Bombay High Court
Machindra Chandrabhan Dange vs Siddhi Cnc Private Limited on 25 November, 2013
Bench: R.V. Ghuge
WP/1494/2012
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1494 OF 2012
Machindra Chandrabhan Dange,
Age 37 Years, Occ. Labour,
R/o Dangewadi, Tq. Pathardi,
District Ahmednagar. ..Petitioner
Versus
Siddhi CNC Private Limited,
Plot No. L-2/3, MIDC Nagapur,
Ahmednagar, through its
Director. ig ..Respondent
...
Advocate for Petitioner : Shri P.V.Barde
Advocate for Respondent : Shri V.N.Upadhye
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: November 25, 2013
...
ORAL JUDGMENT:-
1. Heard learned Advocates for the respective parties.
2. Rule. By consent, Rule is made returnable forthwith and the
petition is taken up for final hearing.
3. Question raised before me is, "Whether it is expected of the
Industrial Court to remand matters to the Labour Court, as a matter of
routine course?"
4. The grievance of the petitioner is that he had filed Revision
(ULP) No.49 of 2010 before the learned Member, Industrial Court,
WP/1494/2012
Ahmednagar challenging the correctness of the judgment and order dated
4.12.2010 and part-I order, on the legality of the domestic enquiry dated
4.2.2009., passed by the Labour Court, Ahmednagar. Vide the final
judgment, the complaint of the petitioner was partly allowed on
4.12.2010, by the Labour Court.
5. The respondent was aggrieved only with the final judgment
dated 4.12.2010 to the extent of the complaint of the petitioner having
been partly allowed.
ig The respondent supported Part I order dated
4.2.2009 but challenged the judgment dated 4.12.2012 by filing Revision
(ULP) No.41 of 2011.
6. Both the Revision (ULP) Nos.49 of 2010 and 41 of 2011 were
taken up together for hearing by the Industrial Court, Ahmednagar. Vide
common judgment dated 11.11.2011, the final judgment and order of the
learned Judge, Labour Court dated 4.12.2010 was quashed and set aside.
There is no observation in the impugned order, as to whether the
Industrial Court is remanding the matter back to the Labour Court for
fresh decision of Complaint (ULP) No. 25 of 2002. It has simply been
ordered that the complaint be expedited as early as possible. For clarity,
the operative part of the said order is reproduced herein below:-
" ORDER
1. The Revision (ULP) No.49 of 2010 is hereby allowed.
WP/1494/2012
2. The Judgment and order passed by learned Judge,
Labour Court dt. 4.12.2010 in Complaint (ULP) No.
25/2002 is hereby quashed and set aside. The Revision
(ULP) No.41 of 2011 in view of the same became
redundant.
3. The learned Judge, Labour Court to expedite the
complaint as early as possible as the complaint is of
2002.
4. R & P be sent to the Labour Court forthwith.
5. In the circumstances there is no order as to costs.
Ahmednagar (P.S.Shinde)
Date: 11.11.2011 Member
Industrial Court, Ahmednagar"
7. Shri Barde, learned Advocate for the petitioner contends
that the reasons in the impugned order commence from paragraph No.8 at
Page No.84 of this petition. In the very opening sentence, the Industrial
Court records that the arguments of the Advocates for both the parties
are heard on judgment dated 4.12.2010. There is no mention of the Part I
order dated 4.2.2009 having been considered in the said paragraph. The
learned Advocate has stressed that the said paragraph No.8, which has
culminated into the order at the end of paragraph No.8 is restricted only
to the judgment dated 4.12.2010 and cannot be read or construed to be
an observation on the Part I order of 4.2.2009.
8. Per contra, learned Advocate for the respondent Shri
WP/1494/2012
Upadhye submits that though it is not so mentioned in the reasons as
regards order dated 4.2.2009, one has to draw an inference that the
learned Member of the Industrial Court desired to make his observations
on the order dated 4.2.2009.
9. It is an admitted position that a compressive revision petition
was filed by the revision petitioner to assail both the orders passed by the
Labour Court in Complaint (ULP) No.25 of 2002 i.e. the order dated
4.2.2009 and order dated 4.12.2010. Revision of the respondent was only
to the extent of assailing order dated 4.12.2010. There is no dispute as
regards the order dated 4.2.2009 having been challenged by the petitioner
herein before the learned Industrial Court.
10. I find from paragraph No.8 of the impugned judgment that
the Industrial Court has made references to the extent of the findings of
the Enquiry Officer and the evidence recorded in the enquiry. The Court
also observes as under:-
" ..... It is settled law that preliminary issue regarding
fairness of enquiry and perversity of findings of the enquiry
officer are required to be framed and decided when the
dismissal was on the basis of enquiry conducted against
employee. As such the findings to that effect drawn by the
learned Judge, Labour Court in my opinion are perverse......"
