{"id":239898,"date":"2010-01-18T00:00:00","date_gmt":"2010-01-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-vs-dinesh-on-18-january-2010"},"modified":"2016-01-27T02:09:27","modified_gmt":"2016-01-26T20:39:27","slug":"c-vs-dinesh-on-18-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-vs-dinesh-on-18-january-2010","title":{"rendered":"C vs Dinesh on 18 January, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
C vs Dinesh on 18 January, 2010<\/div>\n
Author: S.R.Brahmbhatt,&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\n\n \n\n\n\t \n\nSCA\/4091\/2009\t 8\/ 11\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. 4091 of 2009\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE S.R.BRAHMBHATT\n \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\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\n\t\t\tbe referred to the Reporter or not ?\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\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 ?\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\n\t\n\n \n\n \n=========================================================\n\n\n \n\nC\nG GLASS LTD & 1 - Petitioners\n \n\nVersus\n \n\nDINESH\nAMBALAL PATEL - Respondents\n \n\n=========================================================\nAppearance : \nMR\nNILESH A PANDYA for\nPetitioners: 1 - 2. \nMR RAJESH P MANKAD for\nRespondents \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 S.R.BRAHMBHATT\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 18\/01\/2010 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
Heard
\n\tlearned advocates for the parties.\n<\/p>\n
The
\n\tpetitioner-First Party Employer in Approval Application No. IT No.
\n\t28 of 2001 in Reference (IT) No. 160 of 2001 has approached this
\n\tCourt under Article 227 of the Constitution of India challenging the
\n\torder dated 07.01.2009 passed by the Presiding Officer (IT),
\n\tVadodara rejecting the Approval Application which was filed by the
\n\tpetitioner for seeking approval to order of dismissal passed by the
\n\tCompany in respect of the respondent dismissing him with effect from
\n\t3.8.2001 for the reasons stated thereunder.\n<\/p>\n
The
\n\trespondent workman was served with chargesheet on 16.2.2001
\n\tcontaining allegations that on 15.2.2001, while he was assigned duty
\n\tin the basement area at about 6-45 p.m. the glass draining chute of
\n\tribbon machine got jammed with molten glass, as a result, the ribbon
\n\tmachine was stopped for about one hour. This stopping of ribbon
\n\tmachine resulted into substantial loss to the company. This was
\n\ttreated as gross negligence and followed by inquiry, which resulted
\n\tinto order of dismissal dated 3.8.2001. The workman was dismissed
\n\tvide order dated 3.8.2001. It is required to be noted that prior to
\n\tthe dismissal, the employee was suspended vide order dated 6.3.2001.
\n\tHowever, as the Reference being Reference (IT) No. 160 of 2001 was
\n\tpending, the Company had to file Approval Application being Approval
\n\tApplication No. 28 of 2001 in Reference (IT) No. 160 of 2001,
\n\twhereunder the Company interalia sought specific permission to lead
\n\tevidence in case the inquiry was found to be illegal. It was a stand
\n\tof the Company that while effecting the dismissal order, one month
\n\tsalary, as required under Section 33 (2)(b) of the Industrial
\n\tDisputes Act, 1947 (hereinafter referred to as ‘the I.D. Act’ for
\n\tshort) was sent by money order to the workman and thus, there was a
\n\tdue compliance with provisions of Section 33 (2)(b) of the I.D. Act
\n\tand approval be granted as there was serious misconduct. The
\n\tIndustrial Tribunal after holding inquiry to be illegal vide Exh. 12
\n\torder, which was bye-parte, came to the conclusion that approval did
\n\tnot deserve to be granted. It is pertinent to note that the Company
\n\tdid not challenge the order holding inquiry to be bad and therefore,
\n\tthe ultimate order passed by the Tribunal is sought to be challenged
\n\tin this petition under Article 227 of the Constitution of India.\n<\/p>\n
