and language of the impugned order and looking at
the real substance of the matter it is clear as disclosed by
the appellant in the further written statement that the
complainant’s services were terminated because of a suspicion
about his private conduct and behaviour with Air Hostesses whose
names were considered not proper to be disclosed. This, said the
counsel, makes out an allegation of misconduct which induced the
appellant to terminate the complainant’s services and the
case, therefore, clearly falls within the mischief of s. 33. The
impugned order, he added, is a colourable exercise of the power
under Regulation 48, the real object of the appellant being
essentially to punish the complainant for misconduct.
13. No
doubt, the position of the industrial workman is different
from that of a Government servant because an industrial employer
cannot “hire and fire” his Workmen on the basis of an
unfettered right under the contract of employment, that
right now being subject to industrial
adjudication : and there is also on the other hand no provision
of the Constitution like Arts.310 and 311 requiring consideration
in the case of industrial workmen. We are here only concerned with
the question whether the impugned action of termination of the
complainant’s services is for misconduct as contemplated by s.
33(II)(b) or s. 33(2)(b). While considering this question it is
open to the complainant to urge that reliance on Regulation 48 is
not bona fide, it being a colourable exercise of the right
conferred by that regulation. He has in fact raised this
argument and it is this aspect which concerns us in this case.
Let us now scrutinies the present record for examining the position
from this aspect.”
18. Learned
advocate Mr. Patel also relied upon decision of Bombay High Court in
case of West Coast Paper Mills Employees Union, Bombay
v. A.B.M. Shaikh and Others
reported in 2000-III-LLJ (Suppl) 374.
This decision is not having any assistance in support of submissions
made by learned advocate Mr. Patel. He relied upon para
21 to 23 and 25 of said
judgment which are quoted as under :
“21. Petitioner
relied on the decision reported in the case of L. Mechael and another
v. Johnson Pump Ltd. AIR 1975 SC 661 : 1975-I-LLJ-262 in respect of
his contention that even in respect of discharge, enquiry is a must
if stigma is attached. Noting the fact that loss of confidence is
often a subjective feeling or individual reaction to an objective set
of facts and motivations, the learned Judges admit that there could
be circumstance to justify the genuine exercise of the power of
simple termination. They also admit that the disciplinary enquiry
cannot be fair in the matter involving responsible post being misused
or a sensitive or strategic position being abused. In short as set
out in paragraph 22, the action must rest on tangible basis and the
power has to be exercised by the employer objectively in good faith
which means honestly with due are and prudence.
22. The
decision definitely lays down that if the exercise of such power is
challenged on the ground of being colourable or mala fide or an act
of victimisation or unfair labour practice, the employer must
disclose to the Court the grounds of his impugned action so that the
same may be decided judicially.
23. Petitioners
also relied on a decision reported in 1992 (1) CLR 474 in the case of
Theatre Employees Union &
Ors. v. S.V. Kotnis and others. It is a decision of the learned
single Judge of this Court where only evidence relied on was
so-called admission of guilt. That too of as many as 12 employees
within the span of more than one and half month after the alleged
incident. The exercise of the employer’s privilege of terminating the
employees on the ground of loss of confidence was struck down by the
Court. It involved the termination of 12 employees of a theatre.
Though there were unsold tickets, auditorium was found full. Actions
were taken against as many as 12 employees and the only material was
alleged admission. It took almost one and half month for the employer
to get this statement.
25. Petitioners
heavily relied on the decision reported in 1985 (II) CLR 21 in the
case of Chandu Lal v. The Management of Pan American World Airways
Ic., in support of the proposition that even in case of loss of
confidence enquiry is a must. Explaining what is loss of confidence
when it is found that the alleged action of the employee amounts to
dereliction on his part, the action is stigmatized and therefore the
enquiry is a must. In the instant case the employer had found the
workman one Chandu Lal along with co-employee to be indulging in the
activity of smuggling. ”
19. Learned
advocate Mr. Patel further relied upon decision of Apex Court in case
of Chandu Lal v. Management of M/s. Pan American World
Airways Inc. reported in AIR
1985 SC 1128. He relied upon
relevant discussion made in para 8,
which is quoted as under :
“8. It
is difficult to agree with the finding of the Labour Court that when
service to terminated on the basis of loss of confidence the order
does not amount to one with stigma and does not warrant a proceeding
contemplated by law preceding termination. Want of confidence in an
employee does point out to an adverse facet in his character as the
true meaning of the allegation is that the employee has failed to
behave up to the expected standard of conduct which has given rise to
it situation involving loss of confidence. In any view of the matter
this amounts to a dereliction on the part of the workman and,
therefore, the stand taken by the management that termination for
loss of confidence does not amount to a stigma has to be repelled. In
our, opinion it is not necessary to support our conclusion by
reference to precedents or textual opinion as a commonsense
assessment of the matter is sufficient to dispose of this aspect.
‘Retrenchment’ is defined in
S. 2(oo) of the Industrial Disputes Act and excludes termination of
service by the employer as a punishment inflicted by way of
disciplinary action. If the termination in the instant case is held
to be grounded upon conduct attaching stigma to the appellant,
disciplinary proceedings were necessary as a condition precedent to
infliction of termination as a measure of punishment. Admittedly this
has not been done. Therefore, the order of termination is vitiated in
law and cannot be sustained.”
20. Learned
advocate Mr. P.H. Pathak appearing on behalf of respondent is relied
upon decision in support of his submissions in case of Rameshbhai
D. Patel v. United Catalyst India Ltd.
reported in 2006 (3) GCD 2514 (Guj),
where, this Court has examined in detail said issue. This Court has
considered almost decisions which have been relied upon by learned
advocate Mr. B.S. Patel hereinabove on both grounds; (i) Whether
concerned respondent is a ‘workman’ or not ? and (ii) when service is
terminated on the basis of loss of confidence then whether it
amounts to a stigma or not and being a condition precedent,
departmental inquiry is required to be initiated or not ? This has
been discussed by this Court in detail in para 21, 22, 25 to 30 and
35, upon which, learned advocate Mr. Pathak is relying. Therefore,
same are quoted as under :
“21. As
regards the contention raised by the learned Advocate Mr. K.M. Patel
about loss of confidence, such assertion against the workman amounts
to stigma/allegation by the management. Plea of loss of confidence
was raised in written statement in one sentence and one sentence in
deposition. However, on what basis, the Management has lost the
confidence from the employee, that has not been clarified by the
management. No evidence in that regard was led by the management to
prove serious allegation against the workman after raising plea of
loss of confidence. It is necessary to note that in show cause notice
dated 2nd September, 1983, though specific allegations
were made by the management against workman, in that show cause
notice also, plea of loss of confidence is not incorporated by the
management. Contention of loss of confidence was raised by the
management against workman before the labour court without making any
allegation in that regard in the show cause notice. Allegation of
loss of confidence has been considered to be stigma and, therefore,
same is required to be proved by holding inquiry against workman in
accordance with the principles of natural justice as per the decision
of the Apex Court in Chandu Lal v. The Management of M/s. Pan
American World Airways Inc., reported in AIR 1985 SC 1128. Therefore,
after considering the arguments/submissions made by the learned
Advocate Mr.Patel on both the counts, I am of the opinion that the
plea of loss of confidence is requiring holding of departmental
inquiry. Show cause notice dated 2nd
September, 1983 also would require holding of departmental inquiry
and yet, undisputedly no departmental inquiry was initiated against
the workman by the management. Services of workman were terminated
by oral order dated 23.9.1983. Therefore, mere contention about loss
of confidence is not enough but same is required to be proved by
producing cogent and convincing evidence in that regard since it
amounts to stigma against workman and the management has failed to do
so after raising of such contention against the workman. One more
aspect is also required to be noted that the management has taken
stand before the labour court knowing fully well that the
departmental inquiry was not initiated against the workman, then, why
the management has not sought permission from the labour court to
prove misconduct by leading proper evidence against workman before
the labour court. No such permission was sought by the management
before the labour court. In view of that, contention raised by the
management about the loss of confidence cannot be accepted and
same is therefore not accepted.
