Gujarat High Court
Dhrangadhra Peoples ... vs Naresh Harjivanbhai Agrawal on 9 December, 2021
Bench: A.S. Supehia
C/SCA/14239/2021 ORDER DATED: 09/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14239 of 2021
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DHRANGADHRA PEOPLES CO.OPERATIVE BANK LTD.
Versus
NARESH HARJIVANBHAI AGRAWAL
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Appearance:
MR PS GOGIA(2751) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 09/12/2021
ORAL ORDER
1. In the present writ petition, the petitioner has prayed for the following
reliefs:-
"15. (A) Your Lordship may be pleased to issue the writ of
mandamus/certiorari or any other writ setting aside the impugned
order dated 14.10.20 of the Industrial Court passed in Appeal IC
no.7/19 at Annexure-A and order dated 11.10.19 of the Labour
Court, Rajkot passed in BIR (T) Application no.1/16 at Annexure-
B.
(B) Pending the present petition Your Lordships may be pleased
to stay the implementation and operation of impugned order dated
14.10.20 of the Industrial Court passed in Appeal IC no.7/19 at
Annexure-A and order dated 11.10.19 of the Labour Court, Rajkot
passed in BIR (T) Application no.1/16 at Annexure-B.
(C) Your Lordships may be pleased to grant exparte ad-interim
relief as per para B of the prayer."
2. The respondent-employee of the petitioner Bank was dismissed in
view of the alleged misconduct of supplying incorrect information
with regard to the Voluntary Retirement Scheme (VRS). It is the case
of the petitioner-Bank that the respondent-employee was called upon
to remain present on 21.01.2016 before the Board of Directors after
issuing the charge-sheet on 05.01.2016 and after hearing him, he was
dismissed from service on 22.01.2016. The respondent-employee
challenged the same before the Labour Court, Surendarangar by
filing application being B.I.R. No.1 of 2016. By the order dated
11.10.2019, the Labour Court allowed the application filed by the
respondent-employee and directed the petitioner-Bank to pay full
C/SCA/14239/2021 ORDER DATED: 09/12/2021
back wages and all consequential benefit from 22.01.2016 till his age
of retirement i.e. 31.12.2018.
3. Being aggrieved, the petitioner-Bank filed an appeal before the
Industrial Tribunal, Rajkot by filing Appeal (I.C.) No.7 of 2019,
which was dismissed vide order dated 14.10.2020.
4. Learned advocate Mr.Gogia appearing for the petitioner at the outset
has submitted that the dismissal order of the respondent-employee
has been set aside by the Labour Court on the ground that no
departmental inquiry was held before dismissing the respondent-
employee from service. He has submitted that assuming that no
departmental inquiry is held, then also the Labour Court should have
given a chance to the petitioner-Bank to hold the inquiry. In support
of his submissions, he has placed reliance on the judgment of the
Supreme Court in the case of Divyesh Pandit vs. Management,
NCCBM, 2005 SCC (Land and Services) Page 256.
5. Learned advocate Mr.Gogia for the petitioner-Bank has submitted
that the respondent-workman, who was serving as a Loan Manager
(Officer), will not fall in the definition of "workman" and hence, the
award may be set aside.
6. Learned advocate Mr.Gogia for the petitioner-Bank has submitted
that when there is a financial crisis in the Bank, 100 % back wages
should not be awarded. There are no reasons given by the Labour
Court granting 100% back wages. In support of his submission, he
has placed reliance on the judgment of the Supreme Court in the case
of Management of Madurantakam Coop. Sugar Mills Ltd. vs.
S.Viswanathan, 2005 SCC (Land and Services) Page 372. No further
submissions are made.
C/SCA/14239/2021 ORDER DATED: 09/12/2021
7. The entire issue raised before the Labour Court and before this Court
is premised only on two documents i.e. at Page no.53, which reads as
under:-
"The Dhrangadhra People's Co.-Op. Bank Ltd.