Shri
\n\tPandya, learned advocate appearing for the petitioner contended that
\n\tTribunal while deciding the Approval Application has not taken into
\n\tconsideration the evidence with regard to due compliance with the
\n\tprovisions of Section 33 (2)(b) of the I.D. Act as the workman has
\n\tclearly admitted that the amount as stated in written statement has
\n\tbeen received but also stated that it was not in due compliance and
\n\tit was not complete and correct wages. Shri Pandya further submitted
\n\tthat written submission made by the Company have not been looked
\n\tinto by the Tribunal while deciding the Approval Application. Shri
\n\tPandya has relied upon the decision of the Apex Court in case of
\n\t Cholan Roadways Ltd. Vs. G. Thirugnanasambandam,
\n\treported in (2005) 3 SCC 241, that Tribunal ought not to have gone
\n\tinto the merits of the case as if it was deciding the subject matter
\n\tof Reference under Section 10(1) of the I.D. Act. The jurisdiction
\n\tof the Tribunal in such a case namely Approval Application under
\n\tSection 33(2)(b) is aptly laiddown by the Apex Court and when there
\n\twas a prima-facie case available to justify the order of dismissal,
\n\tthe Tribunal ought to have accorded its approval to the dismissal of
\n\tthe workman. Shri Pandya has further submitted that the Tribunal has
\n\tnot gone into the aspect with regard to payment of wages and
\n\tTribunal has held that the wages is also not paid in compliance with
\n\tSection 33(2)(b), the matter be remanded and while remanding the
\n\tmatter, the Court may pass even appropriate order awarding adequate
\n\tamount of cost to the workman concerned.\n<\/p>\n
Shri
\n\tPandya submitted that as the Approval Application cannot be equated
\n\twith Permission Application, order of dismissal cannot be said to be
\n\tnonest so as to treat the workman in continuing in service and
\n\taccordingly, the Court may not grant complete wages till it is
\n\tdecided finally, if the Court is remanding the matter to the
\n\tTribunal for appropriate decision on merits. Shri Pandya further
\n\tsubmitted that the Approval Application is merely an exercise, which
\n\thas undertaken by the employer for seeking approval of action of
\n\tdismissal, whereas, the application for permission envisages the
\n\tpermission of the Court and dismissal cannot be brought about unless
\n\tthe permission is granted whenever the approval application would
\n\tnot have same importance as Permission Application. He submitted
\n\tthat there is a difference between Approval Application and
\n\tPermission Application and same should be viewed properly and in
\n\tview of that, Court may not grant any back wages to the workman.
\n\tShri Pandya however, admitted that some appropriate cost may
\n\tcertainly be awarded bearing in mind the time taken in the
\n\tproceedings.\n<\/p>\n
Shri
\n\tMankad, learned advocate appearing for the respondent relied upon
\n\tthe following decisions:-\n<\/p>\n
(i)
\n\t1998 (1) GLH 817 in case of  Samantsinh Himmatsinh Chavda
\n\tVs. G.S.R.T.C, Ahmedabad & Anr.;\n<\/p>\n
(ii)
\n\t20010-1-LL SC 1706 in case of  M.D. Tamil Nadu State
\n\tTransport Corporation Vs. Neethivilangan, Kumbakona,<\/p>\n
(iii)
\n\t 2002-III-LLJ Bombay 1036 in case of  Standard Chartered
\n\tGrindlays Bank Ltd. Vs. Govind Phopale and another;\n<\/p>\n
(iv)1978(o)
\n\tGLHEL-SC 15424 in case of  Lalla Ram Vs. D.C.M. Chemical
\n\tWorks Limited;\n<\/p>\n
(v)
\n\t2004 I CLR 767 in case of  Air India Limited Vs. Libio
\n\tFrancisco Colaco & Anr.\n<\/p>\n
and
\n\tsubmitted that Approval Application cannot be said to be an
\n\tapplication whereby, the dismissal is being effective, granting of
\n\tapproval is not an empty formality and therefore, he submitted that
\n\tif the Court is inclined to remand the matter, subsistence allowance
\n\tat least be granted which is otherwise admissible to the employee as
\n\tif he is under suspension. The granting of subsistence allowance may
