Gujarat High Court
Sumanbhai Kanjibhai Makwana vs Ruti Machinery Spares on 4 August, 2025
NEUTRAL CITATION
C/SCA/8314/2025 JUDGMENT DATED: 04/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8314 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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SUMANBHAI KANJIBHAI MAKWANA
Versus
RUTI MACHINERY SPARES & ANR.
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 04/08/2025
ORAL JUDGMENT
1. The present petition is filed under Articles 226 and 227 of the Constitution of India, assailing the order dated 07.12.2024 passed by the learned labour court in Approval Application No. 8 of 2011 in Reference (LCAD) No. 03 of 2010, whereby the application filed by the respondent-employer under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the "I.D. Act") came to be allowed.
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NEUTRAL CITATION C/SCA/8314/2025 JUDGMENT DATED: 04/08/2025 undefined
2. It is the case of the petitioner that he is a member of the Union who had raised a charter of demands against the respondent-management, seeking a wage revision. The said industrial dispute came to be referred and was registered as Reference (LCAD) No. 3 of 2010, which was pending adjudication before the learned labour court at Ahmedabad. During the pendency of Reference Demand No. 3 of 2010, the petitioner was issued a show- cause notice dated 17.11.2010, directing him to submit an explanation for the alleged misconduct committed against the management. The petitioner submitted his reply on 26.11.2010 along with a medical certificate. Thereafter, the respondent decided to initiate a departmental inquiry against the petitioner and ultimately the inquiry was conducted, and the Inquiry Officer submitted his findings to the management on 13.04.2011. Following this, the respondent issued a show-cause notice on 16.04.2011, and subsequently, passed an order of dismissal from service on 09.05.2011. Since the industrial dispute was pending before the learned labour court, Ahmedabad, therefore, respondent-management filed Approval Application No. Page 2 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:42:22 IST 2025 NEUTRAL CITATION C/SCA/8314/2025 JUDGMENT DATED: 04/08/2025 undefined 8 of 2011 under section 33(2)(b) of the I.D.Act and the respondent has filed the reply objecting the approval application and learned court by passing the impugned order has allowed the said application which is subject matter of challenge before this Court.
3. Heard learned advocate Mr.U.T.Mishra for the petitioner.
4. Learned advocate Mr.Mishra submits that the learned labour court has not assigned any reasons for allowing the approval application. Learned advocate Mr.Mishra submits that a detailed reply was filed by the petitioner opposing the said application, wherein it was specifically contended that the respondent-management had indulged in unfair labour practices and that the petitioner, being an active trade union leader, was being victimized by issuance of the show-cause notice on the ground of alleged unauthorized absence from duty. Learned advocate Mr.Mishra submits that while adjudicating the approval application, the learned labour court failed to consider or discuss any of the contentions raised by the petitioner in his reply. Learned advocate Mr.Mishra submits that while deciding the approval Page 3 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:42:22 IST 2025 NEUTRAL CITATION C/SCA/8314/2025 JUDGMENT DATED: 04/08/2025 undefined application, management has to prove the prima facie case for imposing extreme penalty of dismissal from service and has to justify the order of termination. However, in absence of the same, learned court has committed an error in granting the approval application. Learned advocate Mr.Mishra submits that the charge leveled against the petitioner pertains to unauthorized absence without prior permission. However, without discussing the said charge or explanation offered for remaining on unauthorized leave by the present petitioner, the learned Judge has granted the approval application. Therefore, same is required to be interfered with and the petition is required to be allowed.
5. Having considered the submissions advanced by the learned advocates for the petitioner and perused the reasons recorded by the learned labour court, it emerges that the charge against the petitioner pertained to unauthorized absence from duty. A show-cause notice in this regard was issued to the petitioner on 17.11.2010, and the petitioner submitted his reply on 26.11.2010. Thereafter, departmental proceedings were initiated, and the first hearing was scheduled on Page 4 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:42:22 IST 2025 NEUTRAL CITATION C/SCA/8314/2025 JUDGMENT DATED: 04/08/2025 undefined 03.01.2011. However, the Inquiry Officer was unavailable on that date, and the hearing was rescheduled to 12.01.2011. On 12.01.2011, both the petitioner and the management's representative were present. The management submitted documentary evidence, including copies of the show-cause notice, inquiry notice, acknowledgments, etc. The petitioner submitted an application seeking permission to be represented by an advocate, which was rejected. However, he was permitted to be represented by a co- employees. In the petitioner's presence, the management examined witness namely Mr. Dipakbhai Kori. The petitioner sought time for further participation, which was granted, and the inquiry was adjourned to 19.01.2011. On that date, the petitioner failed to appear despite being duly informed. The management proceeded to examine witness Mr. Narendrabhai Leua on 19.01.2011. In order to provide the petitioner with an opportunity for cross-examination, the inquiry was adjourned to 16.02.2011. Despite due notice, the petitioner again failed to appear on 16.02.2011, and the inquiry was further adjourned to Page 5 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:42:22 IST 2025 NEUTRAL CITATION C/SCA/8314/2025 JUDGMENT DATED: 04/08/2025 undefined 05.03.2011. The petitioner once again remained absent. Consequently, the inquiry proceedings were concluded, and the Inquiry Officer submitted his report on 13.04.2011.