Kalpvrux
Mandvi Chod,
Dhrangadhra-363 310
Ref No.:_________ Date:04-02-2015
MEMORENDOM
To,
Nareshbhai H. Agrawal
As the Bank has decided to give VRS to five members among all, All the
members has signed the circular but you have refused to signed the circular.
In this case it is serious matter of disobey manager's instruction.
Why disciplinary action not took against you?
Clarified within five days.
For, The Dhrangadhra People's Co-Op Bank Ltd.
Sd/-
(K.K.BHANDARI)
Manager
Another document is at Page no.56, which reads as under:-
"The Dhrangadhra People's Co.-Op. Bank Ltd.
Kalpvrux
Mandvi Chod,
Dhrangadhra-363 310
Ref No.:42/381 Date:01-08-2015
MEMORENDOM
Shri Nareshbhai Agrawal
In the BOD meeting held on 29/07/2015, it is unanimously decided to issue
memo to Mr.Naresh Agrawal had asked the some confidential details about
our Bank from the District Registrar-Surendranagar.
In connection with reference to your RTI to District Registrar, Board of
C/SCA/14239/2021 ORDER DATED: 09/12/2021
Directors and Management has decided why the disciplinary action should
not taken against you.
Please reply within 6 days.
For The Dhrangadhra People's Co-Op Bank Ltd.
Sd/-
Manager"
8. Learned advocate Mr.Gogia appearing for the petitioner-Bank has
asserted that in fact these are the charge-sheets through which the
departmental proceedings are initiated against the respondent-
workman and the Labour Court has fallen in error in directing the
petitioner-Bank to reinstate the respondent-employee with 100% back
wages.
9. A bare perusal of the aforesaid documents or purported charge-
sheets will reveal that neither any provisions of law nor regulation of
the Bank have been mentioned nor they contain any charge or any
imputation of charges relating to any provision of misconduct. When
a specific query was raised to the learned advocate Mr.Gogia that
whether in fact these documents can be termed as charge-sheet, he
has asserted that in fact the aforesaid documents are in fact charge-
sheets. In the opinion of this Court the aforesaid memorandums
cannot be in any manner or under any provision of law can be said to
be a charge-sheet as the article of charges are missing, the provision
of article of charges, under which the same are issued, are missing.
The provisions with regard to the alleged misconduct are also
missing.
10. The Labour Court, after examining the petitioner-Bank as well as the
respondent-workman has concluded that in fact the petitioner-Bank
has been dismissed the respondent-workman without holding any
departmental inquiry. No provision or regulation or rule is shown to
C/SCA/14239/2021 ORDER DATED: 09/12/2021
this Court, under which the disciplinary proceedings are required to
be held.
11. Under the circumstances, this Court does not find any illegality as the
entire dismissal of the respondent-employee is premised on illegal
document i.e. so called charge-sheets. Neither they contain the
provisions under which they are issued nor any statement of
imputations are forming part of the memorandums. No provision of
law is pointed out under which the memorandums are issued. No
regulations of the petitioner-Bank or rules are pointed out either
before this Court or before the lower forums prescribing the
procedure required to be followed for imposing the major penalty like
dismissal on an employee. Even the provision of law, under which
the respondent-employee is dismissed is also missing. An employee
cannot be thrown out on the whims of the employer. After
committing such glaring procedural illegality and arbitrariness,
before this Court it has been contended that the respondent-employee
will not fall within the definition of "workman". The aforesaid
submission is also ill-conceived since the proceedings are initiated
under the Gujarat Industrial Relation Act, 1946 (for short "the Act")
which does not define the "workman", but defines an employee under
Section 3(13) of the Act. Section 3(13) of the Act reads as under:-
"3-Definition
[(13) "employee" means any person (including an apprentice) employed
in any industry to do any skilled or unskilled manual, supervisory,
technical or clerical work for hire or reward whether the terms of
employment be express or implied, and includes-
(a) a person employed in the execution of any work in respect of which the
owner of an undertaking is an employer within the meaning of sub-clause
(e) of clause (14),