11. One has to exert to gather an impression from these
observations that the Industrial Court may have found the reasons in
WP/1494/2012
support of the order dated 4.2.2009 to be perverse. However, no
conclusion has been drawn, as to whether the said order is being sustained
or set aside. Similar are the observations while concluding the reasons in
paragraph No.8 which are quoted herein below.
" ..... In my opinion, that is expected when specific
clauses made and alleged by the employee in his complaint.
In view of the aforesaid discussion, I am of the opinion that,
since learned Judge, Labour Court failed to frame the issue
regarding perversity of the findings as well as having taken
shelter of Section 11(A) of I.D.Act the findings drawn by the
learned Judge, Labour Court deserves to be as perverse and
contrary to law. I,therefore, answer point No.1 in the
affirmative ......"
12. Shri Barde, learned Advocate, therefore, makes a serious
grievance about the manner in which both the revisions were dealt with
and the impugned judgment resulting in not only miscarriage of justice
but travesty of justice. He takes a strong exception to the impugned
judgment whereby the case has been remanded to the Labour Court.
13. Shri Upadhye, learned Advocate for the respondent has
vehemently advanced his submission in support of the impugned order. He
contends that though the learned Industrial Court has not specifically
given reasons and has not arrived at his conclusions with specific
observations, yet from the contents of paragraph No.8 as well as the
operative part of the order, one can deduce that the final judgment and
order dated 4.12.2010 passed by the Labour Court is set aside. Shri
WP/1494/2012
Upadhye, learned Advocate for the respondent further canvasses that the
issue of perversity of the findings of the Enquiry Officer was never a
matter of challenge before the Labour Court.
If that be so, then the Industrial Court had no reason to
come to a conclusion that `failure to frame the issue regarding perversity
of the findings leads to the conclusion that the observations of the Labour
Court deserve to be branded as perverse and contrary to law.' The
Industrial Court cannot be oblivious of the law laid down in the case of
Bharat Forge Vs. A.B.Zodage [1996 II CLR 345].
14. I am not in agreement with Shri Upadhye's contentions, in
view of certain observations made by the Industrial Court in paragraph
No.8 of the impugned order, which are reproduced above. In fact, the said
observations, if at all are to be taken as conclusions, would mean that
even the order dated 4.2.2009 is found to be perverse by the Industrial
Court. What prevented the Industrial Court in exercising jurisdiction duly
vested in it by law and draw unambiguous conclusions, is a mystery.
15. Shri Barde, learned Advocate has placed reliance upon
various judgments of the Honourable Apex Court as well as this Court on
the point of remand, as follows:-
(a) Maya Devi (dead) Vs. Smt. Raj Kumari Batra (dead) [2010 ALL
SCR 2193] :-
"16. Recording of reasons in cases where the order is
subject to further appeal is very important from yet another
WP/1494/2012
angle. An appellate Court or the authority ought to have the
advantage of examining the reasons that prevailed with the
Court or the authority making the order. Conversely, absence
of reasons in an appealable order deprives the appellate
Court or the authority of that advantage and casts an
onerous responsibility upon it to examine and determine the
question on its own. An appellate Court or authority may in a
given case decline to undertake any such exercise and remit
the matter back to the lower Court or authority for a fresh
and reasoned order. That, however, is not an inflexible rule,
for an appellate Court may notwithstanding the absence of
reasons in support of the order under appeal before it
examine the matter on merits and finally decide the same at
the appellate stage. Whether or not the appellate Court
should remit the matter is discretionary with the appellate
Court and would largely depend upon the nature of the
dispute, the nature and the extent of evidence that may
have to be appreciated, the complexity of the issues that
arise for determination and whether remand is going to
result in avoidable prolongation of the litigation between the
parties. Remands are usually avoided if the appellate Court
is of the view that it will prolong the litigation. "
(b) Cricket Club of India and others vs. D.R.Shyam and another
[2007 (6) Bom. C.R.356]:-
"9. As regards the third ground of challenge that the
Revisional Court could not have itself decided the issue
regarding the status and ordered reinstatement and at the
most could have remanded the matter to the Labour Court,
as already observed above, once it was found that the
undisputed material on record apparently disclosed the
status of the respondent to be that of an employee within
WP/1494/2012
the meaning of the said expression under the said Act and
there being no other defence raised by the appellant in
support of their decision to terminate the services of the
respondent, we fail to understand what could have been the
occasion for the Industrial Court to remand the matter to the
Labour Court and to keep the parties engaged in the
litigation merely for the sake of the pleasure of the
employer."
