{"id":135727,"date":"2011-04-20T00:00:00","date_gmt":"2011-04-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/netrang-vs-chandrakant-on-20-april-2011"},"modified":"2015-11-13T06:15:00","modified_gmt":"2015-11-13T00:45:00","slug":"netrang-vs-chandrakant-on-20-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/netrang-vs-chandrakant-on-20-april-2011","title":{"rendered":"Netrang vs Chandrakant on 20 April, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Netrang vs Chandrakant on 20 April, 2011<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/15760\/2010\t 69\/ 69\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 15760 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.K.RATHOD    Sd\/-\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?    \n\t\t\t                  YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?     YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?       \n\t\t\t                    YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?                                 NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?                       \n\t\t\t                    NO\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nNETRANG\nVIBHAG MILK PRODUCERS COOPERATIVE SOCIETY LTD - Petitioner(s)\n \n\nVersus\n \n\nCHANDRAKANT\nVITHALBHAI MISTRY - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nBS PATEL for\nPetitioner(s) : 1, \nMR PH PATHAK for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 20\/04\/2011 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\tHeard
\nlearned advocates appearing on behalf of respective parties.\n<\/p>\n
2.\tIn
\npresent petition, petitioner society has challenged award passed by
\nLabour Court, Bharuch in Reference (LCB) No.100 of 2000 dated 13th
\nAugust, 2010, wherein, Reference made by respondent has partly
\nallowed with a direction to petitioner to reinstate respondent with
\ncontinuity of service to his original post with 20% back wages of
\ninterim period.\n<\/p>\n
3.\tIn
\nthis matter, on 22nd December, 2010, this Court has issued
\n‘notice for final disposal’ to respondent and made it returnable on
\n12th January, 2011. The respondent has not filed any
\naffidavit in reply against present petition.\n<\/p>\n
4.\tToday,
\nlearned advocate Mr. B.S. Patel appearing on behalf of petitioner –
\nsociety has raised contentions before this Court that service of
\nrespondent was terminated by society on the ground of loss of
\nconfidence and he was working as a Secretary in society and complaint
\nis filed by Bank of Baroda for misappropriation which included
\naccount of petitioner society. The respondent workman was arrested
\nwhen he was working with society on the basis of FIR filed by Bank of
\nBaroda. He also submitted that service of respondent was terminated
\nwhile passing resolution dated 24th March, 2000 being
\nResolution No.11\/1, Page 65. He also submitted that at the time of
\nterminating service of respondent, one month’s notice pay was paid to
\nrespondent. He submitted that according to provisions of Section
\n2(13) of Cooperative Societies Act, post of Secretary is covered by
\ndesignation as an ‘officer’, therefore, respondent was not a workman
\nwithin a meaning of Section 2(s) of Industrial Disputes Act, 1947
\n(for short ‘ID Act’). He also submitted that against termination,
\nRegular Civil Suit No.7 of 2000 was filed by respondent before Civil
\nCourt, Valia impleading petitioner society as a party as well as
\nother members of Executive Committee. Copy of civil suit is produced
\non record at page 43 to page 48. He submitted that civil suit has
\nbeen unconditionally withdrawn by respondent which is at page 48
\ndated 3rd November, 2003. Because of suit has been
\nunconditionally withdrawn, subsequent proceedings for same relief
\nfiled before Labour Court, against which, principles of estopple is
\napplicable against respondent and therefore, reference is barred by
\nprinciples of estopple. He referred observations made by Labour Court
\nat page 31 in respect of nature of work performed by respondent. He
\nalso read over before this Court Item No.Q from Award, page 31 and
\nsubmitted that in case when service has been terminated by employer
\non the ground of loss of confidence, then, it cannot consider to be a
\nretrenchment and Section 25F of ID Act has not made applicable.
\nTherefore, compliance of Section 25F by employer does not arise. He
\nalso raised contention that issue of loss of confidence has been
\nproved by employer before Labour Court, even though, contrary finding
\nhas been given by Labour Court from record.\n<\/p>\n
5.\tLearned
\nadvocate Mr. Patel submitted that according to decision of Apex Court
\nreported in 2005 LLR 417 in case of K.C. Sharma v. Delhi Stock
\nExchange,<\/a> wherein, it has been held that in case of loss of
\nconfidence, instead of granting relief of reinstatement, compensation
\nis to be worked out and paid to concerned respondent. He submitted
\nthat this decision is not considered by Labour Court from record.\n<\/p>\n
6.\tLearned
\nadvocate Mr. Patel relied upon one decision of Apex Court in case of
\nAir India Corporation, Bombay v.\n<\/p>\n
Rebellow and Another reported in AIR 1972 SC 1343.
\nHe also relied upon another decision of Apex Court in case of Chandu
\nLal v. Management of M\/s. Pan American World Airways Inc.<\/a>
\nreported in AIR 1985 SC 1128. He further relief upon decision
\nin case of Kamal Kishore Lakshman v. Management of M\/s. Pan
\nAmerican World Airways Inc. and Antoher<\/a>
\nreported in (1987) 1 SCC 146.\n<\/p>\n
7.\tLearned
\nadvocate also relied upon decision in case of West Coast Paper
\nMills Employees Union, Bombay v. A.B.M. Shaikh and Others<\/a>
\nreported in 2000-III-LLJ (Suppl) 374 of
\nBombay High Court. He referred Page 36\/37, wherein, a complaint filed
\nby Branch Manager of Chasvad Branch, Bank of Baroda, wherein, in
\nrespect of current account of petitioner society, misappropriation
\nwas found. He submitted that on the basis of aforesaid FIR\/Complaint,
\nPage 36\/37, Labour Court must have to presume ground of loss of
\nconfidence against respondent and that does not require to prove by
\nemployer before Labour Court. He submitted that admission made by
\nrespondent before Labour Court that civil suit was filed which was
\nunconditionally withdrawn by him and in police case, he was arrested
\nwhile working with petitioner society in the post of Secretary. In
\nshort, his submission is that termination order which has been passed
\nby petitioner society on the ground of loss of confidence against
\nrespondent is legal and valid and in such cases, question of giving
\nopportunity or holding departmental inquiry does not arise. He
\nsubmitted that nature of duties performed by respondent is suggested
\nmanagerial function and administrative capacity to control the work
\nof society and therefore, respondent is not a ‘workman’ within
\nmeaning of Section 2(s) of ID Act. Therefore, he emphasised that
\nLabour Court has committed gross error in deciding entire reference
\nand also wrongly appreciated evidence on record and finding which has
\nbeen given by Labour Court is perverse and baseless which requires
\ninterference by this Court while exercising powers under Article 227
\nof Constitution of India.\n<\/p>\n
8.\tLearned
\nadvocate Mr. P.H. Pathak appearing on behalf of respondent raised
\ncontentions before this Court that normally, this Court cannot
\ndisturb finding of fact recorded by Labour Court while exercising
\npowers under Article 227 of Constitution of India. He submitted that
\npage 36\/37 which has been relied upon by learned advocate Mr. B.S.
\nPatel being a FIR filed by Amrutbhai Amthabhai Patel, Branch Manager
\nof Chasvad Branch, Bank of Baroda, wherein, name of respondent is not
\ndisclosed and nowhere, allegations have been made against respondent
\nin FIR at page 34\/35 as an accused. Therefore, learned advocate Mr.
\nPathak submitted that merely filing of FIR by Branch Manager of
\nChasvad Branch, Bank of Baroda regarding misappropriation in current
\naccount of petitioner society by some person does not mean that
\nrespondent has committed an criminal offence of misappropriation. He
\nalso submitted that FIR which has been placed on record by
\npetitioner, page 34, where, name of accused is Champakbhai Vasava,
\nbut, in said FIR, name of respondent was not mentioned as an accused.
\nTherefore, on the basis of FIR, decision which has been taken by
\npetitioner society of dismissal is totally non-application of mind
\nand no evidence against present respondent was produced by petitioner
\nsociety before Labour Court which proves ground of loss of
\nconfidence. Learned advocate Mr. Pathak submitted that there must be
\nsome material to be placed on record by employer to prove the facts
\nthat respondent has committed particular kind of misconduct or
\ncriminal offence and on that basis, employer has lost the confidence
\nagainst respondent. He submitted that except this FIR and complaint
\nas referred above page 34 to 39, no material is placed on record
\nwhich involved present respondent in criminal offence. Respondent was
\narrested by police merely in pursuance of FIR, that does not mean
\nthat respondent is involved in criminal offence. He submitted that in
\ncriminal offence also, respondent is not convicted by competent
\ncriminal Court. There is no slightest evidence produced on record
\nwhich suggests involvement of respondent in criminal offence. When
\nname of respondent is not disclosed as an accused in FIR and even in
\ndetailed complaint, name of respondent is not disclosed as an accused
\nor he was involved in criminal offence, then, merely relying upon FIR
\nand complaint filed by Branch Manager, Chasvad Branch of Bank of
\nBaroda, resolution has been passed by petitioner society terminating
\nservices of respondent without giving any opportunity to him and
\nwithout conducting any inquiry against present respondent. Therefore,
\norder of termination based on resolution dated 24th March,
\n2000 is contrary to principles of natural justice and for that, to
\nhold departmental inquiry is being a condition precedent and in
\nabsence of such inquiry, termination is considered to be violation of
\nbasic principles of natural justice.\n<\/p>\n
9.\tLearned
\nadvocate Mr. Pathak also submitted that one letter from Mr. Parmar,
\nPolice Sub Inspector, LCB, Bharuch addressed to Branch Manager in
\nrespect of FIR No.143 of 1999 for offences under Section 406 and 409
\nof Indian Penal Code, respondent was arrested, but, nowhere, his
\ninvolvement is found from record and said facts have not been
\nconsidered at all by society before passing order of termination
\nagainst respondent. Therefore, loss of confidence is considered to be
\nstigma and in such circumstances, principles of natural justice must
\nhave to be followed by them, but, that has not been followed and no
\ndepartmental inquiry was conducted by petitioner against respondent.
\nNot only that but loss of confidence is not proved by petitioner
\nsociety before Labour Court by leading proper evidence from
\ncomplainant Mr.Amrutbhai A. Patel, Branch Manager, Chasvad Branch,
\nBank of Baroda. He submitted that before Labour Court, Branch Manager
\nand one Shri Amrutbhai has not been examined to prove allegations
\nmade against respondent and no involvement in criminal offence has
\nbeen proved by petitioner society before Labour Court in respect of
\ncriminal offence, for which, respondent was arrested by PSI.
\nTherefore, he submitted that Labour Court has rightly examined matter
\nand rightly considered it that looking to nature of duties performed
\nby respondent and admitted by witness of petitioner society, he has
\nbeen held to be a ‘workman’ within a meaning of Section 2(s) of ID
\nAct. He relied upon decision of this Court in case of Rameshbhai
\nD. Patel v. United Catalyst India Ltd.<\/a>\n<\/p>\n
reported in 2006 (3) GCD 2514 (Guj).\n<\/p>\n
10.\t\tLearned
\nadvocate Mr. Pathak submitted that termination of respondent either
\nmay be simple termination or that termination was based on stigma.