22. Conduct
of the Management is also required to be noted for which this court
has gathered impression from record which shows that the intention of
the management was to terminate services of workman immediately and
not to wait for inquiry and that is how the management has acted
hurriedly without waiting for inquiry on the basis of letter of
apology and then request of workman for taking him in service is
turned down by terminating his services orally. Apparently, this is
something done by the management with the workman with an ulterior
oblique motive after receiving letter of apology from the workman. I
fail to understand the strategy which has been adopted/generated by
the management. It was clear trap/game of Management against workman.
Issuance of show cause notice and receiving reply from the workman,
then, where is question arises to ask for apology from workman except
to having intention not to hold inquiry against workmnan. So,
questions can raise pursuant to letter of apology tendered by the
workman. There is no question which would require tendering of letter
of apology but evidence of workman was correct and same is
believable that he met at Bombay two occasions the main owner of the
company namely Lalajee Sheth and thereafter met the Manager A.
Prakash who suggested him to tender letter of apology to resolve the
matter. For that, the workman agreed and accordingly he tendered
letter of apology but second part of the promise which was orally
given was not acted upon by the management and that resulted into
termination of service of workman. That is how the incident has
occurred with the workman by the management. Management has avoided
to hold departmental inquiry and that is how this strategy has been
adopted because the workman has not admitted the charges leveled
against him in the show cause notice.
25. Thus,
definition of workman under section 2(s) of the ID Act, 1947 covers
any person in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or
reward, whether the terms of employment be express or implied,and for
the purposes of any proceeding under this Act in relation to an
industrial dispute, includes any such person who has been dismissed,
discharged or retrenched in connection with or as a consequence of,
that dispute, or whose dismissal,discharge or retrenchment has led to
that dispute but does not include any such person who is subject to
Air Force Act, 1950 or Army Act, 1950 or Navy Act, 1957 or who is
employed in police service or who is employed mainly in a managerial
or administrative capacity or or draws wages exceeding one thousand
six hundred rupees per mensem as specified in clause (i) to (iv) of
section 2(s). Looking to the aforesaid definition of workman, if an
employee is employed in supervisory capacity and not drawing wags
exceeding Rs.1600.00 per mensem, then, he is covered by the
definition of workman. Admittedly, at the time of termination of
services of the workman, he was drawing wages of Rs.1325.00 per month
which is not exceeding Rs.1600.00 per mensem. Therefore, it is the
say of the management that the respondent workman is having some
supervisory nature of work to be performed, to direct the subordinate
staff or to take work from assisting workmen or to work as shift
incharge and having control as well as supervision of subordinate
workers. So, merely because a workman is having some supervisory
duties though not having power to employ or discharge any subordinate
staff but not having salary exceeding Rs.1600.00, then, such employee
is not excluded from the definition of workman under section 2(s) of
the ID Act, 1947. It is not the case of the management that the
workman was having power to take independent decision in respect of
the business and policy of company, including the powers to make
appointment and/or to terminate or retrench any subordinate staff.
There is no power invested in the workman to make
appointment/terminate service. There is also no power invested in the
workman to impose punishment or initiate any departmental inquiry
against any employee. Workman is also not invested with any power to
sanction or refuse leave of any staff subordinate to him. These are
the requirements which are to be considered while appreciating as to
whether any particular employee would fall within the definition of
workman under section 2(s) of the ID Act or not and whether such
employee would be excluded from the definition of workman or not.
Therefore, looking to the definition of workman in light of the facts
of the case before hand, it is clear that the post of chemist is
technical post receiving salary not exceeding Rs. 1600.00 per mensum
and also incidentally performing some supervisory work, they cannot
be considered to be managerial or administrative capacity. There is
no iota of evidence produced by the management before the labour
court which would justify that the workman was mainly employed in
managerial or administrative capacity. Learned Advocate Mr. Patel
raised contention before this Court that this definition came into
effect by Act 46 of 1982, sec.2(2) w.e.f. 21.8.1984 and before that
services of workman were terminated at that time, only Rs.1000.00
salary was there. Therefore, according to him, at the time of
termination of services of workman, he was receiving salary exceeding
Rs.1000.00 and, therefore, otherwise also, it was out side the
scope of section 2(s) of the Act. Submission of Mr. Patel is not
correct because in Gujarat, Amendment has come into effect from 1st
August, 1981 and by Gujarat Amendment, salary was increased from
Rs.1000.00 to Rs.1600.00 which aspect has been taken into account by
the Division Bench of this Court in Vallabhbhai Kalyanbhai Sutariya
v. Divisional Controller, GSRTC, Rajkot reported in 1993(2) GLR page
1159. Division Bench of this Curt has taken note of this amendment
and has come to the conclusion that the salary of Rs.1000.00 has been
revised at Rs.1600.00 with effect from 1.8.1981. Therefore, in view
of the Industrial Disputes (Gujarat Amendment) Act,1981, limit of
wages in Sec. 2(2)(iv) of Rs.1000.00 has been raised to Rs.1600.00 by
Amending Act of 1981. Therefore, in view of this, respondent workman
was receiving salary of Rs.1325.00, not exceeding Rs.1600.00 and
considering the decision in case of Burmah Shell Oil Storage and
Distributing CO. of India Ltd. (in CA NO. 1477 of 1970); the Burman
Shell Management of Staff Association (In CA No. 1478 of 1970 v. The
Burmah Shell Management Staff Association and others, reported in AIR
1971 SC 922 = 1970 II LLJ 509 SC and also the other decisions
referred to hereinafter, the post of Chemist is purely a technical
post which would require analysis of raw material which is required
to be applied and while doing that work with the assistance of those
who are helping the workman, chemist may have some limited power or
incidental power to direct to do or not to do some thing and that
cannot be considered to be mainly work of managerial or
administrative capacity or managerial in nature. Burmah Shell Oil
Storage and Distributing CO. of India Ltd. (in CA NO. 1477 of 1970);
the Burman Shell Management of Staff Association (In CA No. 1478 of
1970 v. The Burmah Shell Management Staff Association and others,
reported in AIR 1971 SC 922 = 1970 II LLJ 509 SC, the Apex Court has
observed, in para .24, as under :
“5.
Chemists :
24.
On the question of the duties carried nut by a Chemist, the
Association examined three witnesses. One of them is M. D. Daniel who
had once worked as a Chemist
and is now Foreman (Chemicals). The other two are A. N. Dalal and P.
