IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 647 of 1985
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MAFATLAL ENGINEERING IND LTD.
Versus
FELIS CARVALHO
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Appearance:
1. Special Civil Application No. 647 of 1985
MR VIMAL PATEL FOR MR KS NANAVATI for Petitioner No. 1
RULE UNSERVED for Respondent No. 1
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CORAM : MR.JUSTICE H.K.RATHOD
Date of Order: 09/01/2002
ORAL ORDER
#. Heard Mr.Vimal Patel, learned advocate for
Mr.K.S.Nanavati, appearing on behalf of the petitioner.
#. In the present petition, the petitioner has
challenged the award passed by the Labour Court, Baroda
in Reference No.156 / 1982 vide Exh.64 dated 18th
December, 1984. This Court has issued RULE and granted
Ad-interim stay by order dated 9th July, 1985. However,
service of Rule, despite of many efforts have made by the
petitioner as well as Registrar of this Court, but
unfortunately, could not be served on the respondent.
But according to the office note, notice of rule has been
served on the respondent by affixing as the respondent is
not found. It is further noticed that thereafter fresh
notice issued on the respondent, also returned unserved
as “respondent not residing at given address”.
Thereafter this matter was placed before the Court of
Joint Registrar and Registrar has ordered that action to
be taken on or before 6th April, 1995 failing the matter
will stand dismissed for non prosecution as the
respondent being sole respondent but despite this, no
action has been taken by the petitioner though time
extended on several occasions. Thus, in view of the
office note, notice of rule is already affixed at the
residence of respondent but despite this, the respondent
has not appeared in the present proceedings.
#. Apart from the facts discussed above, if the impugned
award passed by the labour court is taken into
consideration, it reveals that the respondent is
suffering from psychiatric disease and therefore,
naturally, considering the office note, it can be
presumed that the respondent may not be having any
interest in such proceedings. However, this being the
old matter of the year 1985, this matter is taken up for
final hearing in absence of the respondent who has been
served by affixing the service.
#. The labour court has set aside the order of dismissal
dated 18th December, 1981 and directed reinstatement with
50 % backwages from 1st September, 1983 and full wages
from 1st June, 1984. The Labour Court has further
observed that during the course of pendency of Reference,
if the company is already closed down, then whatever will
be the fate of the other employees, similar treatment
will be given to the present respondent. A chargesheet
dated 19th July, 1981 has been produced on record as
Annexure-B at Pg. 31, wherein following relevant
allegations were made against the respondent;
“Oflate, you are behaving in an abnormal and
funny way. You do not concentrate in your office
work assigned to you and while away your working
time in making out different stories in the name
of God [`Devi’] and evil spirit. You pick up
quarrel with your colleagues and superiors on one
or the other ground.”
#. On the basis of the aforesaid allegations,
departmental inquiry was held and after conclusion of the
departmental inquiry, the respondent workman was
dismissed from service. However, the labour court has
observed in detailed and come to the conclusion that at
the relevant time the respondent workman was suffering
from mental disease having psychiatric problem and his
behaviour is abnormal. This is a clear finding of the
labour court but despite this, simultaneously the Labour
Court has considered one certificate given by Dr.Sheth
dated 30th May, 1983, wherein the present respondent has
been declared to be fit and therefore, reinstatement has
been granted. It is also pertinent to note that before
the labour court, department inquiry was not challenged.
But on the contrary, the finding was accepted by the
labour court but only considering the powers under
Section 11-A of the Industrial Disputes Act, 1947, the
Labour Court has set aside the dismissal order and
granted reinstatement to the respondent workman.
#. Learned advocate Mr.Vimal Patel has also pointed out
certain other factual aspects in the present petition at
pg.14 in para-7.3 that the reinstatement of the
respondent is not possible inasmuch as there is closure
of the petitioner company with effect from 20th July,
1984. In this connection, it is also submitted that the
petitioner company runs two plants, of which, one is
situate at Kalve in the State of Maharashtra and the
other is situated at Vishvamitri Road, Baroda and the
petitioner company effected closure of Baroda plant which
was taken over the Padma Tex Engineering Ltd. except the
Assembly Department. It is also pointed out that it is
true that the petitioner company had filed a petition in
the High Court being Special Civil Application No.3852/84
in the mater of closure of the petitioner company.