\nThe allegations of loss of confidence made against respondent is
\nconsidered to be a stigma, then, inquiry is a condition precedent
\nwhich was not held, therefore, on that ground, order of termination
\nhas been rightly set aside by Labour Court. If it is considered to be
\na simple termination, then, it amounts to a retrenchment under
\nSection 2(oo) of ID Act and then, Section 25F of ID Act must have to
\nbe followed which is admittedly not followed. Therefore also, a
\nsimple termination amounts to a retrenchment, then, termination order
\nis ab initio void. So, on
\nboth grounds, Labour Court has rightly examined matter and both
\ngrounds have been perfectly appreciated on the basis of record and
\nsuch finding has been given which cannot consider to be a baseless
\nand perverse. Therefore, interference is not required by this Court
\nunder Article 227 of Constitution of India.\n<\/p>\n
11.\t\tI
\nhave considered submissions made by both learned advocates appearing
\non behalf of respective parties. I have perused award passed by
\nLabour Court, Bharuch and also perused relevant record which has been
\nproduced by petitioner society before this Court. Petitioner society
\nhas raised preliminary objections that respondent was not a ‘workman’
\nwithin a meaning of Section 2(s) of ID Act by giving separate
\napplication to decide preliminary issue on 22nd
\nJuly, 2005, which application has been decided by Labour Court on 8th
\nAugust, 2008 that this preliminary issue will be considered along
\nwith adjudication of reference on merits. That order has not been
\nchallenged by petitioner society before higher forum. I have also
\nconsidered evidence of respondent Ex.26 and cross-examination and
\nalso considered evidence of witness\n<\/p>\n
– Dolatsinh Vashi Ex.46 of petitioner society and
\ncross-examination made by advocate of respondent. I have also
\nconsidered statement of claim filed by respondent and also written
\nstatement filed by petitioner society. I have considered fact that
\none civil suit has been filed by respondent which was subsequently
\nwithdrew unconditionally vide Ex.75, therefore, it means that civil
\nCourt has not decided civil suit on merits, therefore, principles of
\nestopple is not made applicable in facts of present case. Merely,
\nrespondent has filed civil suit for obtaining interim relief\/stay
\nagainst termination, that does not mean that such suit cannot be
\nwithdrawn unconditionally by respondent and then to challenge
\ntermination order under provisions of ID Act. The petitioner society
\nhas not challenged order of reference which has been made by
\nAssistant Commissioner of Labour to Labour Court, Bharuch on 9th
\nMay, 2000, therefore, now, petitioner society is not permitted to
\ncontend that order of reference is bad. No such contention was raised
\nby petitioner society before Labour Court that because of civil suit
\nhas been withdrawn unconditionally, reference proceedings is bad and
\nit is barred by principles of estopple. This contention is not raised
\nby petitioner society in written statement, even, that point was not
\nargued by learned advocate of petitioner society before Labour Court.
\nThis contention is raised first time by before this Court by
\npetitioner society, therefore, naturally, Labour Court has no
\noccasion to decide such contention which was not raised before Labour
\nCourt, Bharuch by petitioner
\nsociety. The contention is whether respondent is ‘workman’ or not ?
\nFor that, Labour Court has rightly appreciated oral evidence of
\nrespondent and admission made by witness of petitioner society that
\nnature of duties which has been performed by respondent is mainly of
\naccount work, clerical work and he was not working as a supervisory
\nor managerial capacity and supervisory or managerial function is not
\ncarried out by him. According to cross-examination of witness of
\npetitioner society, nature of work which was performed by respondent
\nto maintain account, banking affairs, to call meeting on the basis of
\norder passed by Manager and to write minutes of meeting and also to
\nhave reconciliation with bank and other allied work which is required
\nto be performed by respondent. These all work have been suggested
\nthat respondent is not having any power to appoint any person, even
\nhe has no power to terminate services of any employee and no power to
\npunish any employee and even no power to sanction leave of any
\nemployee. For that, no documentary evidence was produced on record
\nand proved it by petitioner society before Labour Court.\n<\/p>\n
12.\t\tInitially,
\nrespondent was appointed in post of Clerk in year of 1981.
\nThereafter, he was promoted as an Accountant and thereafter, he was
\nfurther promoted in post of Secretary. The Secretary has to work
\nunder supervision and control of Manager and whatever directions may
\nbe issued by Manager to Secretary, that has to be carried out by
\nrespondent and no independent
\nwork is to be performed by respondent and he was not having any power
\nto take independent decision which binds petitioner society. For
\nthat, Labour Court has rightly relied upon decision of Apex Court in
\ncase of Anand Regional Coop. Oil Seeds Growers Union
\nLimited v. Shaileshkumar Harshadbhai Shah<\/a> reported
\nin 2006 LLR 1052,
\nwherein, Apex Court has held in para 15 that “Supervision
\ncontemplates direction and control. While determining the nature of
\nthe work performed by an employee, the essence of the matter should
\ncall for consideration. An undue importance need not be given for the
\ndesignation of an employee, or the name assigned to, the class to
\nwhich he belongs.”\n<\/p>\n
Further, in para  17, Apex Court has held that “A
\nperson indisputably carries on supervisory work if he has power to
\ncontrol or supervision in regard to recruitment, promotion, etc. The
\nwork involves exercise of tact and independence.”
\nThis suggests the managerial and administrative function to be
\ncarried out by employee. Therefore, evidence of respondent – Ex.26
\nand evidence of Dolatsinh Vashi, witness of petitioner society –
\nEx.46 has been rightly appreciated by Labour Court and on the basis
\nof aforesaid evidence, Labour Court, after considering definition of
\n‘workman’ under Section 2(s) of ID Act, come to such conclusion while
\nconsidering decision of Apex Court in case of Ved
\nPrakash Gupta v. M\/s. Delton Cable India (P) Ltd.<\/a>
\nreported in 1984 (1) LLJ
\n546 and another decision
\nof Apex Court in case of Arkal
\nGovind Raj Rao v. Ciba Geigy of India Limited, Bombay<\/a>
\nreported in 1986
\n(52) FLR 487, wherein, it
\nis held in paragraph 16 that ‘The test that one must employ
\nin such a case is what was the primary basic or dominant nature of
\nduties for which the person whose status is under inquiry was
\nemployed. A few extra duties would hardly be relevant to determine
\nhis status. The words like managerial or supervisory have to be
\nunderstood in their proper connotation and their mere use should not
\ndetract from the truth.”  Thereafter,
\nLabour Court has also considered decision of Allahabad High Court
\nwhich has been relied upon by petitioner society in case of Nirbhay
\nMehrotra v. State of U.P. And Others reported
\nin 2006 LLR 1236
\nand distinguished aforesaid decision on the facts and then, come to
\nconclusion that nature of duties which has been performed has rightly
\nappreciated from evidence of respondent and evidence of witness of
\npetitioner society and considering documents which are on record that
\nrespondent is covered by definition of Section 2(s) of ID Act.
\nAccordingly, contentions raised by learned advocate Mr. B.S. Patel
\ncannot be accepted.\n<\/p>\n
13.\t\tThe
\nsecond contention which has been raised by learned advocate Mr. B.S.
\nPatel is that service of respondent has been rightly terminated by
\npetitioner on the ground of loss of confidence and for that, no
\ndepartmental inquiry is necessary and no opportunity is to be given
\nto respondent before passing such order of termination. It is
\nnecessary to note the reply Ex.18 filed by petitioner society before
\nLabour Court. In written
\nstatement Ex.18, a specific case was put up by petitioner society
\nagainst respondent that respondent was arrested by PSI as per letter
\ndated 10th
\nFebruary, 2000 in police case during course of employment and also
\nother misconduct which has been brought to notice of society and on
\nthat ground, petitioner society has loss confidence upon respondent,
\ntherefore, respondent’s service has been terminate by passing
\nresolution No.11\/1, page 65, dated 24th
\nMarch, 2000. In light of written statement, not merely involvement in
\ncriminal case or arrest by PSI Mr. Parmar has been taken into
\naccount, but, some other misconduct has also been taken into account
\nfor terminating services of respondent by petitioner society, that
\nfact has been disclosed by petitioner society in written statement
\nEx.18. Therefore, even for said misconduct, if service has been
\nterminated, then also, departmental inquiry being a condition
\nprecedent which has not been held being an undisputed facts between
\nparties.\n<\/p>\n
14.\t\tLearned
\nadvocate Mr. B.S. Patel for petitioner society has relied upon
\ndecision of Apex Court in case of Kamal Kishore Lakshman
\nv. Management of M\/s. Pan American World Airways Inc. and Antoher<\/a>
\nreported in (1987) 1 SCC 146,
\nwhere, it is held that disciplinary inquiry should normally be held
\nbefore passing order of termination of service grounded on stigmatic
\nallegations, but, even if inquiry does not precede the stigmatic
\norder, termination would not become bad if employer justifies its
\nstand in adjudication before
\nLabour Court or Tribunal.\n<\/p>\n
15.\t\tThe
\naforesaid decision is not supported submissions made by learned
\nadvocate Mr. Patel. From evidence on record before Labour Court,
\nbecause of involvement in criminal offence and thereafter, respondent
\nwas arrested by PSI Mr. Parmar during course of employment, that was
\nonly a letter dated 10th
\nFebruary, 2000 on record. Except that, there was no material at all
\nbefore petitioner society when order of termination was passed vide
\nResolution No.11\/1 dated 24th
\nMarch, 2000, Page 65. The allegations made against respondent have
\nnot been justified by petitioner society while leading proper
\nevidence and to establish involvement of respondent in criminal
\noffence while examining complainant – Branch Manager of Bank of
\nBaroda, Chasvad Branch or any other persons including PSI who has
\narrested the respondent. Therefore, merely examining one witness Mr.
\nVashi – Ex.46, who has not disclosed and established or
\njustified the ground of loss of confidence alleged against
\nrespondent. Therefore, if employer did not justify its stand in
\nadjudication before Labour Court or Tribunal, then, disciplinary
\ninquiry should be held before passing order of termination of service
\ngrounded on stigmatic allegation. This is a ratio of aforesaid
\ndecision of Apex Court which is not helpful to submissions made by
\nlearned advocate Mr. Patel. The relevant discussion is made in
\naforesaid case of Apex Court in case of Kamal Kishore
\nLakshman  (supra) in para
\n 7 to 11,
\nwhich are quoted as under :\n<\/p>\n
“7.\n<\/p>\n
Having heard learned Counsel, we are inclined to reiterate the view
\ntaken in Chandu Lal’s case (AIR 1985 SC 1128) that the plea of loss
\nof confidence in the employee indeed casts a stigma. As was pointed
\nout in Roble v. Green, (1985) 2 QB 315 the employee is expected to
\npromote the employer’s interests in connection with which he has been
\nemployed and a necessary implication which must be engrafted on such
\na contract is that the servant undertook to serve his master with
\ngood faith and fidelity. This view has been accepted by several High
\nCourts in India and meets with our approval. In the absence of a
\nstatutory definition of the word ‘stigma’, we shall refer to its
\nmeaning as available in dictionaries.\n<\/p>\n
8.
\nAccording to Webster’s New World Dictionary it is something that
\ndetracts from the character or reputation of a person, a mark, sign,
\netc., indicating that something is not considered normal or standard.
\nThe Legal Thesaurus by Burton gives the meaning of the word to be
\nblemish, defect, disgrace, disrepute, imputation, mark of disgrace or
\nshame. The Webster’s IIIrd New International Dictionary gives the
\nmeaning as a mark or label indicating a deviation from a norm.
\nAccording to yet another Dictionary ‘stigma’ is a matter for moral
\nreproach.\n<\/p>\n
9.
\nLoss of confidence by the employer in the employee is a feature which
\ncertainly affects the character or reputation of the employee and,
\ntherefore, this Court correctly held in Chandu Lal’s case that
\nallegation of loss of confidence amounted to a stigma. The ratio in
\nJagdish Mitter’s case AIR 1964 SC 449 also supports this conclusion.\n<\/p>\n
10.
\nRetrenchment as defined in S. 2(oo) of the Industrial Disputes Act
\nand as held by this Court in several cases means termination of
\nservice for any reason whatsoever otherwise than punishment inflicted
\nby way of disciplinary action and the other exceptions indicated
\ntherein. In the present case though no formal domestic inquiry had
\nbeen held, the employer took the stand in the adjudication that
\ntermination was grounded upon loss of confidence and substantiated
\nthat allegation by leading evidence. The legal position firmly
\nestablished is that if there has been no appropriate domestic enquiry
\nor no enquiry at all before disciplinary action is taken, it is open
\nto the employer to ask for such opportunity in the course of
\nadjudication. In the facts of the present case, the order of
\nseparation grounded upon loss of confidence has been justified before
\nthe Labour Court and the Labour Court has come to that conclusion
\nupon assessment of the evidence.\n<\/p>\n
11.
\nSeveral decisions were relied upon by appellant’s learned Counsel in
\nsupport of his contention that the conclusion in Chandu Lars case
\n(AIR 1985 SC 1128) that loss of confidence amounted to stigma was
\nwrong. We have not been shown a single case other than Chandu Lal’s
\nwhere this aspect has been directly considered. Whether termination
\nis grounded upon stigma would not vary from case to case depending
\nupon whether it involves a government servant or a workman. But the
\nprocedural safeguards appear to be different when termination is
\nsought to be founded upon stigma. If disciplinary inquiry has not
\npreceded the prejudicial order in the case of a Government servant
\nthe action would be bad while in the case of a workman the order
\ncould be justified even in the course of adjudication before the
\nappropriate Tribunal under the Industrial Disputes Act even though no
\ninquiry had been undertaken earlier.”\n<\/p>\n
16.\t\tLearned
\nadvocate Mr. B.S. Patel also relied upon decision of Apex Court in
\ncase of Air India Corporation, Bombay v. Rebellow and
\nAnother<\/a> reported in AIR
\n1972 SC 1343.\n<\/p>\n
17.\t\tIn
\naforesaid decision, power has been exercised for terminating service
\nof employee under Regulation 48, Air India Employees Service
\nRegulation, but, in this
\ncase, whether such power is available to society under service rules
\nor not ? That aspect has not been disclosed by learned advocate Mr.