N. Maroha who are both working as Chemists. They have given their
qualifications and the nature of work done by them. There are, no
doubt, Assistants who assist the Chemists in the laboratory where
their work is carried on ; but all the Chemists do their own work
which is of technical nature. The Chemists have to personally test
the various products received, and also test the products as they are
altered in the installations at various stages. All the tests are
carried out by the Chemists personally and there are only a few
Assistants who do mere routine work in order to assist the Chemist.
The Chemists, no doubt, ensure that the workmen assisting them do
their work properly; but that small amount of supervision is only
incidental to their own technical work of testing and giving the
results of tests to the Company. Even the Company’s witness Harish
Bhargava admitted that the Chemists do a large part of the work
themselves, though he added that the Chemists do guide and direct the
Analysts and Laboratory
Attendant so as to ensure that the work In the laboratory is
performed efficiently and properly. Even his evidence does not show
that this guidance and direction to the laboratory attendant and
analysts is the principal or substantial work for which a Chemist is
employed. In fact, that work is ancillary to the main work which is
done by the Chemists themselves. The decision of the Tribunal,
consequently, in respect of the Chemists, holding them to be employed
on technical work and not in supervisory capacity, must be upheld.
They have rightly been held to be workmen.”
26. In
case of Vallabhbhai Kalyanbhai Sutariya Vs. Divisional Controller,
SRTC, Rajkot, 1993 (2) GLR 1159, the Division Bench of this Court
observed as under in para .2 and 3 :
“2. The
only reason given by the Labour Court for rejecting the Reference on
the ground that the petitioner herein was not a workman was that his
salary was in excess of Rs.1000/- on the date of the reference. It
appears that the Labour Court
has lost sight of the Industrial Disputes (Gujarat Amendment)
Act,1981 (‘the Amending Act” for brief). By this Amending Act,
the limit of Rs.1000/- specified in Sec.2(s) (iv) of the Act has come
into force with effect from 1st
August,1981. It is not in dispute that the date of the Reference in
the instant case is 11th
May,1982. The date of dismissal is 10th
August,1981 by which time the Amending Act was brought into force. In
that view of the matter, the petitioner herein could not have been
held to the outside the purview of the workman as defined in Sec.2(s)
of the Act.
3. This
point has been answered in favour of the petitioner by the Division
Bench ruling of this Court in the case of R.G.Makwana v. Gujarat
State Road Transport Corporation & Anr., reported in 1986 GLH 678
: [1986 (1) GLR 392]. In that case the concerned employee was
dismissed from service prior the date of coming into force of the
Amending Act. The Reference was made after coming into force thereof.
This Court held that what was required to be seen was the concerned
employee’s salary on the date of the Reference. This Division Bench
ruling of this Court in the case of R.G.Makwana (supra) is on all
fours applicable in the present case.”
27. In
case of S.K.Maini Vs. M/s. Carona Sahu Company Ltd. And Others, AIR
1994 SC 1824, the Apex Court has observed in para .9 as under :
“9.
After giving our careful consideration to the facts and circumstances
of the case and the submissions made by the learned counsel for the
parties, it appears to us that whether or not an employee is a
workman under S.2(s) of the Industrial Disputes Act is required to be
determined with reference to his principal nature of duties and
functions. Such question is required to be determined with reference
to the facts and circumstances of the case and materials on record
and it is not possible to lay down any strait-jacket formula which
can decide the dispute as to the real nature of duties and functions
being performed by an
employee in all cases. When an employee is employed to do the types
of work enumerated in the definition of workman under Section 2(s),
there is hardly any difficulty in treating him as a workman under the
appropriate classification but in the complexity of industrial or
commercial organisations quite a large number of employees are often
required to do more than one kind of work. In such cases, it becomes
necessary to determine under which classification the employee will
fall for the purpose of deciding whether he comes within the
definition of workman or goes out of it. In this connection,
reference may be made to the decision of this Court in Burmah Shell
Oil Storage and Distribution Company of India Ltd. v. Burmah Shell
Management Staff Association, (1970) 2 Lab LJ 590 : (AIR 1971 SC
922). In All India Reserve Bank Employees’ Association v. Reserve
Bank of India, (1 965) 2 Lab LJ 175 : (AIR 1966 SC 305), it has been
held by this Court that the word ‘supervise’ and its derivatives are
not words of precise import and must often be construed
in the light of context, for unless controlled, they cover an easily
simple oversight and direction as manual work coupled with the power
of inspection and superintendence of the manual work of others. It
has been rightly, contended by both the learned counsel that the
designation of an employee is not of much importance and what is
important is the nature of duties being performed by the employee.
The determinative factor is the main duties of the concerned employee
and not some works incidentally done. In other words, what is, in
substance, the work which employee does or what in substance he is
employed to do. Viewed from this angle, if the employee is mainly
doing supervisory work but incidentally or for a fraction of time
also some manual or clerical work, the employee should be held to be
doing supervisory works. Conversely, if the main work is of manual,
clerical or of technical nature, the mere fact that some supervisory
or other work is also done by the employee incidentally or only a
small fraction of working
time is devoted to some supervisory works, the employee will come
within the purview of ‘workman’ as defined in S. 2(s) of the
Industrial Disputes Act.”
28. In
case of Ved Prakash Gupta Vs. M/s. Delton Cable India (P) Ltd.
AIR 1984 SC 914, the Apex Court has observed in para .12 and 13 as
under :
“12.
A perusal of the evidence of WW-1 and MW-1 regarding the nature of
the duties performed by the appellant shows that the substantial part
of the work of the appellant consisted of looking after the security
of the factory and its property by deputing the watchmen working
under him to work at the factory gate or sending them to watch-towers
or around the factory or to accompany visitors to the factory and
making entries in the visitors’ register as regards the visitors and
in the concerned registers as regards materials entering or going out
of the premises of the factory. It must be noted that MW-1 has
admitted in his evidence that there is nothing in writing to show
what duties are to be carried out by the appellant. Placed in such a
situation the appellant might have been doing other items of work
such as signing identity cards of workmen, issuing some small items
of stores like torch-cells etc. to his subordinate watchmen, which
can be got from the stores even under the signatures of watchman and
filling up application forms of other workmen and countersigning them
or recommending advances and loans or for promotion of his
subordinates. It must also be remembered that the evidence of both
WW-1 and MW-1 shows that the appellant could never appoint or dismiss
any workman or order any enquiry against any workman. In these
circumstances we hold that the substantial duly of the appellant was
only of a Security Inspector at the gate of the factory premises and
that it was neither managerial not supervisory in nature in the sense
in which those terms are understood in industrial law. In the light
of the evidence and the legal position referred to above we are of
the opinion that the finding of the Labour Court that the appellant
is not a workman within the meaning of Section 2 (s) of the Act is
perverse and could not be supported. On the evidence available on
record we hold that the appellant clearly falls within the definition
of a workman in Section 2 (s) of the Act and that the reference of
the dispute under Section 10 (i) (c) of the Act is valid in law.
13.