\n\tnot preclude the Tribunal to decide the matter on merit, however,
\n\tthe arrears of subsistence allowance, that may be payable, be paid
\n\tbefore the Approval
\n\tApplication is slated for hearing on remand.\n<\/p>\n
Shri
\n\tMankad, learned advocate places on record the certified copy of the
\n\tsettlement between the parties i.e. workmen of the company and
\n\tcompany and submitted that this settlement, which has came into
\n\texistence from 4.7.2001, the wages sought to be paid to the workman
\n\tat the time of issuing the termination order dated 3.8.2001 in
\n\tcompliance with provisions of Section 33 (2)(b), then, the same
\n\twages should have been calculated on the basis of the settlement and
\n\tin that case, the wages paid actually to the workman, were not on
\n\tthe basis of the settlement and not after taking into consideration
\n\tthe increase effected by the settlement and therefore, there was
\n\tclear breach of Section 33 (2)(b) of the I.D. Act.\n<\/p>\n
Looking
\n\tto the rival submissions and observations made by the Apex Court in
\n\tcase of Air India Limited (supra), this Court is of the view that
\n\tthe matter is required to be remanded for following reasons :-\n<\/p>\n
The
\n\tworkman has not categorically made out a case as to on what count
\n\tone month wages, which is admittedly paid was not on one month
\n\twages. Shri Mankad sought to rely upon the settlement arrived at
\n\tbetween the parties namely between the workmen and company,
\n\twhereunder, the workman was certainly entitled to receive higher
\n\twages than the wages actually paid towards one month salary. This
\n\tsettlement is dated 4.7.2001. However, this Court is of the view
\n\tthat when the settlement itself is not pressed into service by the
\n\tCompany nor has it been relied by the workman during the hearing of
\n\tApproval Application before the Tribunal, then same cannot be said
\n\tto be an admissible piece of evidence under Article 227 of the
\n\tConstitution of India. But at the same time, the existence of
\n\tsettlement if proved would not absolve the company from paying the
\n\twages in accordance with the settlement and after counting the wages
\n\tbased upon the settlement. This being the clear proposition of law,
\n\tthe matter even on this count is also required to be remanded so
\n\tthat the parties may lead their evidences with regard to settlement
\n\tbetween the parties and one month’s wages to be paid in compliance
\n\tof Section 33 (2)(b) of the I.D. Act.\n<\/p>\n
The
\n\torder of holding inquiry to be illegal has not been challenged by
\n\tthe petitioner in any forum, therefore, the Court would not now like
\n\twhile remanding the matter, to go beyond it, however, liberty is
\n\trequired to be reserved to the parties to lead evidence afresh in
\n\tcase if so chooses.\n<\/p>\n
The
\n\tTribunal ought to have appreciated the aspect of recording its clear
\n\tfindings with regard to non-compliance with section 33 (2)(b) before
\n\tholding that the same is not complied with. The Tribunal therefore,
\n\twas required to record in unequivocal terms as to what was the pay,
\n\twages payable in compliance with Section 33 (2)(b) and what was
\n\tactually paid and recorded its finding as to in what other terms
\n\tsaid section has not been complied with. The impugned order does not
\n\tdisclose such findings and therefore, on that count also, the order
\n\twould not be sustained in eye of law and the matter is required to
\n\tbe remanded to Tribunal to record its clear findings in this regard
\n\tafter affording opportunity to the parties and taking into
\n\tconsideration the settlement which is sought to be relied upon by
\n\tthe advocate for the workman. Admissibility of the facts will have
\n\tto be decided by the Tribunal when the same is sought to be relied
\n\tupon by the parties for indicating their rival stand in this behalf.\n<\/p>\n
This
\n\tbrings the Court to decide the respite to
\n\tbe granted to the workman as the non-approval of the
\n\tdismissal order would be treated as workman continuing in service.