\nPatel before this Court. The relevant discussion is made by Apex
\nCourt in case of Air India Corporation, Bombay
\n(supra) in para  11 to 13,
\nwhich are quoted as under :\n<\/p>\n
“11.\t\tThe
\n true legal position has been stated by this Court\tmore than  once
\nand is by now beyond controversy.  In one of the most  recent
\ndecisions\tin The Workmen of Sudder Office, Cinnamara v The
\nManagement(1)  this\t Court\tapprovingly referred to two of its
\nearlier\tdecisions actually reproducing a passage from one of them.
\nThis is what was said in Sudder Office case :\n<\/p>\n
“It
\nis needless to point out that it has\tbeen held  by\tthis Court in  The
\n Chartered  Bank, Bombay v. The Chartered Bank Employees’  Union<\/a> (2)
\nthat if the termination of service is  a colourable exercise of the
\npower vested in the management or as a result of victimisation  or
\nunfair   labour  practice, the   Industrial Tribunal would have
\njurisdiction to  intervene and set aside such a termination.\t In
\norder to find  out whether the order of termination  is one  of the
\ntermination simpliciter under
\nthe provisions of contract or of standing  orders, the Tribunal has
\nample jurisdiction to go into all   the\t circumstances\twhich led  to
\nthe termination  simpliciter-.   The form  of\t the order of
\ntermination, is not conclusive of the true  nature of the order, for
\nit is  possible that  the form may be merely a camouflage\t for an
\norder of dismissal for misconduct.  It is, therefore,  open to the
\nTribunal to go behind the form\t of  the  order and  look  at\t the
\nsubstance. If  the  Tribunal  comes to the conclusion  that\tthough\tin
\n form  the  order amounts  to  termination simpliciter but  in
\nreality cloaks a dismissal for misconduct,  it will be open to it to
\nset aside the order as a colourable   exercise   of   power   by\t the
\nmanagement.\n<\/p>\n
 \tPrinciples
\n to the same effect have also been reiterated  in the  later decision
\nof this Court in Tata Oil Mill Co.\tLtd. v. WorKmen &<\/a> anr. (3)
\nwhere the Court observed as follows :\n<\/p>\n
\t“The
\ntrue legal position about the Industrial Court’s justification and
\nauthority in dealing with cases of
\nthis kind is no longer in doubt. It is  true\tthat in several cases,
\ncontract  of employment  or provisions in  standing  orders authorise
\nan industrial employer to  terminate the  service  of his  employees
\nafter  giving notice for one month or paying salary for\t one month
\nin\t lieu of notice,  and  normally,  an employer  may, in a proper
\ncase, be entitled to  exercise  the said power.   But  where  an
\norder of discharge passed by an employer gives rise to an industrial
\ndispute, the form of the order  by\t which the employee’s  services
\nare terminated  would not be decisive;  industrial adjudication would
\nbe entitled to examine\t the substance of the matter and decide
\nwhether the termination  is in face discharge simpliciter or  it
\namounts to dismissal which has  put  on the  cloak of discharge
\nsimpliciter.   If\t the Industrial  Court is satisfied that the  order
\nof  discharge  is punitive, that\tit  is\tmalafide, or that it amounts
\nto victimisation  or unfair  labour  practice, it is  competent  to
\nthe.  Industrial Court to set
\naside the  order and,   in a proper case, direct the reinstatement of
\nthe employee.”\n<\/p>\n
12.\tShri
\nMenon on behalf of the complainant, however,  contended that
\nignoring the form and language of the  impugned  order and looking at
\nthe real substance of the matter it is  clear as  disclosed  by
\nthe\tappellant  in  the  further  written statement  that the
\ncomplainant’s services  were  terminated because\t of  a\tsuspicion
\nabout  his  private\tconduct\t and behaviour with Air Hostesses whose
\nnames were considered not proper\tto be disclosed. This, said the
\ncounsel, makes out an allegation of misconduct which induced the
\nappellant  to terminate   the\t  complainant’s\t services  and\t the
\ncase, therefore, clearly falls within the mischief of s. 33.\t The
\nimpugned  order, he added, is a colourable exercise  of\t the power
\nunder Regulation 48, the real object of the  appellant being
\nessentially to punish the complainant for misconduct.\n<\/p>\n
13.\tNo
\n doubt,  the\t position  of  the  industrial\tworkman\t  is different
\nfrom that  of a Government\tservant\t because  an industrial  employer
\ncannot “hire and fire” his\t Workmen  on the  basis  of\tan
\nunfettered right under  the\tcontract  of employment,  that
\n right  now being  subject  to  industrial
\nadjudication  :\t and  there is also on\tthe  other  hand  no provision
\n of  the Constitution like Arts.310 and 311 requiring consideration
\nin the case of industrial workmen. We are here only concerned with
\nthe question whether the impugned action of termination of the
\ncomplainant’s services is for misconduct as contemplated by s.
\n33(II)(b) or s. 33(2)(b).  While considering this question it is
\nopen  to the  complainant to urge that reliance on Regulation  48  is
\nnot  bona fide, it being a colourable exercise of the  right
\nconferred by that regulation.  He has in fact raised this
\nargument\tand it is this aspect which concerns  us  in this  case.
\nLet us now scrutinies the present\t record\tfor examining the position
\nfrom this aspect.”\n<\/p>\n
18.\t\tLearned
\nadvocate Mr. Patel also relied upon decision of Bombay High Court in
\ncase of West Coast Paper Mills Employees Union, Bombay
\nv. A.B.M. Shaikh and Others<\/a>
\nreported in 2000-III-LLJ (Suppl) 374.\n<\/p>\n
This decision is not having any assistance in support of submissions
\nmade by learned advocate Mr. Patel. He relied upon para
\n21 to 23 and 25 of said
\njudgment which are quoted as under :\n<\/p>\n
“21.\t\tPetitioner
\nrelied on the decision reported in the case of L. Mechael and another
\nv. Johnson Pump Ltd. AIR 1975 SC 661 : 1975-I-LLJ-262 in respect of
\nhis contention that even in respect of discharge, enquiry is a must
\nif stigma is attached. Noting the fact that loss of confidence is
\noften a subjective feeling or individual reaction to an objective set
\nof facts and motivations, the learned Judges admit that there could
\nbe circumstance to justify the genuine exercise of the power of
\nsimple termination. They also admit that the disciplinary enquiry
\ncannot be fair in the matter involving responsible post being misused
\nor a sensitive or strategic position being abused. In short as set
\nout in paragraph 22, the action must rest on tangible basis and the
\npower has to be exercised by the employer objectively in good faith
\nwhich means honestly with due are and prudence.\n<\/p>\n
22.\tThe
\ndecision definitely lays down that if the exercise of such power is
\nchallenged on the ground of being colourable or mala fide or an act
\nof victimisation or unfair labour practice, the employer must
\ndisclose to the Court the grounds of his impugned action so that the
\nsame may be decided judicially.\n<\/p>\n
23.\tPetitioners
\nalso relied on a decision reported in 1992 (1) CLR 474 in the case of
\nTheatre Employees Union &
\nOrs. v. S.V. Kotnis and others<\/a>. It is a decision of the learned
\nsingle Judge of this Court where only evidence relied on was
\nso-called admission of guilt. That too of as many as 12 employees
\nwithin the span of more than one and half month after the alleged
\nincident. The exercise of the employer’s privilege of terminating the
\nemployees on the ground of loss of confidence was struck down by the
\nCourt. It involved the termination of 12 employees of a theatre.
\nThough there were unsold tickets, auditorium was found full. Actions
\nwere taken against as many as 12 employees and the only material was
\nalleged admission. It took almost one and half month for the employer
\nto get this statement.\n<\/p>\n
25.\t\tPetitioners
\nheavily relied on the decision reported in 1985 (II) CLR 21 in the
\ncase of Chandu Lal v. The Management of Pan American World Airways
\nIc.,<\/a> in support of the proposition that even in case of loss of
\nconfidence enquiry is a must. Explaining what is loss of confidence
\nwhen it is found that the alleged action of the employee amounts to
\ndereliction on his part, the action is stigmatized and therefore the
\nenquiry is a must. In the instant case the employer had found the
\nworkman one Chandu Lal along with co-employee to be indulging in the
\nactivity of smuggling.\t”\n<\/p>\n
19.\t\tLearned
\nadvocate Mr. Patel further relied upon decision of Apex Court in case
\nof Chandu Lal v. Management of M\/s. Pan American World
\nAirways Inc.<\/a> reported in AIR
\n1985 SC 1128. He relied upon
\nrelevant discussion made in para  8,
\nwhich is quoted as under :\n<\/p>\n
“8.\tIt
\nis difficult to agree with the finding of the Labour Court that when
\nservice to terminated on the basis of loss of confidence the order
\ndoes not amount to one with stigma and does not warrant a proceeding
\ncontemplated by law preceding termination. Want of confidence in an
\nemployee does point out to an adverse facet in his character as the
\ntrue meaning of the allegation is that the employee has failed to
\nbehave up to the expected standard of conduct which has given rise to
\nit situation involving loss of confidence. In any view of the matter
\nthis amounts to a dereliction on the part of the workman and,
\ntherefore, the stand taken by the management that termination for
\nloss of confidence does not amount to a stigma has to be repelled. In
\nour, opinion it is not necessary to support our conclusion by
\nreference to precedents or textual opinion as a commonsense
\nassessment of the matter is sufficient to dispose of this aspect.
\n‘Retrenchment’ is defined in
\nS. 2(oo) of the Industrial Disputes Act and excludes termination of
\nservice by the employer as a punishment inflicted by way of
\ndisciplinary action. If the termination in the instant case is held
\nto be grounded upon conduct attaching stigma to the appellant,
\ndisciplinary proceedings were necessary as a condition precedent to
\ninfliction of termination as a measure of punishment. Admittedly this
\nhas not been done. Therefore, the order of termination is vitiated in
\nlaw and cannot be sustained.”\n<\/p>\n
20.\t\tLearned
\nadvocate Mr. P.H. Pathak appearing on behalf of respondent is relied
\nupon decision in support of his submissions in case of Rameshbhai
\nD. Patel v. United Catalyst India Ltd.<\/a>\n<\/p>\n
reported in 2006 (3) GCD 2514 (Guj),
\nwhere, this Court has examined in detail said issue. This Court has
\nconsidered almost decisions which have been relied upon by learned
\nadvocate Mr. B.S. Patel hereinabove on both grounds; (i) Whether
\nconcerned respondent is a ‘workman’ or not ? and (ii) when service is
\nterminated on the basis of loss of confidence  then whether it
\namounts to a stigma or not and being a condition precedent,
\ndepartmental inquiry is required to be initiated or not ? This has
\nbeen discussed by this Court in detail in para 21, 22, 25 to 30 and
\n35, upon which, learned advocate Mr. Pathak is relying. Therefore,
\nsame are quoted as under :\n<\/p>\n
“21.\t\tAs
\nregards the contention raised by the learned Advocate Mr. K.M. Patel
\nabout loss of confidence, such assertion against the workman amounts
\nto stigma\/allegation by the management. Plea of loss of confidence
\nwas raised in written statement in one sentence and one sentence in
\ndeposition. However, on what basis, the Management has lost the
\nconfidence from the employee, that has not been clarified by the
\nmanagement. No evidence in that regard was led by the management to
\nprove serious allegation against the workman after raising plea of
\nloss of confidence. It is necessary to note that in show cause notice
\ndated 2nd September, 1983, though specific allegations
\nwere made by the management against workman, in that show cause
\nnotice also, plea of loss of confidence is not incorporated by the
\nmanagement. Contention of loss of confidence was raised by the
\nmanagement against workman before the labour court without making any
\nallegation in that regard in the show cause notice. Allegation of
\nloss of confidence has been considered to be stigma  and, therefore,
\nsame is required to be proved by holding inquiry against workman in
\naccordance with the principles of natural justice as per the decision
\nof the Apex Court in  Chandu Lal v. The Management of M\/s. Pan
\nAmerican World Airways Inc.,<\/a> reported in AIR 1985 SC 1128. Therefore,
\nafter considering the arguments\/submissions made by the learned
\nAdvocate Mr.Patel on both the counts, I am of the opinion that the
\nplea of loss of confidence is requiring holding of departmental
\ninquiry. Show cause notice dated 2nd
\nSeptember, 1983 also would require holding of departmental inquiry
\nand yet, undisputedly no departmental inquiry was initiated against
\nthe workman by the   management. Services of workman were terminated
\nby oral order dated 23.9.1983. Therefore, mere contention about loss
\nof confidence is not enough but same is required to be proved by
\nproducing  cogent and convincing evidence in that regard since it
\namounts to stigma against workman and the management has failed to do
\nso after raising of such contention against the workman. One more
\naspect is also required to be noted that the management has taken
\nstand before the labour court knowing fully well that the
\ndepartmental inquiry was not initiated against the workman, then, why
\nthe management has not sought permission from the labour court to
\nprove misconduct by leading proper evidence against workman before
\nthe labour court. No such permission was sought by the management
\nbefore the labour court. In view of that, contention raised by the
\nmanagement about the loss of confidence cannot be accepted and
\n same is therefore not accepted.\n<\/p>\n
22.\tConduct
\nof the Management is also required to be noted for which this court
\nhas gathered impression from record which shows that the intention of
\nthe management was to terminate services of workman immediately and
\nnot to wait for inquiry and that is how the management has acted
\nhurriedly without waiting for inquiry on the basis of letter of
\napology and then request of workman for taking him in service is
\nturned down by terminating his services orally. Apparently, this is
\nsomething done by the management with the workman with an ulterior
\noblique motive after receiving letter of apology from the workman. I
\nfail to understand the strategy which has been adopted\/generated by
\nthe management. It was clear trap\/game of Management against workman.