The finding of the Labour Court that the enquiry was fair and proper
in the light of its own finding that the enquiry officer failed to
summon the necessary witnesses and rejected the request of the
appellant for challenging the witnesses could not be stated to be
correct. On the merits some witnesses were examined on the side of
the management before the Labour Court and they are S. K. Bagga,
MW-2, Hira Lal, MW-3, Deep Chand, MW-4 and Laxmi Chand, MW-5 an
Accountant of M/s. Gurumukh Dass MW-2 has deposed about the appellant
abusing Durg Singh who according to the appellant was the Secretary
of a Labour Union while the appellant and others were trying to
canvass membership for a rival trade union. MWs-3 and 4 are stated to
have corroborated the evidence of MW-2. MW-5 is the only independent
witness examined on the side of the management. It is seen from the
judgment of the Labour Court relating to the merits of the case that
MW-5 who has deposed about the challans Exts M-7 and M-8 having been
returned to the person who accompanied him from the maintenance
department had not supported the management that the appellant abused
Durg Singh or any other person within the premises of the factory. It
is also seen from the judgment of the Labour Court that though the
appellant had produced before the Enquiry Officer 5 sheets of papers
with the signatures of about 100 workmen of the factory in support of
the statement that the appellant had not abused anyone in the factory
during the course of his service and the management had produced Exts
M-6, a list of 90 persons before the Enquiry Officer, he had not
called any of those persons to ascertain the truth regarding the
alleged abuse of Durg Singh and S. K. Bagga by the appellant. It is
also seen from the judgment of the Labour Court that the appellant
was not given a list of the management’s witnesses before the
commencement of the domestic enquiry. In these circumstances, we are
of the opinion that the conclusion of the Labour Court that the
Enquiry Officer had not acted properly in the proceedings and that he
had not given full opportunity to the appellant as required by law
does not call for any interference. The charge levelled against the
appellant is not a serious one and it is not known how the charge
even if proved would result in any much less total loss of confidence
of the management in the appellant as the management would have it in
the charge. It was argued in the Labour Court that there was no
previous adverse remark against the appellant. There is nothing on
record to show that any previous adverse remark against the appellant
had been taken into consideration by the management for awarding the
extreme penalty of dismissal from service to the appellant even if he
had in fact abused in filthy language Durg Singh and S. K. Bagga. We
are therefore of the opinion that the punishment awarded to the
appellant is shockingly disproportionate regard being had to the
charge framed against him. We are also of the opinion that no
responsible employer would ever impose in like circumstances the
punishment of dismissal to the employee and that victimization or
unfair labour practice could well be interred from the conduct of the
management in awarding the extreme punishment of dismissal for a
flimsy charge of abuse of some worker or officer of the management by
the appellant within the premises of the factory. We therefore hold
that the termination of the appellant’s service is invalid and
unsustainable in law, and that he is entitled to reinstatement with
full back wages and other benefits including continuity of, service
The appeal is allowed accordingly with costs quantified at Rupees
1,000/-. The writ petition is dismissed without costs.”
29. In
case of Shri Sudhirkumar s/o Sourindrakumar Roy v. M/s. Ferro Alloys
Corporation Ltd. 1992 LAB.I.C.657, the Bombay High Court observed in
para .8, 9 and 14 as under:
“8. After
carefully scrutinizing the evidence it appears that the petitioner’s
main function was that of the Chemist-in-Charge and whatever
supervisory work he discharged that was just incidental to his job.
Taking the evidence as a whole, it cannot be said that the petitioner
was mainly discharging the duties of a supervisory nature. In Arkal
Govind Raj Rao v. Ciba Geigy of India Ltd., AIR 1985 SC 985 : (1985
Lab IC 1008) in para 8 of the judgment, the Supreme Court has
observed as under (at page SC 987; of AIR) :
“The
definition of the expression workman hereinbefore extracted clearly
shows that the person concerned would not cease to be a workman if he
performs some supervisory duties but he must be a person who must be
engaged in a supervisory capacity. Even as a Group Leader of Group
II, the evidence produced would show that primarily he continued to
work and perform the same duties which have been found to be clerical
but along with others in the group he also incidentally looked after
the work of other members of the group who were only two in number.
It is, therefore, not possible to concur with the inference drawn by
the Labour Court contrary to the record that while functioning as
Group Leader of Group II, even though appellant was performing his
clerical duty the incidental supervisory duties performed by him
would make the appellant a person employed in supervisory capacity.”
9. In
Burmah Shell Oil Storage and Distributing Co. of India Ltd. V. The
Burmah Sheel Management Staff Association, AIR 1971 SC 922 : (1971
Lab IC 699), it has been observed as under :
(at
page 713; of Lab IC 1971) :
‘On
the question of the duties carried nut by a Chemist, the Association
examined three witnesses. One of them is M. D. Daniel who had once
worked as a Chemist and is now Foreman (Chemicals). The other two are
A. N. Dalal and P. N. Maroha who are both working as Chemists. They
have given their qualifications and the nature of work done by them.
There are, no doubt, Assistants who assist the Chemists in the
laboratory where their work is carried on ; but all the Chemists do
their own work which is of technical nature. The Chemists have to
personally test the various products received, and also test the
products as they are altered in the installations at various stages.
All the tests are carried out by the Chemists personally and there
are only a few Assistants who do mere routine work in order to assist
the Chemist. The Chemists, no doubt, ensure that the workmen
assisting them do their work properly; but that small amount of
supervision is only incidental to their own technical work of testing
and giving the results of tests to the Company. Even the Company’s
witness Harish Bhargava admitted that the Chemists do a large part of
the work themselves, though he added that the Chemists do guide and
direct the Analysts and Laboratory Attendant so as to ensure that the
work In the laboratory is performed efficiently and properly. Even
his evidence does not show that this guidance and direction to the
laboratory attendant and analysts is the principal or substantial
work for which a Chemist is employed. In fact, that work is ancillary
to the main work which is done by the Chemists themselves. The
decision of the Tribunal, consequently, in respect of the
Chemists, holding them to be employed on technical work and not in
supervisory capacity, must be upheld. They have rightly been held to
be workmen.’
The
ratio of the above decision seems to be that mere giving of guidance
and direction to the Laboratory Attendants and Chemists cannot be
said to be principal or substantial work for which a Chemist is
employed. Such work appears to be ancillary to the main work which is
done by the Chemist. This is exactly the position in the present
case.
14. Mr.Vaidya
rightly argued that the burden was on the respondent employer to show
that the petitioner was working in a supervisory capacity. From the
evidence on record, I am of the opinion that the respondent has
miserably failed to prove that the petitioner was working in a
supervisory capacity. The respondent has not produced any material on
record to show that the petitioner
was working in a supervisory capacity. Even the evidence led on
behalf of the respondent does not show that the petitioner was
employed in a supervisory capacity. On the other hand, there is
overwhelming evidence to show that he was employed as Chemist and was
essentially discharging his functions as Chemist. Whatever
supervisory work he did that was ancillary to the job. His
substantial and primary function remained that of a Chemist. Having
regard to these facts, I hold that the petitioner was a ‘workman’
within the meaning of S.2(s) of Industrial Disputes Act. In view of
this, the matter is remanded back to the lower Court for decision on
merit. No order as to costs.”
30. Therefore,
according to my opinion, contention raised by Mr. Patel that the
respondent was not covered by the definition of workman under section
2(s) of the Act cannot be accepted and labour court was right in
appreciating this aspect of the matter.
35. In
case when the labour court comes to the conclusion that the
order/action of termination of a workman is unjustified and contrary
to the principles of natural justice, and it has been passed without
affording an opportunity of hearing to employee concerned, then, in
such circumstances, reinstatement cannot be denied to the workman.