\n\tIn the instant case, as the record shows and order impugned clearly
\n\tindicates that the employer did not remain vigilant in pursuing the
\n\tApproval Application, which resulted into the Court passing order on
\n\tthe available material before it. The remand has therefore been
\n\twarranted only on account of employer’s inaction and\/or inertia and
\n\ttherefore, the workman is required to be compensated adequately
\n\twhile quashing the impugned order. It is required to be noted at
\n\tthis stage that Tribunal has recorded in terms that inquiry was
\n\tcompleted in slipshod fashion and therefore, bearing in mind the
\n\tdecision of the Apex Court cited at bar on behalf of workman, this
\n\tCourt is of the view that instead of awarding lump sum amount
\n\ttowards cost to the workman while remanding the matter, interest of
\n\tjustice would be met if the petitioner is directed to pay the
\n\tsubsistence allowance by way of costs as per the provisions of Model
\n\tStanding Order
\n\tto the workman from the date of dismissal till the Approval
\n\tApplication is decided by the Tribunal.\n<\/p>\n
\tThe decision of Apex Court in case of  Jaipur
\n\tZilla Sahakari Bhoomi Vikas Bank Ltd. Vs. Shri Ram Gopal Sharma &
\n\tOrs.\n<\/p>\n
\treported in AIR 2002 SC 643 : 2002 (3) SCC 279 : 2002-I-LLJ-834,
\n\tSamantsinh Himmatsinh Chavda (supra) and AIR India Limited (supra),
\n\talso would go to show that effect of non-approval would amount to
\n\tworkman
\n\tcontinuing in service. Had there been a case where the Approval
\n\tApplication simplicitor was being adjudicated, then, it would have
\n\tbeen adjudicated expeditiously and then there would not be any
\n\tquestion of awarding any subsistence allowance as the same would not
\n\tbe admissible but in the instant case, the peculiar facts and
\n\tinertia of the employer has resulted into his inability into pressed
\n\tinto service the documentary evidence in support of his case and
\n\ttherefore, the order impugned is passed relying upon the evidence
\n\tand submissions of the workman only. The remand is therefore
\n\trequired to be made only with a view to enable both the sides to
\n\tclarify their stands. The workman would be required to be either
\n\tawarded exemplary cost so as to take care of the time spent in the
\n\tlitigation. Bearing this in mind, the Court is of the view that the
\n\torder of subsistence allowance which is not in stricto senso
\n\tsubsistence allowance but the amount equivalent to subsistence
\n\tallowance be paid to the workman from
\n\tthe date of dismissal till the Approval Application is decided, in
\n\tother words, the said amount
\n\tis awarded as cost for remanding the matter. The said amount be paid
\n\ton or before 28.02.2010. The order impugned in this petition is
\n\tquashed and set aside and the Tribunal is directed to decide the
\n\tApproval Application as early as possible preferably within 6 months
\n\tfrom the date of receipt of writ of this order. Both
\n\tthe counsels have assured this Court that parties will cooperate in
\n\tearly disposal of the Approval Application.\n<\/p>\n
In
\n\tview of the aforesaid observations, the petition is allowed. Rule is
\n\tmade absolute to the aforesaid extent. There shall be no order as to
\n\tcosts.\n<\/p>\n
(S.R.BRAHMBHATT,
\nJ.)<\/p>\n
pallav<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court C vs Dinesh on 18 January, 2010 Author: S.R.Brahmbhatt,&Nbsp; Gujarat High Court Case Information System Print SCA\/4091\/2009 8\/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4091 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed […]<\/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-239898","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nC vs Dinesh on 18 January, 2010 - 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\/c-vs-dinesh-on-18-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"C vs Dinesh on 18 January, 2010 - 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