\nIssuance of show cause notice and receiving reply from the workman,
\nthen, where is question arises to ask for apology from workman except
\nto having intention not to hold inquiry  against workmnan.  So,
\nquestions can raise  pursuant to letter of apology tendered by the
\nworkman. There is no question which would require tendering of letter
\nof apology but evidence of workman was correct  and same is
\nbelievable that he met at Bombay two occasions the main owner of the
\ncompany namely Lalajee Sheth and thereafter met the Manager A.
\nPrakash who suggested him to tender letter of apology to resolve the
\nmatter. For that, the workman agreed and accordingly he tendered
\nletter of apology but second part of the promise which was orally
\ngiven was not acted upon by the management and that resulted into
\ntermination of service of workman. That is how the incident has
\noccurred with the workman by the management. Management has avoided
\nto hold departmental inquiry and that is how this strategy has been
\nadopted because the workman has not admitted the charges leveled
\nagainst him in the show cause notice.\n<\/p>\n
25.\tThus,
\ndefinition of workman under section 2(s) of the ID Act, 1947 covers
\nany person in any industry to do any manual, unskilled, skilled,
\ntechnical, operational, clerical or supervisory work for hire or
\nreward, whether the terms of employment be express or implied,and for
\nthe purposes of any proceeding under this Act in relation to an
\nindustrial dispute, includes any such person who has been dismissed,
\ndischarged or retrenched in connection with or as a consequence of,
\nthat dispute, or whose dismissal,discharge or retrenchment has led to
\nthat dispute but does not include any such person  who is subject to
\nAir Force Act, 1950 or Army Act, 1950 or Navy Act, 1957 or who is
\nemployed in police service or who is employed mainly in a managerial
\nor administrative capacity or  or draws wages exceeding one thousand
\nsix hundred rupees per mensem as specified in clause (i) to (iv) of
\nsection 2(s).  Looking to the aforesaid definition of workman, if an
\nemployee is employed in supervisory capacity and not drawing wags
\nexceeding Rs.1600.00 per mensem,  then, he is covered by the
\ndefinition of workman. Admittedly, at the time of termination of
\nservices of the workman, he was drawing wages of Rs.1325.00 per month
\nwhich is not exceeding Rs.1600.00 per mensem. Therefore, it is the
\nsay of the management that the respondent workman  is having some
\nsupervisory nature of work to be performed, to direct the subordinate
\nstaff or to take work from assisting workmen or to work as shift
\nincharge and having control as well as supervision of subordinate
\nworkers. So, merely because a workman is having some supervisory
\nduties though not having power to employ or discharge any subordinate
\nstaff but not having salary exceeding Rs.1600.00, then, such employee
\nis not excluded from the definition of workman under section 2(s) of
\nthe ID Act, 1947.  It is not the case of the management that the
\nworkman was having power to take independent decision in respect of
\nthe business and policy of company, including the powers to make
\nappointment and\/or to  terminate or retrench any subordinate staff.
\nThere is no power invested in the workman to make
\nappointment\/terminate service. There is also no power invested in the
\nworkman to impose punishment or initiate any departmental inquiry
\nagainst any employee. Workman is also not invested with any power to
\nsanction or refuse leave of any staff subordinate to him. These are
\nthe requirements which are to be considered while appreciating as to
\nwhether any particular employee would fall within the definition of
\nworkman under section 2(s) of the ID Act or not and whether such
\nemployee would be excluded from the definition of workman or not.
\nTherefore, looking to the definition of workman in light of the facts
\nof the case before hand, it is clear that the post of chemist is
\ntechnical post receiving salary not exceeding  Rs. 1600.00 per mensum
\nand also incidentally performing some supervisory work, they  cannot
\nbe considered to be managerial or administrative capacity.  There is
\nno iota of evidence produced by the management before the labour
\ncourt  which would justify that the workman was mainly employed in
\nmanagerial or  administrative capacity.  Learned Advocate Mr. Patel
\nraised contention before this Court that this definition  came into
\neffect by Act 46 of 1982, sec.2(2) w.e.f. 21.8.1984 and before that
\nservices of workman were terminated at that time, only Rs.1000.00
\nsalary was there. Therefore, according to him, at the time of
\ntermination of services of workman, he was receiving salary exceeding
\nRs.1000.00 and, therefore,   otherwise also, it was  out side the
\nscope of section 2(s) of the Act.  Submission of Mr. Patel is not
\ncorrect because in Gujarat,  Amendment has come into effect from 1st
\nAugust, 1981 and by Gujarat Amendment, salary was increased from
\nRs.1000.00 to Rs.1600.00  which aspect has been taken into account by
\nthe Division Bench of this Court  in Vallabhbhai Kalyanbhai Sutariya
\nv. Divisional Controller, GSRTC, Rajkot<\/a> reported in 1993(2) GLR page
\n1159.  Division Bench of this Curt has taken note of this amendment
\nand has come to the conclusion that the salary of Rs.1000.00 has been
\nrevised at Rs.1600.00 with effect from 1.8.1981.   Therefore, in view
\nof the Industrial Disputes (Gujarat Amendment) Act,1981, limit of
\nwages in Sec. 2(2)(iv) of Rs.1000.00 has been raised to Rs.1600.00 by
\nAmending Act of 1981.  Therefore, in view of this, respondent workman
\nwas receiving salary of Rs.1325.00, not exceeding Rs.1600.00 and
\nconsidering the decision in case of  Burmah Shell Oil Storage and
\nDistributing CO. of India Ltd. (in CA NO. 1477 of 1970); the Burman
\nShell Management of Staff Association (In CA No. 1478 of 1970 v. The
\nBurmah Shell Management Staff Association and others, reported in AIR
\n1971 SC 922 = 1970 II LLJ 509 SC and  also the other decisions
\nreferred to hereinafter, the  post of Chemist is purely a technical
\npost which would require analysis of raw material which is required
\nto be applied and while doing that work with the assistance of those
\nwho are helping the workman, chemist may have some limited power or
\nincidental power to direct to do or not to do some thing and that
\ncannot be considered to be mainly work of managerial or
\nadministrative capacity or managerial in nature.  Burmah Shell Oil
\nStorage and Distributing CO. of India Ltd. (in CA NO. 1477 of 1970);
\nthe Burman Shell Management of Staff Association (In CA No. 1478 of
\n1970 v. The Burmah Shell Management Staff Association and others,
\nreported in AIR 1971 SC 922 = 1970 II LLJ 509 SC, the Apex Court has
\nobserved, in para .24, as under :\n<\/p>\n
“5.\n<\/p>\n
Chemists :\n<\/p>\n
24.
\nOn the question of the duties carried nut by a Chemist, the
\nAssociation examined three witnesses. One of them is M. D. Daniel who
\nhad once worked as a Chemist
\nand is now Foreman (Chemicals). The other two are A. N. Dalal and P.
\nN. Maroha who are both working as Chemists. They have given their
\nqualifications and the nature of work done by them. There are, no
\ndoubt, Assistants who assist the Chemists in the laboratory where
\ntheir work is carried on ; but all the Chemists do their own work
\nwhich is of technical nature. The Chemists have to personally test
\nthe various products received, and also test the products as they are
\naltered in the installations at various stages. All the tests are
\ncarried out by the Chemists personally and there are only a few
\nAssistants who do mere routine work in order to assist the Chemist.
\nThe Chemists, no doubt, ensure that the workmen assisting them do
\ntheir work properly; but that small amount of supervision is only
\nincidental to their own technical work of testing and giving the
\nresults of tests to the Company. Even the Company’s witness Harish
\nBhargava admitted that the Chemists do a large part of the work
\nthemselves, though he added that the Chemists do guide and direct the
\nAnalysts and Laboratory
\nAttendant so as to ensure that the work In the laboratory is
\nperformed efficiently and properly. Even his evidence does not show
\nthat this guidance and direction to the laboratory attendant and
\nanalysts is the principal or substantial work for which a Chemist is
\nemployed. In fact, that work is ancillary to the main work which is
\ndone by the Chemists themselves. The decision of the Tribunal,
\nconsequently, in respect of the Chemists, holding them to be employed
\non technical work and not in supervisory capacity, must be upheld.
\nThey have rightly been held to be workmen.”\n<\/p>\n
26.\tIn
\ncase of Vallabhbhai Kalyanbhai Sutariya Vs. Divisional Controller,
\nSRTC, Rajkot, 1993 (2) GLR 1159, the Division Bench of this Court
\nobserved as under in para .2 and 3 :\n<\/p>\n
“2.\tThe
\n\tonly reason given by the Labour Court for rejecting the Reference on
\nthe ground that the petitioner herein was not a workman was that his
\nsalary was in excess of Rs.1000\/- on the date of the reference. It
\nappears that the Labour Court
\nhas lost sight of the Industrial Disputes (Gujarat Amendment)
\nAct,1981 (‘the Amending Act” for brief). By this Amending Act,
\nthe limit of Rs.1000\/- specified in Sec.2(s) (iv) of the Act has come
\ninto force with effect from 1st
\nAugust,1981. It is not in dispute that the date of the Reference in
\nthe instant case is 11th
\nMay,1982. The date of dismissal is 10th
\nAugust,1981 by which time the Amending Act was brought into force. In
\nthat view of the matter, the petitioner herein could not have been
\nheld to the outside the purview of the workman as defined in Sec.2(s)
\nof the Act.\n<\/p>\n
3.\tThis
\npoint has been answered in favour of the petitioner by the Division
\nBench ruling of this Court in the case of R.G.Makwana v. Gujarat
\nState Road Transport Corporation & Anr.,<\/a> reported in 1986 GLH 678
\n: [1986 (1) GLR 392]. In that case the concerned employee was
\ndismissed from service prior the date of coming into force of the
\nAmending Act. The Reference was made after coming into force thereof.