That aspect has been examined by the apex court in The Workmen of
Assam Match CO. Ltd. And The Presiding Officer, Labour Court, Assam
and Another, reported in 1973 II LLJ 279. The relevant observations
made by the Apex Court in paragraph 5, 7, 8 and 9 are reproduced as
under:
“5. In
our opinion, the answer to the question raised by the appellants must
unhesitatingly be given in their favour. It is well-settled that
where in an industrial dispute arising out of a dismissal of a
workman, it is established that the impugned dismissal was
unjustified, normal rule is that the dismissed workm an should be
reinstated. In regard to disciplinary actions which the employees are
entitled to take against their employees, the position in law is no
longer in doubt. The employer can hold an enquiry against his
employee whenever the employer feels that the employee has committed
misconduct as a result of which he should be dismissed from service.
If the enquiry is properly conducted and the conclusion reached at
the enquiry does not appear to be perverse the impugned order of
dismissal cannot be successfully challenged before the Tribunal. On
the other hand, if the enquiry is not properly conducted or the
findings recorded at the said enquiry appear to be perverse in the
sense that they are not justified by any evidence whatever, the
Industrial Tribunal can examine the question about the alleged
misconduct of the employee on evidence which may be adduced before it
by the employer and decide whether the employer is entitled to
dismiss the employee. These principles have been laid down by this
Court in several decisions, and both the parties have argued the
present appeal before us on the basis of these principles.
6. xxx
7. We
are not impressed by this argument. As we have repeatedly pointed
out, if an employer is shown to have dismissed his employee without
justification and the decision of the dispute resulting from such
illegal dismissal takes place, it cannot be urged by the employer
that by reason of passage of time, reinstatement should not be
ordered. One of the objects which industrial adjudication has to keep
in mind is to assure industrial employees security of tenure. There
is no doubt that security of tenure for industrial employment tends
to create harmonious relations between the employer and the employee,
and so this Court has consistently held that in cases of wrongful or
illegal dismissal, the normal rule is that the employee who has been
illegally or wrongfully dismissed should be reinstated. We are,
therefore, satisfied that the contention raised by the
Solicitor-General against reinstatement on the ground of passage of
time cannot be accepted.
8. It
is then urged that the Tribunal was justified in taking into account
the fact that having regard to what has happened in the present
proceedings, it should be held that the respondent has lost
confidence in Dutt and that would be a ground for refusing
reinstatement to him. This argument is plainly misconceived. We do
not think it would be possible to accept the contention that even if
an employer is shown to have dismissed his employee wrongfully and
without justification, the fact that he has adopted such a course
(sic) should be taken into account while determining whether
reinstatement should be ordered or not. It would, we think, be
unfair to allow an employer in such a case to urge that though the
charge framed against his employee was not justified, the fact that a
domestic enquiry was held against him on such a charge has led to a
loss of confidence in the mind of the employer, and so, the employee
should not be reinstated. If this contention were to prevail, the
industrial employees who are illegally or unjustifiably dismissed
would never get the relief of reinstatement. Cases may conceivably
arise where the plea of loss of confidence may and can be entertained
but we have no doubt that the present case does not fall under that
category.
9. Beside,
we cannot over look the fact that on the findings of the Tribunal,
the record of Dutt for 11 years in the employment of the respondent
has been without a blemish. Dutt is, therefore, entitled to claim
reinstatement with the respondent when he is shown to have served the
respondent for 11 long years, and it appears that ordinarily he is
entitled to look forward to another long spell of service with the
respondent. It is remarkable that though Hussain was similarly charge
sheeted by the respondent and was ordered to be dismissed, on the
findings recorded by the Tribunal, his reinstatement has been
ordered. We wee no distinction between the case of Hussain and that
of Dutt. The fact that Dutt was a foreman in charge of the motor
vehicles of the respondent and Hussain was driver of one these
vehicles cannot make any difference to the decision of the question
with which we are concerned.”
21. In
Industrial Law, burden of prove or burden of
proving a fact lies on the party ascertaining the affirmative of the
issue and not on the party who denied it. It is for the employer to
prove misconduct, for which, workman was dismissed or discharged. In
the first instance, workman cannot be asked to prove that he has not
committed any act tantamounting to misconduct. Right of employer to
adduce additional evidence in a proceedings questioning the legality
of order of terminating service must be availed of by making a proper
request at the time of filing statement of claim or written
statement. When workman is terminated without inquiry, onus to prove
that it was not possible to conduct inquiry and that termination was
justified because of misconduct committed by employee lies on
management. This aspect, in detail, recently considered by Apex Court
in case of Amar Chakravarty & Ors. v. Maruti Suzuki
India Ltd.,
reported in 2010 (8) Supreme 299.
Relevant paragraphs 13 to 17 are quoted as under :
“13. In
our opinion, in light of the settled legal position on the point, the
judgment of the High Court is clearly indefensible. Whilst it is true
that the provisions of the Evidence Act, 1872 per se are not
applicable in an industrial adjudication, it is trite that its
general principles do apply in proceedings before the Industrial
Tribunal or the Labour Court, as the case may be. (See: Municipal
Corporation, Faridabad Vs. Siri Niwas5). In any proceeding, the
burden of proving a fact lies on the party that substantially asserts
the affirmative of the issue, and not on the party who denies it.
(See: Anil Rishi Vs. Gurbaksh Singh6) Therefore, it follows that
where an employer asserts misconduct on the part of the workman and
dismisses or discharges him on that ground, it is for him to prove
misconduct by the workman before the Industrial Tribunal or the
Labour Court, as the case may be, by leading relevant evidence before
it and it is open to the workman to adduce evidence contra. In the
first instance, a workman cannot be asked to prove that he has not
committed any act tantamounting to misconduct.
14. In
Karnataka State Road Transport Corporation (supra) relied upon by
learned counsel for the appellant, a Constitution Bench of this Court
affirmed the decision of this Court in Shambu Nath Goyal Vs. Bank of
Baroda & Ors.7, wherein the issue for consideration was as to at
what stage, the management is entitled to seek permission to adduce
evidence in justification of its decision to terminate the services
of an employee. It was held that the right of the employer to adduce
additional evidence, in a proceeding before the Labour Court under
Section 10 of the Act, questioning the legality of the order
terminating the service must be availed of by the employer by making
a proper request at the time when it files its statement of claim or
written statement. It was observed that:
“The
management is made aware of the workman’s contention regarding the
defect in the domestic enquiry by the written statement of defence
filed by him in the application filed by the management under Section
33 of the Act. Then, if the management chooses to exercise its right
it must make up its mind at the earliest stage and file the
application for that purpose without any unreasonable delay.”
15. Similarly,
in The Workmen of M/s Firestone Tyre & Rubber Co. (supra), this
court observed that :
“Even
if no enquiry has been held by an employer or if the enquiry held by
him is found to be defective, the Tribunal in order to satisfy itself
about the legality and validity of the order, had to give an
opportunity to the employer and employee to adduce evidence before
it. It is open to the employer to adduce evidence for the first time
justifying his action, and it is open to the employee to adduce
evidence contra.” (See also: United Bank of India Vs. Tamil Nadu
Banks Deposit Collectors Union & Anr.8; Engineering Laghu Udyog
Employees’ Union Vs. Judge, Labour Court and Industrial Tribunal &
Anr.9 emphasis supplied by us)
16. In
our opinion, the decisions in Manager, Reserve Bank of India (supra)
and Talwara Cooperative Credit and Service Society Limited (supra)
relied upon by the learned counsel for the respondent have no bearing
on the issue at hand in as much as the said decisions deal with the
onus of proof in relation to proving 240 days of continuous service
and entitlement to back wages respectively, for which the claims were
made by the workmen, which is not the case here. In the present case,
as stated above, the assertion to the effect that it was not
practical to hold domestic enquiry to prove the misconduct of the
workman was by the employer and therefore, the assertion has to be
proved by the employer and not by the workman.