(b) a person who has been7 [dismissed, discharged or retrenched from
employment or whose services have been terminated] on account of any
dispute relating to a change in respect of which a notice is given or an
application made under section 42 whether before or after his 8
[dismissal, discharge, retrenchment or, as the case may be, termination
C/SCA/14239/2021 ORDER DATED: 09/12/2021
from employment,]
but does not include-
(i) a person who is employed in the police service or as an officer or other
employee of a prison,
(ii) a person who being employed primarily in a managerial
administrative or supervisory capacity draws basic pay (excluding
allowances) exceeding 9 [one thousand] rupees per month, and
(iii) irrespective of the pay drawn, any other person or class of persons
employed in any capacity specified in clause (ii) or in a technical capacity
which the State Government may, by notification in the Official Gazette,
specify in this behalf;]"
12. The respondent-workman, who was working as a Loan Manager,
would definitely come under the definition of Section of 'employee'
3(13) of the Act, as he was doing supervisory work. Thus, the
submission of the learned advocate Mr.Gogia that the respondent-
employee does not fall within the definition of "workman" is
misleading, since definition of 'workman' is stipulated under section
2(s) of I.D.Act which is not applicable to the respondent-employee.
13. The judgment enunciated by the Supreme Court in the case of
Divyesh Pandit (supra), on which reliance has been placed by the
petitioner will not rescue him since the same pertains to the domestic
inquiry and the power is conferred with the Labour Court to lead
evidence before it even additional evidence which was not placed in
the departmental inquiry. In the present case, in fact there is no valid
charge-sheet, there is no provision or regulation stated under which it
is issued, the articles of charges are missing, the provisions with
regard to the misconduct are also missing and no departmental
inquiry is held. Hence, in wake of the aforesaid irregularity, illegality
and perversity committed by the petitioner-Bank, the law enunciated
by the Supreme Court will not apply in this case.
14. There are blatant violations of principles of natural justice as well as
fair-play in this case and the respondent-employee has been thrown
C/SCA/14239/2021 ORDER DATED: 09/12/2021
out by the employer taking shelter of the two memorandums. The
respondent-employee has already retired from service on 31.12.2018.
No provision is pointed out to this Court which enables the petitioner-
Bank to conduct the departmental inquiry after retirement. Hence, the
Labour Court was justified in awarding full back wages from
22.01.2016 to 31.12.2018, the respondent-employee could not have
been ordered reinstatement in wake of his retirement. When there is
glaring illegality in dismissing an employee, the principle of "no
work no pay"will not apply. The Supreme Court in the case of State
Of Uttar Pradesh Versus Dayanand Chakrawarty, 2013 (7) SCC 595
has held thus:
"37. In view of the orders passed by this Court in Harwindra
Kumar(supra), Radhey Shyam Gautam(supra) and Jaswant
Singh(supra), it was not open to the High Court to rely on some
other decision of this Court, ratio of which is not applicable in the
present case for determining back wages of respondents restricting it
to be 20% of the basic salary. We observe that the principle of no
pay no work is not applicable to the employees who were guided by
specific rules like Leave Rules etc. relating to absence from duty.
Such principle can be applied to only those employees who were not
guided by any specific rule relating to absence from duty. If an
employee is prevented by the employer from performing his duties,
the employee cannot be blamed for having not worked, and the
principle of no pay no work shall not be applicable to such
employee."
Thus, when the respondent-employee has been prevented illegally
from performing his duties by illegally dismissing him, he is entitled
to the full back wages / salary for the intervening period.
15. This Court also does not find any illegality or perversity in the
impugned orders - both of Labour Court and the Appellate forum in
granting full back wages. Hence, the present writ petition fails
summarily. There shall be no order as to costs.
(A. S. SUPEHIA, J)
ABHISHEK/43