\nThis Court held that what was required to be seen was the concerned
\nemployee’s salary on the date of the Reference. This Division Bench
\nruling of this Court in the case of R.G.Makwana (supra) is on all
\nfours applicable in the present case.”\n<\/p>\n
27.\tIn
\ncase of S.K.Maini Vs. M\/s. Carona Sahu Company Ltd. And Others, AIR
\n1994 SC 1824, the Apex Court has observed in para .9 as under :\n<\/p>\n
“9.\n<\/p>\n
After giving our careful consideration to the facts and circumstances
\nof the case and the submissions made by the learned counsel for the
\nparties, it appears to us that whether or not an employee is a
\nworkman under S.2(s) of the Industrial Disputes Act is required to be
\ndetermined with reference to his principal nature of duties and
\nfunctions. Such question is required to be determined with reference
\nto the facts and circumstances of the case and materials on record
\nand it is not possible to lay down any strait-jacket formula which
\ncan decide the dispute as to the real nature of duties and functions
\nbeing performed by an
\nemployee in all cases. When an employee is employed to do the types
\nof work enumerated in the definition of workman under Section 2(s),
\nthere is hardly any difficulty in treating him as a workman under the
\nappropriate classification but in the complexity of industrial or
\ncommercial organisations quite a large number of employees are often
\nrequired to do more than one kind of work. In such cases, it becomes
\nnecessary to determine under which classification the employee will
\nfall for the purpose of deciding whether he comes within the
\ndefinition of workman or goes out of it. In this connection,
\nreference may be made to the decision of this Court in Burmah Shell
\nOil Storage and Distribution Company of India Ltd. v. Burmah Shell
\nManagement Staff Association,<\/a> (1970) 2 Lab LJ 590 : (AIR 1971 SC\n<\/p>\n
922). In All India Reserve Bank Employees’ Association v. Reserve
\nBank of India,<\/a> (1 965) 2 Lab LJ 175 : (AIR 1966 SC 305), it has been
\nheld by this Court that the word ‘supervise’ and its derivatives are
\nnot words of precise import and must often be construed
\nin the light of context, for unless controlled, they cover an easily
\nsimple oversight and direction as manual work coupled with the power
\nof inspection and superintendence of the manual work of others. It
\nhas been rightly, contended by both the learned counsel that the
\ndesignation of an employee is not of much importance and what is
\nimportant is the nature of duties being performed by the employee.
\nThe determinative factor is the main duties of the concerned employee
\nand not some works incidentally done. In other words, what is, in
\nsubstance, the work which employee does or what in substance he is
\nemployed to do. Viewed from this angle, if the employee is mainly
\ndoing supervisory work but incidentally or for a fraction of time
\nalso some manual or clerical work, the employee should be held to be
\ndoing supervisory works. Conversely, if the main work is of manual,
\nclerical or of technical nature, the mere fact that some supervisory
\nor other work is also done by the employee incidentally or only a
\nsmall fraction of working
\ntime is devoted to some supervisory works, the employee will come
\nwithin the purview of ‘workman’ as defined in S. 2(s) of the
\nIndustrial Disputes Act.”\n<\/p>\n
28.\tIn
\ncase of Ved Prakash Gupta Vs. M\/s. Delton Cable India (P) Ltd.
\nAIR 1984 SC 914, the Apex Court has observed in para .12 and 13 as
\nunder :\n<\/p>\n
“12.\n<\/p>\n
A perusal of the evidence of WW-1 and MW-1 regarding the nature of
\nthe duties performed by the appellant shows that the substantial part
\nof the work of the appellant consisted of looking after the security
\nof the factory and its property by deputing the watchmen working
\nunder him to work at the factory gate or sending them to watch-towers
\nor around the factory or to accompany visitors to the factory and
\nmaking entries in the visitors’ register as regards the visitors and
\nin the concerned registers as regards materials entering or going out
\nof the premises of the factory. It must be noted that MW-1 has
\nadmitted in his evidence that there is nothing in writing to show
\nwhat duties are to be carried out by the appellant. Placed in such a
\nsituation the appellant might have been doing other items of work
\nsuch as signing identity cards of workmen, issuing some small items
\nof stores like torch-cells etc. to his subordinate watchmen, which
\ncan be got from the stores even under the signatures of watchman and
\nfilling up application forms of other workmen and countersigning them
\nor recommending advances and loans or for promotion of his
\nsubordinates. It must also be remembered that the evidence of both
\nWW-1 and MW-1 shows that the appellant could never appoint or dismiss
\nany workman or order any enquiry against any workman. In these
\ncircumstances we hold that the substantial duly of the appellant was
\nonly of a Security Inspector at the gate of the factory premises and
\nthat it was neither managerial not supervisory in nature in the sense
\nin which those terms are understood in industrial law. In the light
\nof the evidence and the legal position referred to above we are of
\nthe opinion that the finding of the Labour Court that the appellant
\nis not a workman within the meaning of Section 2 (s) of the Act is
\nperverse and could not be supported. On the evidence available on
\nrecord we hold that the appellant clearly falls within the definition
\nof a workman in Section 2 (s) of the Act and that the reference of
\nthe dispute under Section 10 (i) (c) of the Act is valid in law.\n<\/p>\n
13.
\nThe finding of the Labour Court that the enquiry was fair and proper
\nin the light of its own finding that the enquiry officer failed to
\nsummon the necessary witnesses and rejected the request of the
\nappellant for challenging the witnesses could not be stated to be
\ncorrect. On the merits some witnesses were examined on the side of
\nthe management before the Labour Court and they are S. K. Bagga,
\nMW-2, Hira Lal, MW-3, Deep Chand, MW-4 and Laxmi Chand, MW-5 an
\nAccountant of M\/s. Gurumukh Dass MW-2 has deposed about the appellant
\nabusing Durg Singh who according to the appellant was the Secretary
\nof a Labour Union while the appellant and others were trying to
\ncanvass membership for a rival trade union. MWs-3 and 4 are stated to
\nhave corroborated the evidence of MW-2. MW-5 is the only independent
\nwitness examined on the side of the management. It is seen from the
\njudgment of the Labour Court relating to the merits of the case that
\nMW-5 who has deposed about the challans Exts M-7 and M-8 having been
\nreturned to the person who accompanied him from the maintenance
\ndepartment had not supported the management that the appellant abused
\nDurg Singh or any other person within the premises of the factory. It
\nis also seen from the judgment of the Labour Court that though the
\nappellant had produced before the Enquiry Officer 5 sheets of papers
\nwith the signatures of about 100 workmen of the factory in support of
\nthe statement that the appellant had not abused anyone in the factory
\nduring the course of his service and the management had produced Exts
\nM-6, a list of 90 persons before the Enquiry Officer, he had not
\ncalled any of those persons to ascertain the truth regarding the
\nalleged abuse of Durg Singh and S. K. Bagga by the appellant. It is
\nalso seen from the judgment of the Labour Court that the appellant
\nwas not given a list of the management’s witnesses before the
\ncommencement of the domestic enquiry. In these circumstances, we are
\nof the opinion that the conclusion of the Labour Court that the
\nEnquiry Officer had not acted properly in the proceedings and that he
\nhad not given full opportunity to the appellant as required by law
\ndoes not call for any interference. The charge levelled against the
\nappellant is not a serious one and it is not known how the charge
\neven if proved would result in any much less total loss of confidence
\nof the management in the appellant as the management would have it in
\nthe charge. It was argued in the Labour Court that there was no
\nprevious adverse remark against the appellant. There is nothing on
\nrecord to show that any previous adverse remark against the appellant
\nhad been taken into consideration by the management for awarding the
\nextreme penalty of dismissal from service to the appellant even if he
\nhad in fact abused in filthy language Durg Singh and S. K. Bagga. We
\nare therefore of the opinion that the punishment awarded to the
\nappellant is shockingly disproportionate regard being had to the
\ncharge framed against him. We are also of the opinion that no
\nresponsible employer would ever impose in like circumstances the
\npunishment of dismissal to the employee and that victimization or
\nunfair labour practice could well be interred from the conduct of the
\nmanagement in awarding the extreme punishment of dismissal for a
\nflimsy charge of abuse of some worker or officer of the management by
\nthe appellant within the premises of the factory. We therefore hold
\nthat the termination of the appellant’s service is invalid and
\nunsustainable in law, and that he is entitled to reinstatement with
\nfull back wages and other benefits including continuity of, service
\nThe appeal is allowed accordingly with costs quantified at Rupees
\n1,000\/-. The writ petition is dismissed without costs.”\n<\/p>\n
29.\tIn
\ncase of Shri Sudhirkumar s\/o Sourindrakumar Roy v. M\/s. Ferro Alloys
\nCorporation Ltd. 1992 LAB.I.C.657, the Bombay High Court observed in
\npara .8, 9 and 14 as under:\n<\/p>\n
“8.\tAfter
\ncarefully scrutinizing the evidence it appears that the petitioner’s
\nmain function was that of the Chemist-in-Charge and whatever
\nsupervisory  work he discharged that was just incidental to his job.
\nTaking the evidence as a whole, it cannot be said that the petitioner
\nwas mainly discharging the duties of a supervisory nature. In Arkal
\nGovind Raj Rao v. Ciba Geigy of India Ltd., AIR<\/a> 1985 SC 985 : (1985
\nLab IC 1008) in para 8 of the judgment, the Supreme Court has
\nobserved as under (at page SC 987; of AIR) :\n<\/p>\n
“The
\ndefinition of the expression workman hereinbefore extracted clearly
\nshows that the person concerned would not cease to be a workman if he
\nperforms some supervisory duties but he must be a person who must be
\nengaged in a supervisory capacity. Even as a Group Leader of Group
\nII, the evidence produced would show that primarily he continued to
\nwork and perform the same duties which have been found to be clerical
\nbut along with others in the group he also incidentally looked after
\nthe work of other members of the group who were only two in number.
\nIt is, therefore, not possible to concur with the inference drawn by
\nthe Labour Court contrary to the record that while functioning as
\nGroup Leader of Group II, even though appellant was performing his
\nclerical duty the incidental supervisory duties performed by him
\nwould make the appellant a person employed in supervisory capacity.”\n<\/p>\n
9.\tIn
\nBurmah Shell Oil Storage and Distributing Co. of India Ltd. V. The
\nBurmah Sheel Management Staff Association, AIR<\/a> 1971 SC 922 : (1971
\nLab IC 699), it has been observed as under :\n<\/p>\n
(at
\npage 713; of Lab IC 1971) :\n<\/p>\n
‘On
\nthe question of the duties carried nut by a Chemist, the Association
\nexamined three witnesses. One of them is M. D. Daniel who had once
\nworked as a Chemist and is now Foreman (Chemicals). The other two are
\nA. N. Dalal and P. N. Maroha who are both working as Chemists. They
\nhave given their qualifications and the nature of work done by them.
\nThere are, no doubt, Assistants who assist the Chemists in the
\nlaboratory where their work is carried on ; but all the Chemists do
\ntheir own work which is of technical nature. The Chemists have to
\npersonally test the various products received, and also test the
\nproducts as they are altered in the installations at various stages.
\nAll the tests are carried out by the Chemists personally and there
\nare only a few Assistants who do mere routine work in order to assist
\nthe Chemist. The Chemists, no doubt, ensure that the workmen
\nassisting them do their work properly; but that small amount of
\nsupervision is only incidental to their own technical work of testing
\nand giving the results of tests to the Company. Even the Company’s
\nwitness Harish Bhargava admitted that the Chemists do a large part of
\nthe work themselves, though he added that the Chemists do guide and
\ndirect the Analysts and Laboratory Attendant so as to ensure that the
\nwork In the laboratory is performed efficiently and properly. Even
\nhis evidence does not show that this guidance and direction to the
\nlaboratory attendant and analysts is the principal or substantial
\nwork for which a Chemist is employed. In fact, that work is ancillary
\nto the main work which is done by the Chemists themselves. The
\ndecision of the Tribunal, consequently, in respect of the
\nChemists, holding them to be employed on technical work and not in
\nsupervisory capacity, must be upheld. They have rightly been held to
\nbe workmen.’<\/p>\n
The
\nratio of the above decision seems to be that mere giving of guidance
\nand direction to the Laboratory Attendants and Chemists cannot be
\nsaid to be principal or substantial work for which a Chemist is
\nemployed. Such work appears to be ancillary to the main work which is
\ndone by the Chemist. This is exactly the position in the present
\ncase.\n<\/p>\n
14.\tMr.Vaidya
\nrightly argued that the burden was on the respondent employer to show
\nthat the petitioner was working in a supervisory capacity. From the
\nevidence on record, I am of the opinion that the respondent has
\nmiserably  failed to prove that the petitioner was working in a
\nsupervisory capacity. The respondent has not produced any material on
\nrecord to show that the petitioner
\nwas working in a supervisory capacity. Even the evidence led on
\nbehalf of the respondent does not show that the petitioner was
\nemployed in a supervisory capacity. On the other hand, there is
\noverwhelming evidence to show that he was employed as Chemist and was
\nessentially discharging his functions as Chemist. Whatever
\nsupervisory work he did that was ancillary to the job. His
\nsubstantial and primary function remained that of a Chemist. Having
\nregard to these facts, I hold that the petitioner was a ‘workman’
\nwithin the meaning of S.2(s) of Industrial Disputes Act. In view of
\nthis, the matter is remanded back to the lower Court for decision on
\nmerit. No order as to costs.”\n<\/p>\n
30.\tTherefore,
\naccording to my opinion, contention raised by Mr. Patel that the
\nrespondent was not covered by the definition of workman under section
\n2(s) of the Act cannot be accepted and labour court was right in
\nappreciating this aspect of the matter.\n<\/p>\n
35.\tIn
\ncase when the labour court comes to the conclusion that the
\norder\/action of termination of a workman is unjustified and contrary
\nto the principles of natural justice, and it has been passed without
\naffording an opportunity of hearing to employee concerned, then, in
\nsuch circumstances, reinstatement cannot be denied to the workman.