(c) Gangaram Rajaram Ingole Vs. Malkarjun Gangadhar Hundekar
[2011 (1) ALL MR 874]:-
" 5. Perusal of the Order 41, Rule 23 of the code of Civil
Procedure empowers the Court to remand the matter back to
the trial Court for fresh adjudication. However, in the
instant case, the lower appellate court has remanded the
matter back to the trial Court second time instead of
deciding the matter itself by framing necessary points. The
Supreme Court in case of Ashwinkumar K. Patel Vs. Upendra
J. Patel and others {AIR 1999 SC 1125 : [1999 (2) ALL MR 412
(SC)] held that the power of the appellate Court under Order
41, Rule 23 should not ordinarily be exercised merely
because in its view reasoning of lower court in some aspects
was wrong. When the material is available before the
appellate court, the appellate Court itself should decide the
appeal, one way or the other. The same view is reiterated
by the Honourable Supreme Court in subsequent
pronouncements"
16. He then has referred the following judgments / orders
passed by this Court pertaining to the impugned orders passed by the very
same learned Member, Industrial Court, Ahmednagar.
WP/1494/2012
(a) Rajendra Bhalchandra Joshi Vs. Shaskiya Sevetil
Abhiyantyanchi Patpedhi [Writ Petition No.6424 of 2011 - Aurangabad -
dated 24.1.2012].
"7. With the assistance of the learned counsel, I have
gone through the judgment. Remand of matter can not be
as a matter of course. Endeavour has to be made by the
Court to put an end to the lis. The whole evidence was
before the Industrial Court. It is not that any of the parties
want to lead evidence and the matter is remitted for the
said purpose. In the present case, the matter is remitted to
the Labour Court only on the ground that the Labour Judge
has not properly differentiated between the non-payment of
suspension allowance and less payment of suspension
allowance. There was no impediment for the Industrial
Court to consider the said aspect on its own merits.
Remanding the matter for the said purpose would not be
proper. The course of remand has to be adopted sparingly
and only in a case where the Court comes to the conclusion
that the evidence is inadequate or the opportunity was not
given to the party. The Industrial Court could have given a
finding on the aspect of less payment of suspension
allowance and/or non-payment of suspension allowance and
its effect on the inquiry. Moreover, the Industrial Court was
also required to consider the order passed in earlier Revision
(ULP) No.4 of 2003 and its effect on its own merits. Whether
the said revision was maintainable, whether it was dismissed
as not maintainable. All these aspects were required to be
considered by the Industrial Court. There was no reason to
remit the matter to the Labour Court for the said purpose."
(b) Maharashtra State Road Transport Corporation Vs. Arjun
WP/1494/2012
Shankar Wagh [Writ Petition No.674 of 2011 - Aurangabad - dated
23.3.2011].
"7. I, therefore, find application of mind by the Industrial
Court insufficient and the Industrial Court appears to be
confused in the matter. This has resulted in refusal to
exercise jurisdiction available to it in accordance with law.
The grievance of respondent / employee needed to be
considered on merits in accordance with law. The defence
of the petitioner / employer also, therefore, needed to
looked into accordingly. As that has not been done, the
impugned judgment will have to be set aside."
(c) Shivaji Karbhari Badak Vs. Indian Seamless Metal Tube Ltd.
[Writ Petition No.10396 of 2012 - Aurangabad - dated 21.2.2013].
"5. No doubt, the order of remand cannot be passed in a
casual manner. If the Industrial Court is not agreeing with
the view taken by the Labour Court, then it can pass
independent order. The Industrial Court has dilated upon
the nature of enquiry and has come to the conclusion that
the enquiry was fair and proper, but only because the
decision on the preliminary issue is being set aside for the
other issues, the matter appears to have been remanded."
(d) Raosaheb Nana Chavan Vs. Parner Sahakari Sakhar Karkhana
[Writ Petition No.2717 of 2012 - Aurangabad - dated 2.5.2013].
" 8. ..... Therefore, in my opinion, the Industrial Court
should not have remanded the matters back to the Labour
Court. The Industrial Court has further observed that, the
Labour Court has granted full back wages without examining
legal aspects. In that respect, it can be safely observed
WP/1494/2012
that, if the Industrial Court was of the opinion that, the
findings recorded by the Labour Court on the point of back
wages are not in accordance with the material placed on
record or in accordance with law, it was possible for the
Industrial Court to decide the said aspect in the Revisions
itself. In revisional jurisdiction, the Industrial Court is
competent to set aside the findings of the Labour Court
which are perverse and contrary to record. Therefore, in my
considered opinion, viewed from any angle, the Industrial
Court was not correct and justified in remanding the matters
back to the Labour Court. The Industrial Court should have
decided the revisions on merits there itself and there was no
question of remand of the matters to the Labour Court."