17. In
view of the aforesaid position in law, the inevitable conclusion is
that when no enquiry is conducted before the service of a workman is
terminated, the onus to prove that it was not possible to conduct the
enquiry and that the termination was justified because of misconduct
by the employee, lies on the management. It bears repetition that it
is for the management to prove, by adducing evidence, that the
workman is guilty of misconduct and that the action taken by it is
proper. In the present case, the services of the appellants-workmen
having been terminated on the ground of misconduct, without holding a
domestic enquiry, it would be for the management to adduce evidence
to justify its action. It will be open to the appellants-workmen to
adduce evidence in rebuttal. Therefore, the order passed by the
Labour Court, shifting the burden to prove issue No. 1 on the workmen
is fallacious and the High Court should have quashed it.”
22. In
light of various decisions relied upon by learned advocate Mr. B.S.
Patel and one decision of this Court relied upon by learned advocate
Mr. P.H. Pathak and considering reasoning given by Labour Court,
Bharuch and also order of termination passed by petitioner society on
the ground of loss of confidence without holding departmental inquiry
and even without calling any explanation from respondent, apparently,
termination order is found to be stigmatic and clear allegations have
been made against respondent that he was also involved in other
misconduct, even though, no show-cause notice has been issued prior
to passing of termination order. No departmental inquiry was held
against him and just to receive an information dated 10th
February, 2000 from PSI Mr. Parmar that respondent was arrested
during course of employment from society, that letter itself became a
cause or ground to terminate services of respondent. But, petitioner
society has not taken care to find out that is there any material
available with petitioner society regarding involvement of respondent
in criminal offence or not ? For that, there is no material at all
placed on record before Labour Court. Even allegations levelled
against respondent of loss of confidence is also not proved while
leading proper evidence by petitioner society. The FIR is produced on
record, page 34. In that FIR, name of respondent is not mentioned as
an accused, but, name of accused is Champakbhai A. Vasava. A
complaint has been filed by Shri Patel, Branch Manager and Shri
Amthabhai. Even in that complaint also, name of respondent is not
disclosed as an accused an no involvement has been pointed in
complaint against respondent. Therefore, there is no material at all
placed on record by petitioner society before Labour Court which
justified stand of loss of confidence for terminating service of
respondent. So, law is settled that if service of employee terminated
grounded on the basis of loss of confidence,
then, holding of departmental inquiry is condition precedent as per
Apex Court’s decision as referred above and if departmental inquiry
did not held at the time of terminating services, then, at the time
of adjudication before Labour Court, petitioner society must have to
justify such termination based on loss of confidence, but, according
to my opinion, petitioner society has failed to establish allegations
based on loss of confidence against respondent before Labour Court.
If termination is violated basic principles of natural justice and
departmental inquiry did not held against respondent, then, it is
considered to be a simple termination, then, simple termination
amounts to retrenchment under Section 2 (oo) of ID Act and for that,
Section 25F of ID Act must have to be satisfied being a condition
precedent which has not been followed undisputedly by petitioner
society before terminating service of respondent. Therefore, order of
termination which amounts to retrenchment is considered to be ab
initio void as decided by Apex
Court in case of Mohan Lal v. The Management of M/s.
Bharat Electronics Ltd.
reported in AIR 1981 SC 1253.
Therefore, when management has exercised powers without any material
or base or record and simply respondent was arrested, that itself is
not enough to terminate services of respondent, but, there must be
some material or record which is necessary to prove involvement of
respondent in criminal offence. That material was not produced which
proved involvement of respondent in criminal offence.
23. Therefore,
according to my opinion, Labour Court has rightly examined matter and
rightly considered evidence on record and also properly dealt with
submission made by petitioner society and Labour Court has examined
issue based on facts and finding of fact recorded by Labour Court
cannot consider to be a baseless and perverse or contrary to record.
This Court having limited jurisdiction under Article 227 of
Constitution of India. This Court cannot reappreciate evidence which
has been appreciated by Labour Court. This Court cannot act as an
appellate authority and in such circumstances, this Court having very
limited jurisdiction under Article 227 of Constitution of India.
24. The
Apex Court has considered issue of interference by this Court while
exercising power under Article 227 of Constitution of India in case
of Harjinder Singh v. Punjab State Warehousing Corporation
reported
in 2010(1) Scale 613.
The relevant para 10 and 11
are quoted as under :
“10.
We have considered the respective submissions.
In our opinion, the impugned order is liable to be set aside only on
the ground that while interfering with the award of the Labour Court,
the learned Single Judge did not keep in view the parameters laid
down by this Court for exercise of jurisdiction by the High Court
under Articles 226 and/or 227 of
the Constitution – Syed Yakoob v. K.S. Radhakrishnan and others, AIR
1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and others 2003 (6)
SCC 675. In Syed Yakoob’s case, this Court delineated the scope of
the writ of certiorari in the following words:
“The
question about the limits of the jurisdiction of High Courts in
issuing a writ of certiorari under Article 226 has been frequently
considered by this Court and the true legal position in that behalf
is no longer in doubt. A writ of certiorari can be issued for
correcting errors of jurisdiction committed by inferior courts or
tribunals: these are cases where orders are passed by inferior courts
or tribunals without jurisdiction, or is in excess of it, or as a
result of failure to exercise jurisdiction. A writ can similarly be
issued where in exercise of jurisdiction
conferred on it, the Court or Tribunal acts illegally or properly, as
for instance, it decides a question without giving an opportunity, be
heard to the party affected by the order, or where the procedure
adopted in dealing with the
dispute is opposed to principles of natural justice. There is,
however, no doubt that the jurisdiction to issue a writ of certiorari
is a supervisory jurisdiction and the Court exercising it is not
entitled to act as an appellate Court. This limitation necessarily
means that findings of fact reached by the inferior Court or Tribunal
as result of the appreciation of evidence cannot be reopened or
questioned in writ proceedings. An error of law which is apparent on
the face of the record can be corrected by a writ, but not an error
of fact, however grave it may appear to be. In regard to a finding of
fact recorded by the Tribunal, a writ of certiorari can be issued if
it is shown that in recording the said finding, the Tribunal had
erroneously refused to admit admissible and material evidence,
or had erroneously admitted inadmissible evidence which has
influenced the impugned finding. Similarly, if a finding of fact is
based on no evidence, that would be regarded as an error of law which
can be corrected by a writ of certiorari.
In dealing with this category of cases, however, we must always bear
in mind that a finding of fact recorded by the Tribunal cannot be
challenged in proceedings for a writ of certiorari on the ground that
the relevant and material evidence adduced before the Tribunal was
insufficient or inadequate to sustain the impugned finding. The
adequacy or sufficiency of evidence led on a point and the inference
of fact to be drawn from the said finding are within the exclusive
jurisdiction of the Tribunal, and the said points cannot be agitated
before a writ Court. It is within these limits that the jurisdiction
conferred on the High Courts under Article 226 to issue a writ of
certiorari can be legitimately exercised (vide Hari Vishnu Kamath v.