6. During his cross-examination conducted before the learned labour court, the petitioner admitted to having received all communications issued by the respondent- management. He also admitted that he had refused to accept the money order sent by the management. It thus clearly emerges that despite having received all relevant notices from the Inquiry Officer, the petitioner failed to participate in the inquiry proceedings. The petitioner has alleged the violation of principle of natural justice.
7. At this stage reference of the judgment rendered by the Apex Court in the case of Bank Of India vs Apurba Kumar Saha reported in 1994 2 SCC 615 is required to be referred, wherein it is held that the records of the disciplinary proceedings show that the respondent has avoided filing of the written statement for the charges of misconduct leveled against him and had for no valid reasons, refused to participate in the disciplinary proceedings. An employee who has refused to avail the Page 6 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:42:22 IST 2025 NEUTRAL CITATION C/SCA/8314/2025 JUDGMENT DATED: 04/08/2025 undefined opportunity provided to him in disciplinary proceedings of defending himself against the charges of misconduct, cannot be permitted to complaint later that he had been denied a reasonable opportunity of defending himself of the charges leveled against him and disciplinary proceedings conducted against him had resulted in violation of principle of natural justice of fair hearing.
8. Learned labour court, while exercising the power under section 33(2)(b) of the I.D.Act has to give or refuse the permission, at that stage it is not adjudicating the industrial dispute. The jurisdiction of the industrial tribunal under section 33(2)(b) of the I.D.Act cannot be equated with that of section 10 of the of the I.D.Act. While exercising the jurisdiction under section 33(2)(b) of the I.D.Act, the industrial tribunal is required to see as to whether prima facie case has been made out as regards validity or otherwise of the domestic inquiry held against the delinquent employee, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceedings before the Page 7 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:42:22 IST 2025 NEUTRAL CITATION C/SCA/8314/2025 JUDGMENT DATED: 04/08/2025 undefined industrial forum in terms of the provision of the ID Act.
9. In determining whether prima facie case has been made out, the relevant consideration is whether on the evidence laid, it is possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the tribunal, considering this question may itself have arrived on a different conclusion. The tribunal, however, cannot substitute its own judgment for the judgment in question. Learned court has to only consider, whether the view taken is a possible view on the evidence on record. The industrial forum has no jurisdiction while deciding the application under section 33(2)(b) of the I.D.Act to consider whether punishment sough to be meted out by the employer to the workman is harsh or excessive, or to substitute another punishment or to impose any condition before requisite permission could be granted. It cannot substitute its judgment of the management on the question, whether the punishment is unduly severe and to hold that the punishment proposed is not necessary. The question about adequacy of the evidence or its sufficiency or Page 8 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:42:22 IST 2025 NEUTRAL CITATION C/SCA/8314/2025 JUDGMENT DATED: 04/08/2025 undefined satisfactory character is irrelevant. If the court negates the malafides on the part of the employer or any intention to victimize the workers for his participation in the industrial disputes, the tribunal is bound to accord its approval to the action of the employer leaving the propriety of quantum of punishment for being agitated in other proceedings open under the Act. In absence of any case of unfair labour practice or victimization, the learned court is justifying in granting the permission to dismiss the petitioner employee.
10. As the respondent has sent the notice pay at the time of termination, though not accepted, would amount to fulfilling the criteria mentioned under section 33(2)(b) of the I.D.Act. The opinion of this Court is supported by the decision rendered in the case of The Management of Delhi Transport Undertaking Vs. The Industrial Tribunal, Delhi and Anr reported in (1965) 1 SCR 998, wherein it is held as under:-
"The provision as to payment of compensation equivalent to one month's wages to workmen contained in proviso to sub-section (2) of Section 33 of ID Act came up for the consideration of this Court. It was held that the proviso did not mean that the wages for one month have to be actually paid; the employer is expected Page 9 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:42:22 IST 2025 NEUTRAL CITATION C/SCA/8314/2025 JUDGMENT DATED: 04/08/2025 undefined to tender the amount before the dismissal but cannot force the employee to receive the payment before dismissal becomes effective. The making of the tender of the amount, before the order of dismissal becomes effective, would be sufficient compliance."
11. In view of the above, no interference is called for and this petition deserves to be dismissed.
12. Resultantly, this petition is dismissed.
(M. K. THAKKER,J) NIVYA A. NAIR Page 10 of 10 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:42:22 IST 2025