However, thereafter the petitioner company as well as the
Padma ex Engineering Ltd., entered into a settlement
under Section 2[p] with the Union concerned viz. Gujarat
Engineering and General Kamdar Union, Baroda on 28-8-1984
and in pursuance of the said settlement, the petitioner
company submitted the consent terms dated 4-9-1984 under
which the petitioner withdrawn said petition on
appropriate order of the High Court. Therefore, it is
pointed out that in view of these circumstances, in any
case, the respondent cannot be reinstated in the
employment of the petitioner company and in any case, the
respondent is not entitled to reinstatement with 50 %
back wages because of the special circumstances relating
to his conduct and abnormal behavior.
#. I have perused the award passed by the labour court,
Baroda. It is found that the labour court has come to
the conclusion that during pendency of the departmental
inquiry, the respondent workman was suffering from mental
disease, therefore, the petitioner company should have to
wait till the respondent workman is cured from said
disease. Therefore, the labour court has come to the
conclusion that considering this fact that whatever
misbehavior and abnormal conduct on account of mental
disease, which could have been pardoned by the petitioner
company and same could not have been considered to be
serious one and therefore, while exercising the powers
under Section 11-A of the Industrial Disputes Act,
modified the punishment and granted certain relief.
#. The Labour Court has taken view for granting
backwages. However, so far the backwages are concerned,
the respondent workman has been awarded the backwages for
the period, during which, the respondent workman was
suffering from mental disease and naturally for said
period, the respondent workman was not in position to
work. Therefore, in view of this Court, for said period,
the respondent workman was not entitled to any backwages.
But taking into consideration the certificate dated 17th
August, 1983 given by Dr.Sheth and the opinion of
Dr.Khurana dated 8th May, 1984, the labour court has
granted 50 % backwages with effect from 1st Sept., 1983
and also awarded full wages with effect from 1st June,
1984. Therefore, considering all these aspects of the
matter, according to my opinion, once the labour court
has come to the conclusion that the charge levelled
against the respondent workman is found to be proved and
when the finding is not held to be vitiated and
considering one more aspect of the matter that the
respondent workman was undisputedly suffering from mental
disease and under its effect, resulted into misbehavior
and abnormal conduct of the respondent workman in the
Department, naturally the company cannot bear such
workman to be continued in service. But the labour court
only considering the certificates of Dr.Sheth and opinion
of Dr.Khuran has granted backwages taking into the aspect
that once the order of dismissal is considered to be
disproportionate in light of subsequent development.
Therefore, in such circumstances, the labour court should
not have to grant backwages. Therefore, in view of these
facts, according to my opinion, such person cannot be
reinstated in service because of the subsequent
certificate declaring fitness as certified by Dr.Sheth
and Dr.Khuran but fact remains that at the relevant time
when the dismissal order was passed, the respondent
workman was suffering from mental disease. Moreover, one
more fact which cannot be ignored at this juncture is
that the labour court has only considered the two
certificates, one by Dr.Sheth and other by Dr.Khurana
that now the respondent workman is fit but this fact
cannot be considered as guarantee against probability
that fresh attack of mental disease may not come again at
any time on respondent workman. Therefore, in such
circumstances the reinstatement ordered by the labour
court, in view of this Court, seems to be unwarranted in
the facts and circumstances of the case.
#. Therefore, in view of discussion, according to my
opinion, the labour court has wrongly exercised the
powers under Section 11-A of the Industrial Disputes Act
and therefore grant of reinstatement and backwages is
clear error apparently on the face of record. It is
further observed that subsequent events are also
necessary to be considered that the petitioner company
has already been closed down with effect from 20th July,
1984. Therefore, naturally reinstatement is also not
possible and looking to the subsequent settlement with
the Union by the petitioner company as well Padma Tex
Engineering Ltd on 28th August, 1984, award passed by the
labour court, cannot be sustained. In view of these
facts, the labour court has committed gross error in
setting aside the dismissal granting reinstatement with
some backwages in favour of the respondent workman and
therefore, same requires to be quashed and set aside.
##. In the result, present petition succeeds. The award
impugned in this petition passed by the labour court,
Baroda in Reference No.156 / 1982 dated 10th December,
1984 is hereby quashed and set aside. Rule is made
absolute with no order as to costs.
Date : 9-1-2002[H.K.Rathod, J.]
#kailash#