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SCA/8691/1995 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8691 of 1995
With
SPECIAL
CIVIL APPLICATION No. 8709 of 1995
=========================================================
UDYOG
BHARTI - Petitioner(s)
Versus
RAMESHCHANDRA
K VYAS - Respondent(s)
=========================================================
Appearance :
MR
TUSHAR MEHTA for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 08/07/2010
ORAL
ORDER
1.
The issue involved in these petitions is covered by a decision of
this Court in a cognate matter being S.C.A. No.7220/1995, which came
to be disposed of vide judgment and order dated 01.04.1999. The said
judgment reads as under;
These three petitions are interconnected and are
raising identical issue between the parties, who are
employer and its workmen, who were dismissed for
participating in the illegal strike on 14-3-1985.
2. The petitioners of Special Civil Application No.
7220/95 is by the employer and Special Civil Application
No. 8302/95 is cross petition by the workmen as parties
to the impugned award dated 23-6-1995 in Ref. L.C.R.
No. 1120/86 to 1124/86, 1128 to 1149/86 and 1151/86.
These petitions relate to the dismissal of 28 workmen who
had not participated in the inquiry pursuant to the
notice for holding the inquiry on the alleged misconduct
of participating in the illegal strike.
3. Special Civil Application No. 8113 of 1995 is
filed by the employer against the award dated 9-8-95 in
Reference L.C.R. Nos. 1125/86, 1126/86 and 1127/86
concerning three workmen who participated in the inquiry
against the misconduct of participation in illegal strike
which resulted in their dismissal on 14-6-1985. The
Labour Court in both the respective awards found the
inquiry to be just and proper and misconduct of
participating in the illegal strike proved. However, the
labour court found the punishment of dismissal to be
harsh and has ordered reinstatement of workmen excluding
Nirmlaben Shingala with 10% back wages. While the
employer in Special Civil Applications No. 7220/95 and
8113/95 has challenged the order of reinstatement of
workmen with 10% back wages. Whereas the employees in
Special Civil Application No.8392/96 has challenged the
denial of back wages to the extent of 90%
4. Learned counsel for the petitioner has urged that
the disciplinary inquiry has been found to be just and
fair and misconduct is found to be proved on the material
which has come on record at Annexure-A during the
inquiry. It is a managerial function to impose
punishment and it is not for the Industrial Court or
Tribunal to interfere with it ordinarily. The learned
counsel for the petitioner has also urged that the
participation in the illegal strike itself is sufficient
to impose punishment, but the fact that the delinquent
workmen indulged in continuous strike for long period
even after the strike was prohibited by the order of the
Government dated 1-6-1985 made u/s 10 (3) of the
Industrial Disputes Act which makes it a grave misconduct
which justifies dismissal. Once dismissal is justified
no interference is called for.
5. It has been urged on behalf of the workmen that
merely participation in the illegal strike without
anything more ordinarily did not justify the punishment
of dismissal. In the circumstances, no attempt has been
made by the employer to take the employees on duty who
participated in the strike prior to resorting to the
disciplinary action of punishment of dismissal. The
learned counsel for the workmen urged that the denial of
back wages to the extent of 90% is too harsh.
6. I have carefully considered the rival
contentions. There cannot be any dispute about the
principle. However, it cannot be said that the Labour
Court has no jurisdiction to interfere with the
punishment. U/s 11-A of the Industrial Disputes Act,
where an industrial dispute relating to discharge or
dismissal of a workman has been referred to a Labour
Court, Tribunal or National Tribunal for adjudication
and, in the course of the adjudication proceedings, the
Labor Court, Tribunal or National Tribunal, as the case
may be, is satisfied that that the order of discharge or
dismissal was not justified, it may, by its award, set
aside the order of discharge or dismissal and direct
instatement of the workman on such terms and conditions,
if any, as it thinks fit, or give such other relief to
the workman including the award of any lesser punishment
in lieu of discharge or dismissal as the circumstances of
the case may require. Ordinarily the managerial
authority in the matter of awarding punishment cannot be
interfered with where the domestic inquiry is found just
and fair and misconduct alleged is proved, unless the
same is found to be disproportionate to guilt proved.
Where the domestic inquiry is found defective or
absolutely one sided, the employer can yet justify the
order of dismissal, discharge or termination by adducing
the material before the Labour Court. What is required
is to be seen is whether exercise of discretion vested in
the Tribunal is a judicious or arbitrary one.
7. Ordinarily, exercise of discretion if it is
judicious and on well settled principles of law is not
liable to be interfered with by judicial review in
exercise of extra ordinary jurisdiction. In the present
case, all the charges levelled against the workmen
regarding participation in the illegal strike are proved.
From the material on record and the averments made in the
petition and absence of the efforts on the part of the
employer to persuade the women not to continue with the
strike after the same was prohibited on 1-6-1985 is found
to be missing which has major and relevant factor while
considering whether the punishment of dismissal in the
case of participation in the illegal strike can be said
to be justified. In this connection, reference may be
made to the case of Gujarat Steel Tubes Ltd. Vs.
Gujarat Steel Tubes Mazdoor, Sabha and Others, reported
in AIR 1980 SC 1896. The facts of which had close
similarity with the case at hand. Large number of
workmen were dismissed by the Company for participating
in the illegal strike. On the matter being referred for
adjudication to the Arbitrator u/s 10 A, the order of
punishment was upheld and was not interfered with. That
award of the Tribunal was challenged before the High
Court. The High Court by resorting to the provisions u/s
11-A found misconduct of participation in the illegal
strike to be proved but set aside the order of dismissal
finding it to be too harsh and granted reinstatement.