\nThat aspect has been examined by the apex court in The Workmen of
\nAssam Match CO. Ltd. And The Presiding Officer, Labour Court, Assam
\nand Another, reported in 1973 II LLJ 279. The relevant observations
\nmade by the Apex Court in paragraph 5, 7, 8 and 9 are reproduced as
\nunder:\n<\/p>\n
“5.\tIn
\nour opinion, the answer to the question raised by the appellants must
\nunhesitatingly be given in their favour. It is well-settled that
\nwhere in an industrial dispute arising out of a dismissal of a
\nworkman, it is established that the impugned dismissal was
\nunjustified, normal rule is that the dismissed workm an should be
\nreinstated. In regard to disciplinary actions which the employees are
\nentitled to take against their employees, the position in law is no
\nlonger in doubt. The employer can hold an enquiry against his
\nemployee whenever the employer feels that the employee has committed
\nmisconduct as a result of which he should be dismissed from service.
\nIf the enquiry is properly conducted and the conclusion reached at
\nthe enquiry does not appear to be perverse the impugned order of
\ndismissal cannot be successfully challenged before the Tribunal. On
\nthe other hand, if the enquiry is not properly conducted or the
\nfindings recorded at the said enquiry appear to be perverse in the
\nsense that they are not justified by any evidence whatever, the
\nIndustrial Tribunal can examine the question about the alleged
\nmisconduct of the employee on evidence which may be adduced before it
\nby the employer and decide whether the employer is entitled to
\ndismiss the employee. These principles have been laid down by this
\nCourt in several decisions, and both the parties have argued the
\npresent appeal before us on the basis of these principles.\n<\/p>\n
6.\txxx<\/p>\n
7.\tWe
\nare not impressed by this argument. As we have repeatedly pointed
\nout, if an employer is shown to have dismissed his employee without
\njustification and the decision of the dispute resulting from such
\nillegal dismissal takes place, it cannot be urged by the employer
\nthat by reason of passage of time, reinstatement should not be
\nordered. One of the objects which industrial adjudication has to keep
\nin mind is to assure industrial employees security of tenure. There
\nis no doubt that security of tenure for industrial employment tends
\nto create harmonious relations between the employer and the employee,
\nand so this Court has consistently held that in cases of wrongful or
\nillegal dismissal, the normal rule is that the employee who has been
\nillegally or wrongfully dismissed should be reinstated.  We are,
\ntherefore, satisfied that the contention  raised by the
\nSolicitor-General against reinstatement on the ground of passage of
\ntime cannot be accepted.\n<\/p>\n
8.\tIt
\nis then urged that the Tribunal was justified in taking into account
\nthe fact that having regard to what has happened in the present
\nproceedings, it should be held that the respondent has lost
\nconfidence in Dutt and that would be a ground for refusing
\nreinstatement to him.  This argument is plainly misconceived. We do
\nnot think it would be possible to accept the contention that even if
\nan employer is shown to have dismissed his employee wrongfully and
\nwithout justification, the fact that he has adopted such a course
\n(sic) should be taken into account while determining whether
\nreinstatement should be ordered or not.  It would, we think, be
\nunfair to allow an employer in such a case to urge that though the
\ncharge framed against his employee was not justified, the fact that a
\ndomestic enquiry was held against him on such a charge has led to a
\nloss of confidence in the mind of the employer, and so, the employee
\nshould not be reinstated.  If this contention were to prevail, the
\nindustrial employees who are illegally or unjustifiably dismissed
\nwould never get the relief of reinstatement.  Cases may conceivably
\narise where the plea of loss of confidence may and can be entertained
\nbut we have no doubt that the present case does not fall under that
\ncategory.\n<\/p>\n
9.\tBeside,
\nwe cannot over look the fact that on the findings of the Tribunal,
\nthe record of Dutt for 11 years in the employment of the respondent
\nhas been without a blemish. Dutt is, therefore, entitled to claim
\nreinstatement with the respondent when he is shown to have served the
\nrespondent for 11 long years, and it appears that ordinarily he is
\nentitled to look forward to another long spell of service with the
\nrespondent. It is remarkable that though Hussain was similarly charge
\nsheeted by the respondent and was ordered to be dismissed, on the
\nfindings recorded by the Tribunal, his reinstatement has been
\nordered. We wee no distinction between the case of Hussain and that
\nof Dutt.  The fact that Dutt was a foreman in charge of the motor
\nvehicles of the respondent and Hussain was driver of one these
\nvehicles cannot make any difference to the decision of the question
\nwith which we are concerned.”\n<\/p>\n
21.\t\tIn
\nIndustrial Law, burden of prove or burden of
\nproving a fact lies on the party ascertaining the affirmative of the
\nissue and not on the party who denied it. It is for the employer to
\nprove misconduct, for which, workman was dismissed or discharged. In
\nthe first instance, workman cannot be asked to prove that he has not
\ncommitted any act tantamounting to misconduct. Right of employer to
\nadduce additional evidence in a proceedings questioning the legality
\nof order of terminating service must be availed of by making a proper
\nrequest at the time of filing statement of claim or written
\nstatement. When workman is terminated without inquiry, onus to prove
\nthat it was not possible to conduct inquiry and that termination was
\njustified because of misconduct committed by employee lies on
\nmanagement. This aspect, in detail, recently considered by Apex Court
\nin case of Amar Chakravarty & Ors. v. Maruti Suzuki
\nIndia Ltd.,<\/a>
\nreported in 2010 (8) Supreme 299.\n<\/p>\n
Relevant paragraphs 13 to 17 are quoted as under :\n<\/p>\n
“13.\t\tIn
\nour opinion, in light of the settled legal position on the point, the
\njudgment of the High Court is clearly indefensible. Whilst it is true
\nthat the provisions of the Evidence Act, 1872 per se are not
\napplicable in an industrial adjudication, it is trite that its
\ngeneral principles do apply in proceedings before the Industrial
\nTribunal or the Labour Court, as the case may be. (See: Municipal
\nCorporation, Faridabad Vs. Siri Niwas5). In any proceeding, the
\nburden of proving a fact lies on the party that substantially asserts
\nthe affirmative of the issue, and not on the party who denies it.
\n(See: Anil Rishi Vs. Gurbaksh Singh6) Therefore, it follows that
\nwhere an employer asserts misconduct on the part of the workman and
\ndismisses or discharges him on that ground, it is for him to prove
\nmisconduct by the workman before the Industrial Tribunal or the
\nLabour Court, as the case may be, by leading relevant evidence before
\nit and it is open to the workman to adduce evidence contra. In the
\nfirst instance, a workman cannot be asked to prove that he has not
\ncommitted any act tantamounting to misconduct.\n<\/p>\n
14.\t\tIn
\nKarnataka State Road Transport Corporation (supra) relied upon by
\nlearned counsel for the appellant, a Constitution Bench of this Court
\naffirmed the decision of this Court in Shambu Nath Goyal Vs. Bank of
\nBaroda & Ors.7, wherein the issue for consideration was as to at
\nwhat stage, the management is entitled to seek permission to adduce
\nevidence in justification of its decision to terminate the services
\nof an employee. It was held that the right of the employer to adduce
\nadditional evidence, in a proceeding before the Labour Court under
\nSection 10 of the Act, questioning the legality of the order
\nterminating the service must be availed of by the employer by making
\na proper request at the time when it files its statement of claim or
\nwritten statement. It was observed that:\n<\/p>\n
“The
\nmanagement is made aware of the workman’s contention regarding the
\ndefect in the domestic enquiry by the written statement of defence
\nfiled by him in the application filed by the management under Section
\n33 of the Act. Then, if the management chooses to exercise its right
\nit must make up its mind at the earliest stage and file the
\napplication for that purpose without any unreasonable delay.”\n<\/p>\n
15.\t\tSimilarly,
\nin The Workmen of M\/s Firestone Tyre & Rubber Co. (supra), this
\ncourt observed that :\n<\/p>\n
“Even
\nif no enquiry has been held by an employer or if the enquiry held by
\nhim is found to be defective, the Tribunal in order to satisfy itself
\nabout the legality and validity of the order, had to give an
\nopportunity to the employer and employee to adduce evidence before
\nit. It is open to the employer to adduce evidence for the first time
\njustifying his action, and it is open to the employee to adduce
\nevidence contra.” (See also: United Bank of India Vs. Tamil Nadu
\nBanks Deposit Collectors Union & Anr.8; Engineering Laghu Udyog
\nEmployees’ Union Vs. Judge, Labour Court and Industrial Tribunal &
\nAnr.9 emphasis supplied by us) <\/p>\n
16.\t\tIn
\nour opinion, the decisions in Manager, Reserve Bank of India (supra)
\nand Talwara Cooperative Credit and Service Society Limited (supra)
\nrelied upon by the learned counsel for the respondent have no bearing
\non the issue at hand in as much as the said decisions deal with the
\nonus of proof in relation to proving 240 days of continuous service
\nand entitlement to back wages respectively, for which the claims were
\nmade by the workmen, which is not the case here. In the present case,
\nas stated above, the assertion to the effect that it was not
\npractical to hold domestic enquiry to prove the misconduct of the
\nworkman was by the employer and therefore, the assertion has to be
\nproved by the employer and not by the workman.\n<\/p>\n
17.\t\tIn
\nview of the aforesaid position in law, the inevitable conclusion is
\nthat when no enquiry is conducted before the service of a workman is
\nterminated, the onus to prove that it was not possible to conduct the
\nenquiry and that the termination was justified because of misconduct
\nby the employee, lies on the management. It bears repetition that it
\nis for the management to prove, by adducing evidence, that the
\nworkman is guilty of misconduct and that the action taken by it is
\nproper. In the present case, the services of the appellants-workmen
\nhaving been terminated on the ground of misconduct, without holding a
\ndomestic enquiry, it would be for the management to adduce evidence
\nto justify its action. It will be open to the appellants-workmen to
\nadduce evidence in rebuttal. Therefore, the order passed by the
\nLabour Court, shifting the burden to prove issue No. 1 on the workmen
\nis fallacious and the High Court should have quashed it.”\n<\/p>\n
22.\t\tIn
\nlight of various decisions relied upon by learned advocate Mr. B.S.
\nPatel and one decision of this Court relied upon by learned advocate
\nMr. P.H. Pathak and considering reasoning given by Labour Court,
\nBharuch and also order of termination passed by petitioner society on
\nthe ground of loss of confidence without holding departmental inquiry
\nand even without calling any explanation from respondent, apparently,
\ntermination order is found to be stigmatic and clear allegations have
\nbeen made against respondent that he was also involved in other
\nmisconduct, even though, no show-cause notice has been issued prior
\nto passing of termination order. No departmental inquiry was held
\nagainst him and just to receive an information dated 10th
\nFebruary, 2000 from PSI Mr. Parmar that respondent was arrested
\nduring course of employment from society, that letter itself became a
\ncause or ground to terminate services of respondent. But, petitioner
\nsociety has not taken care to find out that is there any material
\navailable with petitioner society regarding involvement of respondent
\nin criminal offence or not ? For that, there is no material at all
\nplaced on record before Labour Court. Even allegations levelled
\nagainst respondent of loss of confidence is also not proved while
\nleading proper evidence by petitioner society. The FIR is produced on
\nrecord, page 34. In that FIR, name of respondent is not mentioned as
\nan accused, but, name of accused is Champakbhai A. Vasava. A
\ncomplaint has been filed by Shri Patel, Branch Manager and Shri
\nAmthabhai. Even in that complaint also, name of respondent is not
\ndisclosed as an accused an no involvement has been pointed in
\ncomplaint against respondent. Therefore, there is no material at all
\nplaced on record by petitioner society before Labour Court which
\njustified stand of loss of confidence for terminating service of
\nrespondent. So, law is settled that if service of employee terminated
\ngrounded on the basis of loss of confidence,
\nthen, holding of departmental inquiry is condition precedent as per
\nApex Court’s decision as referred above and if departmental inquiry
\ndid not held at the time of terminating services, then, at the time
\nof adjudication before Labour Court, petitioner society must have to
\njustify such termination based on loss of confidence, but, according
\nto my opinion, petitioner society has failed to establish allegations
\nbased on loss of confidence against respondent before Labour Court.