Syed Ahmad Ishaque 1955 (1) SCR 1104, Nagandra Nath Bora
v. Commissioner of Hills Division and Appeals Assam 1958 SCR 1240 and
Kaushalya Devi v. Bachittar Singh AIR 1960 SC 1168).
It
is, of course, not easy to define or adequately describe what an
error of law apparent on the face of the record means. What can be
corrected by a writ has to be an error of law; hut it must be such an
error of law as can be regarded as one which is apparent on the face
of the record. Where it
is
manifest or clear that the conclusion of law recorded by an inferior
Court or Tribunal is based on an obvious mis-interpretation of the
relevant statutory provision, or sometimes in ignorance of it, or may
be, even in disregard of it, or is expressly founded on reasons which
are wrong in law, the said conclusion can be corrected by a writ of
certiorari. In all these cases, the impugned conclusion should be so
plainly inconsistent with the relevant statutory provision that no
difficulty is experienced by the High Court in holding that the said
error of law is apparent on the face of the record. It may also be
that in some cases, the impugned error of law may not be obvious or
patent on the face of the record as such and the Court may need an
argument to discover the said error; but there can be no doubt that
what can be corrected by a
writ of certiorari is an error of law and the said error must, on the
whole, be of such a character as would satisfy the test that it is an
error of law apparent on the face of the record. If a statutory
provision is reasonably capable of two constructions and one
construction has been
adopted by the inferior Court or Tribunal, its conclusion may not
necessarily or always be open to correction by a writ of certiorari.
In our opinion, it is neither possible nor desirable to attempt
either to define or to describe adequately all cases of errors which
can be appropriately described as errors of law apparent on the face
of the record. Whether or not an impugned error is an error of law
and an error of law which is apparent on the face of the record, must
always depend upon the facts and circumstances of each case and upon
the nature and scope of the legal provision which is alleged to have
been misconstrued or contravened.”
11.
In Surya Dev Rai’s case, a two-Judge Bench, after threadbare analysis
of Articles 226 and 227 of the Constitution and considering large
number of judicial precedents, recorded the following conclusions:
“(1)
Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115
of the Code of Civil Procedure cannot and does not affect in any
manner the jurisdiction of the High Court under Articles 226 and 227
of the Constitution.
(2)
Interlocutory orders, passed by the courts subordinate to the High
Court, against which remedy of revision has been excluded by CPC
Amendment Act 46 of 1999 are nevertheless open to challenge in, and
continue to be subject to, certiorari and supervisory jurisdiction of
the High Court.
(3)
Certiorari, under Article 226 of the Constitution, is issued for
correcting gross errors of jurisdiction i.e. when a subordinate court
is found to have acted (i) without jurisdiction — by assuming
jurisdiction where there exists none, or (ii) in excess of its
jurisdiction — by overstepping or crossing the limits of
jurisdiction, or (iii) acting in flagrant disregard of law or the
rules of procedure or acting in violation of principles of natural
justice where there is no procedure specified, and thereby
occasioning failure of justice.
(4)
Supervisory jurisdiction under Article 227 of the Constitution is
exercised for keeping the subordinate courts within the bounds of
their jurisdiction. When a subordinate court has assumed a
jurisdiction which it does not have or has failed to exercise a
jurisdiction which it does have or the jurisdiction though available
is being exercised by the court in a manner not permitted by law and
failure of justice or grave injustice has occasioned thereby, the
High Court may step in to exercise its supervisory jurisdiction.
(5)
Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact or of
law unless the following requirements are satisfied: (i) the error is
manifest and apparent on the face of the proceedings such as when it
is based on clear ignorance or utter disregard of the provisions of
law, and (ii) a grave injustice or gross failure of justice has
occasioned thereby.
(6)
A patent error is an error which is self-evident i.e. which can be
perceived or demonstrated without involving into any lengthy or
complicated argument or a long-drawn process of reasoning. Where two
inferences are reasonably possible and the subordinate court has
chosen to take one view, the error cannot be called gross or patent.
(7)
The power to issue a writ of certiorari and the supervisory
jurisdiction are to be exercised sparingly and only in appropriate
cases where the judicial conscience of the High Court dictates it to
act lest a gross failure of justice or grave injustice should
occasion. Care, caution and circumspection need to be exercised, when
any of the abovesaid two jurisdictions is sought to be invoked during
the pendency of any suit or proceedings in a subordinate court and
the error though calling for correction is yet capable of being
corrected at the conclusion of the proceedings in an appeal or
revision preferred thereagainst and entertaining a petition invoking
certiorari or supervisory jurisdiction of the High Court would
obstruct the smooth flow and/or early disposal of the suit or
proceedings. The High Court may feel inclined to intervene where the
error is such, as, if not corrected at that very moment, may become
incapable of correction at a later stage and refusal to intervene
would result in travesty of justice or where such refusal itself
would result in prolonging of the lis.
(8)
The High Court in exercise of certiorari or supervisory jurisdiction
will not convert itself into a court of appeal and indulge in
reappreciation or evaluation of evidence or correct errors in drawing
inferences or correct errors of mere formal or technical character.
(9)
In practice, the parameters for exercising jurisdiction to issue a
writ of certiorari and those calling for exercise of supervisory
jurisdiction are almost similar and the width of jurisdiction
exercised by the High Courts in India unlike English courts has
almost obliterated the distinction between the two jurisdictions.
While exercising jurisdiction to issue a writ of certiorari, the High
Court may annul or set aside the act, order or proceedings of the
subordinate courts but cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction the High Court may
not only give suitable directions so as to guide the subordinate
court as to the manner in which it would act or proceed thereafter or
afresh, the High Court may in appropriate cases itself make an order
in supersession or substitution of the order of the subordinate court
as the court should have made in the facts and circumstances of the
case.”
A
reading of the impugned order shows that
the learned Single Judge did not find any jurisdictional error in the
award of the Labour Court. He also did not find that the award was
vitiated by any error of law apparent on the face of the record or
that there was violation of rules of natural justice. As a matter of
fact, the learned Single Judge rejected the argument of the
corporation that termination of the appellant’s service falls within
the ambit of Section 2(oo)(bb) of the Act, and expressed unequivocal
agreement with the Labour Court that the action taken by the Managing
Director of corporation was contrary to Section 25G of the Act which
embodies the rule of last come first go. Notwithstanding this, the
learned Single Judge substituted the award of reinstatement of the
appellant with compensation of Rs.87,582/- by assuming that appellant
was initially appointed without complying with the equality clause
enshrined in Articles 14 and 16 of the Constitution of India and the
relevant regulations. While doing so, the learned Single
Judge failed to notice that in the reply filed on behalf of the
corporation before the Labour Court, the appellant’s claim for
reinstatement with back wages was not resisted on the ground that his
initial appointment was illegal or unconstitutional and that neither
any evidence was produced nor
any argument was advanced in that regard. Therefore, the Labour Court
did not get any opportunity to consider the issue whether
reinstatement should be denied to the appellant by applying the new
jurisprudence developed by the superior courts in recent years that
the court should not pass an award which may result in perpetuation
of illegality. This being the position, the learned Single Judge was
not at all justified in entertaining the new plea raised on behalf of
the corporation for the first time during the course of arguments and
over turn an otherwise well reasoned award passed by the Labour Court
and deprive the appellant of what may be the only source of his own
sustenance and that of his family.”