The judgment of the High Court was upheld by the Supreme
Court in appeal. It was made clear by quoting from
earlier decision of the Court in Crompton Greaves Ltd.
Vs. Workmen, reported in AIR 1978 SC 1989 that it must
be clearly understood by those who take part in an
illegal strike that thereby they make themselves liable
to be dealt with by their employers.
8. In the matter of justification of dismissal by
way of punishment for participation in illegal strike the
Court reaffirmed the principle stated in India General
Navigation & Rly. Co. Ltd. reported in 1960 SC 219 and
reiterated in Oriental Textile Finishing Mills, Amritsar
Vs. Labour Court Jullundur AIR 1977 SC 277 that :
“Mere taking part in an illegal strike without
anything further would not necessarily justify
the dismissal of all the workers taking part in
the strike.”
9. The Court also laid down the ambit of
jurisdiction of Labour Court in case no inquiry is held
before dismissing a workman :
“The action taken under the general law or the
standing orders, was illegal in the absence of
individualized charge-sheet, proper hearing and
personalized punishment, if found guilty. None
of these steps having been taken, the discharge
orders were stillborn. But the Management could
as in this case it did, offer to make out the
delinquency of the employees and the arbitrator
had, in such cases, the full jurisdiction to
adjudge de novo both guilt and punishment.”
10. In this context, where misconduct of
participation in illegal strike is proved against the
concerned worken, but while considering that punishment
of dismissal is too harsh the question of awarding lesser
punishment arise for consideration. Ordinary, rule where
a termination is found to be invalid as void ab initio,
equivalent to non est, ‘reinstatement with full back
wages’ is not applicable in such circumstances. In such
circumstances, Industrial Court while directing
reinstatement has jurisdiction to impose conditions
attached thereto as well as to impose lesser punishment
in lieu of the punishment. In such cases, it is not the
intention of Legislature to allow the delinquent to go
unpunished. It is well recognized where the workmen are
not wholly blameless or the strike is unjustified or
illegal the Industrial Court may well slice off a part of
the back wages. Extent of such slicing in the very
nature of things is in the discretion of the Tribunal to
be extended keeping in view of the facts and
circumstances of each case, which constitute complex
variables.
11. Following observations may usefully be referred
to from Gujarat Steel Tubes Ltd. (supra) :
“The Industrial Court may well slice off a part
if the workmen are not wholly blameless or the
strike is illegal and unjustified. To what
extent wages for the long interregnum should be
paid is, therefore, a variable dependent
dependent on a complex of circumstances.”
12. Keeping in view the aforesaid principle viz. in
case an order of dismissal is bad under the general law
for want of a fair inquiry or nonadherence to principle
of natural justice, but delinquency of the workman is
established by the employer before the adjudicator, the
adjudicator becomes the final arbiter of whole
controversy viz. finding of guilt as well as punishment
and that mere participation in illegal strike without
something further, they may be liable to be punished but
dismissal is not ordinarily justified, and that where the
workmen are not found wholly blameless the ratio of
reinstatement with full back wages does not operate as a
matter of course, but rests in discretion of the Tribunal
exercising jurisdiction, I am of the opinion that the
Labour Court has not exercised its jurisdiction
injudicious or arbitrarily, in setting aside the order of
dismissal and awarding only 10% of back wages because it
found the workmen to be guilty of participating in
illegal strike so as to warrant interference with it in
these petitions.
13. While no interference is called for with the
awards made under challenge in three petitions, namely
reinstatement of the workmen with 10% back wages, it is
directed that 10% of back wages shall not be paid to the
workmen immediately but shall be subject to condition
stated hereinafter. It shall be deposited in separate
accounts in the name of each of the workmen in the
nationalized or scheduled bank in fixed deposit for a
period of one year at the first instant and to be renewed
upto three years. To any workman on being reinstated the
amount of back wages shall be payable to him only on
completion of three years service on reinstatement with
effect from rejoining. On completion of the said period
the amount shall be paid to them with accrued interest
there. Except in case of superannuation, death or
termination of service by the employer no amount shall be
payable to reinstated workman if they leave the service
before expiry of three years. In case of said
evantuality the amount of such deposit shall become
payable to the concerned workman along with accrued
interest thereon. Rule is made absolute to the aforesaid
extent in three petitions. The petitions accordingly
stands disposed of. In the circumstances, there is no
order as to costs.
14. Learned counsel for the workmen Mrs. Pahwa
states that a Civil Application in Special Civil
Application No.7220/95 has been filed claiming benefit
u/S 17B of the Act. It is submitted that the fact that
workmen were not employed after the award is disputed by
filing reply thereof. As a matter of entitlement to
claim benefit u/s 17B relates to the period during which
the award as to reinstatement proceedings were pending
before the Court. This Civil Application will have to be
decided independently. This Civil Application may be
placed for orders on 16-6-1999.
2. Hence, these petitions also stand disposed of in terms of the aforesaid judgment and order. Rule is made absolute in terms of the judgment and order passed in S.C.A. No.7220/1995 dated 01.04.1999. No order as to costs.
[K.
S. JHAVERI, J.]
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