\nIf termination is violated basic principles of natural justice and
\ndepartmental inquiry did not held against respondent, then, it is
\nconsidered to be a simple termination, then, simple termination
\namounts to retrenchment under Section 2 (oo) of ID Act and for that,
\nSection 25F of ID Act must have to be satisfied being a condition
\nprecedent which has not been followed undisputedly by petitioner
\nsociety before terminating service of respondent. Therefore, order of
\ntermination which amounts to retrenchment is considered to be ab
\ninitio void as decided by Apex
\nCourt in case of Mohan Lal v. The Management of M\/s.
\nBharat Electronics Ltd.<\/a>\n<\/p>\n
reported in AIR 1981 SC 1253.\n<\/p>\n
Therefore, when management has exercised powers without any material
\nor base or record and simply respondent was arrested, that itself is
\nnot enough to terminate services of respondent, but, there must be
\nsome material or record which is necessary to prove involvement of
\nrespondent in criminal offence. That material was not produced which
\nproved involvement of respondent in criminal offence.\n<\/p>\n
23.\t\tTherefore,
\naccording to my opinion, Labour Court has rightly examined matter and
\nrightly considered evidence on record and also properly dealt with
\nsubmission made by petitioner society and Labour Court has examined
\nissue based on facts and finding of fact recorded by Labour Court
\ncannot consider to be a baseless and perverse or contrary to record.
\nThis Court having limited jurisdiction under Article 227 of
\nConstitution of India. This Court cannot reappreciate evidence which
\nhas been appreciated by Labour Court. This Court cannot act as an
\nappellate authority and in such circumstances, this Court having very
\nlimited jurisdiction under Article 227 of Constitution of India.\n<\/p>\n
24.\t\tThe
\nApex Court has considered issue of interference by this Court while
\nexercising power under Article 227 of Constitution of India in case
\nof Harjinder Singh v. Punjab State Warehousing Corporation
\nreported
\nin 2010(1) Scale 613.\n<\/p>\n
The relevant para 10 and 11
\nare quoted as under :\n<\/p>\n
“10.\n<\/p>\n
We have considered the respective submissions.
\nIn our opinion, the impugned order is liable to be set aside only on
\nthe ground that while interfering with the award of the Labour Court,
\nthe learned Single Judge did not keep in view the parameters laid
\ndown by this Court for exercise of jurisdiction by the High Court
\nunder Articles 226 and\/or 227 of
\nthe Constitution – Syed Yakoob v. K.S. Radhakrishnan and others<\/a>, AIR
\n1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and others<\/a> 2003 (6)
\nSCC 675. In Syed Yakoob’s case, this Court delineated the scope of
\nthe writ of certiorari in the following words:\n<\/p>\n
“The
\nquestion about the limits of the  jurisdiction of High Courts in
\nissuing a writ of certiorari under Article 226 has been frequently
\nconsidered by this Court and the true legal position in that behalf
\nis no longer in doubt. A writ of certiorari can be issued for
\ncorrecting errors of jurisdiction committed by inferior courts or
\ntribunals: these are cases where orders are passed by inferior courts
\nor tribunals without jurisdiction, or is in excess of it, or as a
\nresult of failure to exercise jurisdiction. A writ can similarly be
\nissued where in exercise of jurisdiction
\nconferred on it, the Court or Tribunal acts illegally or properly, as
\nfor instance, it decides a question without giving an opportunity, be
\nheard to the party affected by the order, or where the procedure
\nadopted in dealing with the
\ndispute is opposed to principles of natural justice. There is,
\nhowever, no doubt that the jurisdiction to issue a writ of certiorari
\nis a supervisory jurisdiction and the Court exercising it is not
\nentitled to act as an appellate Court. This limitation necessarily
\nmeans that findings of fact reached by the inferior Court or Tribunal
\nas result of the appreciation of evidence cannot be reopened or
\nquestioned in writ proceedings. An error of law which is apparent on
\nthe face of the record can be corrected by a writ, but not an error
\nof fact, however grave it may appear to be. In regard to a finding of
\nfact recorded by the Tribunal, a writ of certiorari can be issued if
\nit is shown that in recording the said finding, the Tribunal had
\nerroneously refused to admit admissible and material evidence,
\nor had erroneously admitted inadmissible evidence which has
\ninfluenced the impugned finding. Similarly, if a finding of fact is
\nbased on no evidence, that would be regarded as an error of law which
\ncan be corrected by a writ of certiorari.\n<\/p>\n
In dealing with this category of cases, however, we must always bear
\nin mind that a finding of fact recorded by the Tribunal cannot be
\nchallenged in proceedings for a writ of certiorari on the ground that
\nthe relevant and material evidence adduced before the Tribunal was
\ninsufficient or inadequate to sustain the impugned finding. The
\nadequacy or sufficiency of evidence led on a point and the inference
\nof fact to be drawn from the said finding are within the exclusive
\njurisdiction of the Tribunal, and the said points cannot be agitated
\nbefore a writ Court. It is within these limits that the jurisdiction
\nconferred on the High Courts under Article 226 to issue a writ of
\ncertiorari can be legitimately exercised (vide Hari Vishnu Kamath v.
\nSyed Ahmad Ishaque<\/a> 1955 (1) SCR 1104, Nagandra Nath Bora
\nv. Commissioner of Hills Division and Appeals Assam<\/a> 1958 SCR 1240 and
\nKaushalya Devi v. Bachittar Singh AIR<\/a> 1960 SC 1168).\n<\/p>\n
It
\nis, of course, not easy to define or adequately describe what an
\nerror of law apparent on the face of the record means. What can be
\ncorrected by a writ has to be an error of law; hut it must be such an
\nerror of law as can be regarded as one which is apparent on the face
\nof the record. Where it<\/p>\n
is
\nmanifest or clear that the conclusion of law recorded by an inferior
\nCourt or Tribunal is based on an obvious mis-interpretation of the
\nrelevant statutory provision, or sometimes in ignorance of it, or may
\nbe, even in disregard of it, or is expressly founded on reasons which
\nare wrong in law, the said conclusion can be corrected by a writ of
\ncertiorari. In all these cases, the impugned conclusion should be so
\nplainly inconsistent with the relevant statutory provision that no
\ndifficulty is experienced by the High Court in holding that the said
\nerror of law is apparent on the face of the record. It may also be
\nthat in some cases, the impugned error of law may not be obvious or
\npatent on the face of the record as such and the Court may need an
\nargument to discover the said error; but there can be no doubt that
\nwhat can be corrected by a
\nwrit of certiorari is an error of law and the said error must, on the
\nwhole, be of such a character as would satisfy the test that it is an
\nerror of law apparent on the face of the record. If a statutory
\nprovision is reasonably capable of two constructions and one
\nconstruction has been
\nadopted by the inferior Court or Tribunal, its conclusion may not
\nnecessarily or always be open to correction by a writ of certiorari.
\nIn our opinion, it is neither possible nor desirable to attempt
\neither to define or to describe adequately all cases of errors which
\ncan be appropriately described as errors of law apparent on the face
\nof the record. Whether or not an impugned error is an error of law
\nand an error of law which is apparent on the face of the record, must
\nalways depend upon the facts and circumstances of each case and upon
\nthe nature and scope of the legal provision which is alleged to have
\nbeen misconstrued or contravened.”\n<\/p>\n
11.
\nIn Surya Dev Rai’s case, a two-Judge Bench, after threadbare analysis
\nof Articles 226 and 227 of the Constitution and considering large
\nnumber of judicial precedents, recorded the following conclusions:\n<\/p>\n
“(1)
\nAmendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115
\nof the Code of Civil Procedure cannot and does not affect in any
\nmanner the jurisdiction of the High Court under Articles 226 and 227
\nof the Constitution.\n<\/p>\n
(2)<\/span><\/p>\n
Interlocutory orders, passed by the courts subordinate to the High
\nCourt, against which remedy of revision has been excluded by CPC
\nAmendment Act 46 of 1999 are nevertheless open to challenge in, and
\ncontinue to be subject to, certiorari and supervisory jurisdiction of
\nthe High Court.\n<\/p>\n
(3)<\/span><\/p>\n
Certiorari, under Article 226 of the Constitution, is issued for
\ncorrecting gross errors of jurisdiction i.e. when a subordinate court
\nis found to have acted (i) without jurisdiction — by assuming
\njurisdiction where there exists none, or (ii) in excess of its
\njurisdiction — by overstepping or crossing the limits of
\njurisdiction, or (iii) acting in flagrant disregard of law or the
\nrules of procedure or acting in violation of principles of natural
\njustice where there is no procedure specified, and thereby
\noccasioning failure of justice.\n<\/p>\n
(4)<\/span><\/p>\n
Supervisory jurisdiction under Article 227 of the Constitution is
\nexercised for keeping the subordinate courts within the bounds of
\ntheir jurisdiction. When a subordinate court has assumed a
\njurisdiction which it does not have or has failed to exercise a
\njurisdiction which it does have or the jurisdiction though available
\nis being exercised by the court in a manner not permitted by law and
\nfailure of justice or grave injustice has occasioned thereby, the
\nHigh Court may step in to exercise its supervisory jurisdiction.\n<\/p>\n
(5)<\/span><\/p>\n
Be it a writ of certiorari or the exercise of supervisory
\njurisdiction, none is available to correct mere errors of fact or of
\nlaw unless the following requirements are satisfied: (i) the error is
\nmanifest and apparent on the face of the proceedings such as when it
\nis based on clear ignorance or utter disregard of the provisions of
\nlaw, and (ii) a grave injustice or gross failure of justice has
\noccasioned thereby.\n<\/p>\n
(6)<\/span><\/p>\n
A patent error is an error which is self-evident i.e. which can be
\nperceived or demonstrated without involving into any lengthy or
\ncomplicated argument or a long-drawn process of reasoning. Where two
\ninferences are reasonably possible and the subordinate court has
\nchosen to take one view, the error cannot be called gross or patent.\n<\/p>\n
(7)<\/span><\/p>\n
The power to issue a writ of certiorari and the supervisory
\njurisdiction are to be exercised sparingly and only in appropriate
\ncases where the judicial conscience of the High Court dictates it to
\nact lest a gross failure of justice or grave injustice should
\noccasion. Care, caution and circumspection need to be exercised, when
\nany of the abovesaid two jurisdictions is sought to be invoked during
\nthe pendency of any suit or proceedings in a subordinate court and
\nthe error though calling for correction is yet capable of being
\ncorrected at the conclusion of the proceedings in an appeal or
\nrevision preferred thereagainst and entertaining a petition invoking
\ncertiorari or supervisory jurisdiction of the High Court would
\nobstruct the smooth flow and\/or early disposal of the suit or
\nproceedings. The High Court may feel inclined to intervene where the
\nerror is such, as, if not corrected at that very moment, may become
\nincapable of correction at a later stage and refusal to intervene
\nwould result in travesty of justice or where such refusal itself
\nwould result in prolonging of the lis.\n<\/p>\n
(8)<\/span><\/p>\n
The High Court in exercise of certiorari or supervisory jurisdiction
\nwill not convert itself into a court of appeal and indulge in
\nreappreciation or evaluation of evidence or correct errors in drawing
\ninferences or correct errors of mere formal or technical character.\n<\/p>\n
(9)<\/span><\/p>\n
In practice, the parameters for exercising jurisdiction to issue a
\nwrit of certiorari and those calling for exercise of supervisory
\njurisdiction are almost similar and the width of jurisdiction
\nexercised by the High Courts in India unlike English courts has
\nalmost obliterated the distinction between the two jurisdictions.