25. Apex
Court has also considered similar question in case of Jai
Singh & Ors. v. Municipal Corporation of Delhi and Anr. With
Municipal Corporation of Delhi v. Sh. Jai Singh and Ors., 2010 AIR
SCW pg. 5968.
Relevant para 25
of said judgment is quoted as under:
“25.
Undoubtedly, the High Court has the power to reach
injustice whenever, wherever found. The scope and ambit of Article
227 of the Constitution of India had been discussed in the case of
The Estralla Rubber Vs. Dass Estate (P) Ltd., [(2001) 8 SCC 97]
wherein it was observed as follows:
“The
scope and ambit of exercise of power and jurisdiction by a High
Court under Article 227 of the Constitution of India is examined
and explained in a number of decisions of this Court. The exercise
of power under this article involves a duty on the High Court to
keep inferior courts and tribunals within the bounds of their
authority and to see that they do the duty expected or required of
them in a legal manner. The High Court is not vested with any
unlimited prerogative to correct all kinds of hardship or wrong
decisions made within the limits of the jurisdiction of the
subordinate courts or tribunals. Exercise of this power and
interfering with the orders of the courts or tribunals is
restricted to cases of serious dereliction of duty and flagrant
violation of fundamental principles of law or justice, where if the
High Court does not interfere, a grave injustice remains
uncorrected. It is also well settled that the High Court while
acting under this article cannot exercise its power as an appellate
court or substitute its own judgment in place of that of the
subordinate court to correct an error, which is not apparent on the
face of the record. The High Court can set aside or ignore the
findings of facts of an inferior court or tribunal, if there is no
evidence at all to justify or the finding is so perverse, that no
reasonable person can possibly come to such a conclusion, which the
court or tribunal has come to.”
In
our opinion, the High Court committed a serious error of
jurisdiction in entertaining the writ petition filed by MCD under
Article 227 of the Constitution of India in the peculiar
circumstances of this case. The decision to exercise jurisdiction
had to be taken in accordance with the accepted norms of care,
caution, circumspection. The issue herein only related to a tenancy
and subletting. There was no lis relating to the ownership of the
land on which the superstructure or the demised premises had been
constructed. The whole issue of ownership of plot of land No:2,
Block-B, transport area of Jhandewalan Estate, Desh Bandhu Gupta
Road, Karol Bagh, New Delhi is the subject matter of a civil suit
being Suit No: 361 of 1980 in the High Court of Delhi. The High
Court, therefore, ought not to have given any opinion on the
question of ownership.”
26. In
MA Azim v. Maharashtra State Road Transport Corporation,
2011-I-CLR 283, it
has been observed by Bombay High Court as under in para
11 and 12:
“11. At
this stage, it would be appropriate to refer to few important
judgments of Hon’ble Supreme Court and this Court laying down
therein the scope to entertain petition under of Article 226 and 227
of the Constitution of India. The Hon’ble Supreme Court in a case of
“Nagendra Nath Bora and Anr. v. Commissioner of Hills Division
and Appeals, Assam & Ors., reported in AIR 1958 SC 398″ in
para No. 30 held thus:-
“30.
the powers of judicial interference under Art. 227 of the
Constitution with orders of judicial or quasi-judicial nature, are
not greater than the powers under Art. 226 of the Constitution.
Under Art. 226, the power of interference may extend to quashing an
impugned order on the ground of a mistake apparent on the face of
the record. But under Art. 227 of the Constitution, the power of
interference is limited to seeing that the tribunal functions within
the limits of its authority. ”
Yet
in another case, in a case of “Surya Dev Rai v. Ram Chander
Rai, reported in AIR 2003 SC 3044″ the Hon’ble Supreme in
its conclusion held :-
(5)
Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact or
of law unless the following requirements are satisfied : (i) the
error is manifest and apparent on the face of the proceedings
such as when it is based on clear ignorance or utter disregard of
the provisions of law, and (iii) a grave injustice or gross
failure of justice has occasioned thereby.
(6)
A patent error is an error which is self-evident, i.e., which can
be perceived or demonstrated without involving into any lengthy
or complicated argument
or a long-drawn process of reasoning. Where two inferences are
reasonably possible and the subordinate court has chosen to take
one view the error cannot be called gross or patent.
(7)
The power to issue a writ of certiorari and the supervisory
jurisdiction are to be exercised sparingly and only in
appropriate cases where the judicial conscience of the High Court
dictates it to act lest a gross failure of justice or grave
injustice should occasion. Care, caution and circumspection need
to be exercised, when any of the abovesaid two jurisdictions is
sought to be invoked during the pendency of any suit or
proceedings in a subordinate court and error though calling for
correction is yet capable of being corrected at the conclusion of
the proceedings in an appeal or revision preferred there against
and entertaining a petition invoking certiorari or supervisory
jurisdiction of High Court would obstruct the smooth flow and/or
early disposal of the
suit or proceedings. The High Court may feel inclined to
intervene where the error is such, as, if not corrected at that
very moment, may become incapable of correction at a later stage
and refusal to intervene
would result in travesty of justice or where such refusal itself
would result in prolonging of the lis.
(8)
The High Court in exercise of certiorari or supervisory
jurisdiction will not covert itself into a Court of Appeal and
indulge in re-appreciation or evaluation of evidence or correct
errors in drawing inferences or correct errors of mere formal or
technical character.
And
in a case of Babulal S/o. Navalmal Pipada v. Dropadbai W/o.Manohar
Gore & Others reported in 2010(5) Mh. LJ, this Court has held
thus:
“One
cannot be oblivious of the parameters required to be observed for
the purpose of exercising supervisory jurisdiction under Article 227
of the Constitution of India.Unless it is demonstrated that the
impugned judgment suffers from vice of perversity, arbitrariness or
is rendered without considering material evidence or is rendered on
the basis of no material interference with the finding of
Courts/Tribunals is impermissible. The writ jurisdiction cannot be
invoked for reappreciating of the evidence or for the purpose of
rectification of minor errors committed by the Tribunals. Unless it
is demonstrated that the view taken by the MRT is per se against the
settled principles of law, it is difficult to interfere with the
findings recorded by the Tribunals below.
12. Therefore,
it is clear from the pronouncements of Supreme Court and this Court
which are referred supra that the Writ Jurisdiction cannot be invoked
for reappreciating the evidence or for the purpose of rectification a
minor errors committed by the Tribunals. Supervisory jurisdiction
under Article 227 cannot be invoked unless it is demonstrated that
the impugned judgments suffers from the vice of perversity,
arbitrariness or is rendered without considering material evidence or
is rendered on the basis of
no material evidence or is
rendered on the basis of no material, interference with the findings
of Courts/Tribunals is impermissible. Therefore, in light of above,
it is relevant to summarized here in below the findings recorded by
the Labour Court on the basis of evidence
brought on record by the parties.”
27. Therefore,
contentions raised by learned advocate Mr. B.S. Patel appearing on
behalf of petitioner society cannot be accepted, hence, rejected in
light of aforesaid reasoning given by this Court.
28. Therefore,
there is no substance in present petition. Accordingly, present
petition is dismissed. Notice discharged. No order as to costs.
[H.K.
RATHOD, J.]
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