(e) Sumant Waman Jawale Vs. Vruddheshwar Sahakari Sakhar
Karkhana Ltd. [Writ Petition No.1994 of 2013 - Aurangabad - Dt.
17.6.2013].
"5. It is not a case that the parties wanted to adduce
some evidence. If the Industrial Court had come to the
conclusion that the Judge of the Labour Court has not
applied its mind properly, the Industrial Court could have
decided the matter on merits by appreciating the
application, say and the order."
(f) Balasaheb Bhanudas Bhosale Vs. Laxmi Saw Mill [Writ Petition
No.2747 of 2013 - Aurangabad - Dt. 8.10.2013].
" 8. It is not the case that the Industrial Court has allowed
the parties to adduce fresh evidence. If the reasons are not
properly given by the Labour Court, the Industrial Court may
give reasons and if it does not agree with the reasons and
conclusions of the Labour Court, it may take a different view
WP/1494/2012
as is permissible under the law. But, for the said purpose,
remand is not required."
17. Shri Barde, therefore, concludes his submission by stating
that it is the same Industrial Court, Ahmednagar, which has mechanically
passed the orders of remand in various revision petitions. He further
contends that the observations made by this Court in the above referred
orders pertain to the same Industrial Court, Ahmednagar. He also submits
that there are about 200 such orders, where the same learned Member of
the Industrial Court, Ahmednagar has mechanically remanded the matters
to the Labour Court for reconsideration.
18. It is clear from the matter at hand that the petitioner has
raised two fold contention. Part I order dated 4.2.2009 as well as the
final judgment dated 4.12.2010 were challenged in Revision (ULP) No.49
of 2010. The conclusions drawn by the Industrial Court in the impugned
order, has in fact, resulted in creating confusion. The two fold challenge
before the said Court, at the behest of the petitioner, should have been
dealt with independently and the Industrial Court ought to have drawn it's
conclusions on each of these orders. Instead of doing so, the Industrial
Court has merely made it's observations as if they are "off the cuff"
remarks and it is difficult to trace out from contents of paragraph No.8 as
to which amongst the two impugned orders have been criticized by the
Industrial Court or is it that only the judgment dated 4.12.2010 has been
set aside. Remanding of a case for re-hearing or fresh consideration is not
a formality and certainly not an option so as to enable a Court to abdicate
WP/1494/2012
its powers and jurisdiction.
19. From the orders cited before me, which have been passed by
this Court, it does appear that the concerned Industrial Court has been
mechanically remanding the matters back to the Labour Court at
Ahmednagar. I am convinced that this is a fit case wherein the impugned
judgment deserves to be quashed and set aside. Nevertheless, the said
learned Member, Industrial Court needs to exercise jurisdiction duly
vested in him by law instead of mechanically deciding Revision Petitions
and remanding them back to the Labour Court.
20. In the light of the above, Rule is made absolute in following
terms:-
(a) Present Writ Petition is allowed. The impugned order
dated 11.11.2011 passed by the Member Industrial Court,
Ahmednagar in Revision (ULP) No.49 of 2010 and 41 of 2011
is quashed and set aside.
(b) Both the revision petitions be heard and finally
disposed of by the Industrial Court, Ahmednagar within a
time frame of six months.
(c) The Industrial Court shall strive to look into the
challenges posed against both the impugned orders, which
are subject matter of challenge in the said two revision
petitions in accordance with law and on their merits.
(d) The Industrial Court shall take into consideration the
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observations made by this Court in the above referred orders
as well as this order as regards the mechanical remanding of
matters back to the Labour Court.
(e) In the event, the Industrial Court is convinced that the
matter needs to be remanded back to the Labour Court,
Ahmednagar, it shall be done by adducing reasons for such
remand and after taking into account the observations of this
Court in the said orders referred above.
(f) Parties are at liberty to bring to the notice of the
Industrial court, full text of the above referred orders.
(g) No opinion is expressed by this Court on the merits of
Revision (ULP) Nos.49 of 2010 and 41 of 2011.
(h) Both the parties consent to appear before the
Industrial Court, Ahmednagar on 16.12.2013, as such,
separate notices for appearance of parties by the Industrial
Court, Ahmednagar are dispensed of.
21. There shall be no order as to costs.
( RAVINDRA V. GHUGE, J. )
...
akl