\nWhile exercising jurisdiction to issue a writ of certiorari, the High
\nCourt may annul or set aside the act, order or proceedings of the
\nsubordinate courts but cannot substitute its own decision in place
\nthereof. In exercise of supervisory jurisdiction the High Court may
\nnot only give suitable directions so as to guide the subordinate
\ncourt as to the manner in which it would act or proceed thereafter or
\nafresh, the High Court may in appropriate cases itself make an order
\nin supersession or substitution of the order of the subordinate court
\nas the court should have made in the facts and circumstances of the
\ncase.”\n<\/p>\n
\tA
\nreading of the impugned order shows that
\nthe learned Single Judge did not find any jurisdictional error in the
\naward of the Labour Court. He also did not find that the award was
\nvitiated by any error of law apparent on the face of the record or
\nthat there was violation of rules of natural justice. As a matter of
\nfact, the learned Single Judge rejected the argument of the
\ncorporation that termination of the appellant’s service falls within
\nthe ambit of Section 2(oo)(bb) of the Act, and expressed unequivocal
\nagreement with the Labour Court that the action taken by the Managing
\nDirector of corporation was contrary to Section 25G of the Act which
\nembodies the rule of last come first go. Notwithstanding this, the
\nlearned Single Judge substituted the award of reinstatement of the
\nappellant with compensation of Rs.87,582\/- by assuming that appellant
\nwas initially appointed without complying with the equality clause
\nenshrined in Articles 14 and 16 of the Constitution of India and the
\nrelevant regulations. While doing so, the learned Single
\nJudge failed to notice that in the reply filed on behalf of the
\ncorporation before the Labour Court, the appellant’s claim for
\nreinstatement with back wages was not resisted on the ground that his
\ninitial appointment was illegal or unconstitutional and that neither
\nany evidence was produced nor
\nany argument was advanced in that regard. Therefore, the Labour Court
\ndid not get any opportunity to consider the issue whether
\nreinstatement should be denied to the appellant by applying the new
\njurisprudence developed by the superior courts in recent years that
\nthe court should not pass an award which may result in perpetuation
\nof illegality. This being the position, the learned Single Judge was
\nnot at all justified in entertaining the new plea raised on behalf of
\nthe corporation for the first time during the course of arguments and
\nover turn an otherwise well reasoned award passed by the Labour Court
\nand deprive the appellant of what may be the only source of his own
\nsustenance and that of his family.”\n<\/p>\n
25.\t\tApex
\nCourt has also considered similar question in case of Jai
\nSingh & Ors. v. Municipal Corporation of Delhi and Anr. With
\nMunicipal Corporation of Delhi<\/a> v. Sh. Jai Singh and Ors., 2010 AIR
\nSCW pg. 5968.\n<\/p>\n
Relevant para 25
\nof said judgment is quoted as under:\n<\/p>\n
\t“25.\n<\/p>\n
\t  Undoubtedly, the High Court has the power to reach
\n\tinjustice whenever, wherever found. The scope and ambit of Article
\n\t227 of the Constitution of India had been discussed in the case of
\n\tThe Estralla Rubber Vs. Dass Estate (P) Ltd., [(2001) 8 SCC 97]
\n\twherein it was observed as follows:\n<\/p>\n
\t\t“The
\n\t\tscope and ambit of exercise of power and jurisdiction by a High
\n\t\tCourt under Article 227 of the Constitution of India is examined
\n\t\tand explained in a number of decisions of this  Court. The exercise
\n\t\tof power under this article involves a duty on the High Court to
\n\t\tkeep inferior courts and tribunals within the bounds of their
\n\t\tauthority and to see that they do the duty expected or required of
\n\t\tthem in a legal manner. The High Court is not vested  with any
\n\t\tunlimited prerogative to correct all  kinds of hardship or wrong
\n\t\tdecisions made within the limits of the jurisdiction of the
\n\t\tsubordinate courts or tribunals. Exercise of this power and
\n\t\tinterfering with the orders of  the courts or tribunals is
\n\t\trestricted to cases of serious dereliction of duty and flagrant
\n\t\tviolation of fundamental principles of law or justice, where if the
\n\t\tHigh Court does not interfere,    a grave    injustice    remains
\n\t\tuncorrected. It is also well settled that the  High Court while
\n\t\tacting under this article cannot exercise its power as an appellate
\n\t\tcourt  or substitute its own judgment in place of that of the
\n\t\tsubordinate court to correct an error, which is not apparent on the
\n\t\tface of the  record. The High Court can set aside or ignore  the
\n\t\tfindings of facts of an inferior court or tribunal, if there is no
\n\t\tevidence at all to justify or the finding is so perverse, that no
\n\t\treasonable person can possibly come to such a conclusion, which the
\n\t\tcourt or tribunal has  come to.”\n<\/p>\n
\t\t     In
\n\t\tour opinion, the High Court committed a serious error of
\n\t\tjurisdiction in entertaining the writ petition filed by MCD under
\n\t\tArticle 227 of the Constitution of India in the peculiar
\n\t\tcircumstances of this case. The decision to exercise jurisdiction
\n\t\thad to be taken in accordance with the accepted norms of care,
\n\t\tcaution, circumspection. The issue herein only related to a tenancy
\n\t\tand subletting. There was no lis relating to the ownership of the
\n\t\tland on which the superstructure or the demised premises had been
\n\t\tconstructed. The whole issue of ownership of plot of land No:2,
\n\t\tBlock-B, transport area of Jhandewalan Estate, Desh Bandhu Gupta
\n\t\tRoad, Karol Bagh, New Delhi is the subject matter of a civil suit
\n\t\tbeing Suit No: 361 of 1980 in the High Court of Delhi. The High
\n\t\tCourt, therefore, ought not to have given any opinion on the
\n\t\tquestion of ownership.”\n<\/p>\n
26.\t\tIn
\nMA Azim v. Maharashtra State Road Transport Corporation,
\n2011-I-CLR 283,  it
\nhas been observed by Bombay High Court as under in para
\n11 and 12:\n<\/p>\n
\t“11.\tAt
\n\tthis stage, it would be appropriate to refer to few important
\n\tjudgments of Hon’ble Supreme Court and this Court laying down
\n\ttherein the scope to entertain petition under of Article 226 and 227
\n\tof the Constitution of India. The Hon’ble Supreme Court in a case of
\n\t“Nagendra Nath Bora and Anr. v. Commissioner of Hills Division
\n\tand Appeals, Assam & Ors.,<\/a> reported in AIR 1958 SC 398″ in
\n\tpara No. 30 held thus:-\n<\/p>\n
\t“30.\n<\/p>\n
\t the powers of judicial interference under Art. 227 of the
\n\tConstitution with orders of judicial or quasi-judicial nature, are
\n\tnot greater than the powers under Art. 226 of the Constitution.
\n\tUnder Art. 226, the power of interference may extend to quashing an
\n\timpugned order on the ground of a mistake apparent on the face of
\n\tthe record. But under Art. 227 of the Constitution, the power of
\n\tinterference is limited to seeing that the tribunal functions within
\n\tthe limits of its authority. ”\n<\/p>\n
\t\t\t \tYet
\n\t\t\tin another case, in a case of “Surya Dev Rai v. Ram Chander
\n\t\t\tRai,<\/a> reported in AIR 2003 SC 3044″ the Hon’ble Supreme in
\n\t\t\tits conclusion held :-\n<\/p><\/blockquote>\n
\t\t\t\t(5)<\/span><\/p>\n
\t\t\t\tBe it a writ of certiorari or the exercise of supervisory
\n\t\t\t\tjurisdiction, none is available to correct mere errors of fact or
\n\t\t\t\tof law unless the following requirements are satisfied : (i) the
\n\t\t\t\terror is manifest and apparent on the face of the proceedings
\n\t\t\t\tsuch as when it is based on clear ignorance or utter disregard of
\n\t\t\t\tthe provisions of law, and (iii) a grave injustice or gross
\n\t\t\t\tfailure of justice has occasioned thereby.\n<\/p><\/blockquote>\n
\t\t\t\t(6)<\/span><\/p>\n
\t\t\t\tA patent error is an error which is self-evident, i.e., which can
\n\t\t\t\tbe perceived or demonstrated without involving into any lengthy
\n\t\t\t\tor complicated argument
\n\t\t\t\tor a long-drawn process of reasoning. Where two inferences are
\n\t\t\t\treasonably possible and the subordinate court has chosen to take
\n\t\t\t\tone view the error cannot be called gross or patent.\n<\/p><\/blockquote>\n
\t\t\t\t(7)<\/span><\/p>\n
\t\t\t\tThe power to issue a writ of certiorari and the supervisory
\n\t\t\t\tjurisdiction are to be exercised sparingly and only in
\n\t\t\t\tappropriate cases where the judicial conscience of the High Court
\n\t\t\t\tdictates it to act lest a gross failure of justice or grave
\n\t\t\t\tinjustice should occasion. Care, caution and circumspection need
\n\t\t\t\tto be exercised, when any of the abovesaid two jurisdictions is
\n\t\t\t\tsought to be invoked during the pendency of any suit or
\n\t\t\t\tproceedings in a subordinate court and error though calling for
\n\t\t\t\tcorrection is yet capable of being corrected at the conclusion of
\n\t\t\t\tthe proceedings in an appeal or revision preferred there against
\n\t\t\t\tand entertaining a petition invoking certiorari or supervisory
\n\t\t\t\tjurisdiction of High Court would obstruct the smooth flow and\/or
\n\t\t\t\tearly disposal of the
\n\t\t\t\tsuit or proceedings. The High Court may feel inclined to
\n\t\t\t\tintervene where the error is such, as, if not corrected at that
\n\t\t\t\tvery moment, may become incapable of correction at a later stage
\n\t\t\t\tand refusal to intervene
\n\t\t\t\twould result in travesty of justice or where such refusal itself
\n\t\t\t\twould result in prolonging of the lis.\n<\/p><\/blockquote>\n
\t\t\t\t(8)<\/span><\/p>\n
\t\t\t\tThe High Court in exercise of certiorari or supervisory
\n\t\t\t\tjurisdiction will not covert itself into a Court of Appeal and
\n\t\t\t\tindulge in re-appreciation or evaluation of evidence or correct
\n\t\t\t\terrors in drawing inferences or correct errors of mere formal or
\n\t\t\t\ttechnical character.\n<\/p><\/blockquote>\n
\t \tAnd
\n\tin a case of Babulal S\/o. Navalmal Pipada v. Dropadbai W\/o.Manohar
\n\tGore & Others reported in 2010(5) Mh. LJ, this Court has held
\n\tthus:\n<\/p>\n
\t“One
\n\tcannot be oblivious of the parameters required to be observed for
\n\tthe purpose of exercising supervisory jurisdiction under Article 227
\n\tof the Constitution of India.Unless it is demonstrated that the
\n\timpugned judgment suffers from vice of perversity, arbitrariness or
\n\tis rendered without considering material evidence or is rendered on
\n\tthe basis of no material interference with the finding of
\n\tCourts\/Tribunals is impermissible. The writ jurisdiction cannot be
\n\tinvoked for reappreciating of the evidence or for the purpose of
\n\trectification of minor errors committed by the Tribunals. Unless it
\n\tis demonstrated that the view taken by the MRT is per se against the
\n\tsettled principles of law, it is difficult to interfere with the
\n\tfindings recorded by the Tribunals below.\n<\/p>\n
12.\tTherefore,
\nit is clear from the pronouncements of Supreme Court and this Court
\nwhich are referred supra that the Writ Jurisdiction cannot be invoked
\nfor reappreciating the evidence or for the purpose of rectification a
\nminor errors committed by the Tribunals. Supervisory jurisdiction
\nunder Article 227 cannot be invoked unless it is demonstrated that
\nthe impugned judgments suffers from the vice of perversity,
\narbitrariness or is rendered without considering material evidence or
\nis rendered on the basis of
\nno material evidence or is
\nrendered on the basis of no material, interference with the findings
\nof Courts\/Tribunals is impermissible. Therefore, in light of above,
\nit is relevant to summarized here in below the findings recorded by
\nthe Labour Court on the basis of evidence
\nbrought on record by the parties.”\n<\/p>\n
27.\t\tTherefore,
\ncontentions raised by learned advocate Mr. B.S. Patel appearing on
\nbehalf of petitioner society cannot be accepted, hence, rejected in
\nlight of aforesaid reasoning given by this Court.\n<\/p>\n
28.\t\tTherefore,
\nthere is no substance in present petition. Accordingly, present
\npetition is dismissed. Notice discharged. No order as to costs.\n<\/p>\n
[H.K.\n<\/p>\n
RATHOD, J.]<\/p>\n
#Dave<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Netrang vs Chandrakant on 20 April, 2011 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-135727","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nNetrang vs Chandrakant on 20 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/netrang-vs-chandrakant-on-20-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Netrang vs Chandrakant on 20 April, 2011 - 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