Divisional Controller vs Farukhbhai Abdul Rehman Vora
2021 Latest Caselaw 6946 Guj

     C/SCA/8535/2012                             JUDGMENT DATED: 25/06/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8535 of 2012

                                  With
              R/SPECIAL CIVIL APPLICATION NO. 11241 of 2012

FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

================================================================

1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         Yes

3     Whether their Lordships wish to see the fair copy                No
      of the judgment ?

4     Whether this case involves a substantial question                No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

================================================================
                        DIVISIONAL CONTROLLER
                                 Versus
                FARUKHBHAI ABDUL REHMAN VORA & 1 other(s)
================================================================
Appearance:
MR HARDIK C RAWAL(719) for the Petitioner(s) No. 1
. for the Respondent(s) No. 2
MR JS BRAHMBHATT(201) for the Respondent(s) No. 1
MR PARESH J BRAHMBHATT(9788) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5
MR PARITOSH CALLA(2972) for the Respondent(s) No. 2
================================================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 25/06/2021

                            ORAL JUDGMENT

1. Special Civil Application No.8535 of 2012 has been

preferred by the petitioner - Gujarat State Road Transport

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

Corporation against the order dated 18.05.2011 passed by the

Industrial Tribunal, Ahmedabad (hereinafter be referred to as the

"Tribunal") in Approval Application No.140 of 2003 [Reference

(I.T.) No.37 of 2000], whereas, Special Civil Application No.11241

of 2012 has been preferred by the petitioner - Corporation

against the order dated 05.05.2012 passed by the Labour Court,

Ahmedabad in Recovery Application No.47 of 2011.

2. The petitions have been preferred by the petitioner -

Corporation contending that the respondent - workman was

working as a driver in Godhra Division and he remained absent

from 21.11.2001 to 04.01.2002 and, therefore, he was called

upon to face departmental inquiry and he was directed to remain

present, however, he did not remained absent and charge-sheet

No.12 of 2002 was served to the workman and after following

principles of natural justice and several opportunities were given

to the respondent, but he did not remain present in the

departmental inquiry nor he resumed duty upto the date of

examination of the reporter i.e. 26.07.2002. It is also contended

that the second show-cause notice issued on 23.08.2002 which

was replied by the respondent on 29.08.2002. Thereafter, the

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

service of the workman came to be terminated on 10.04.2003

and an amount of Rs.5,000/- as well as Rs.3,673/-, by different

receipts bearing No.9331 and 9332 respectively, paid by way of

money order on the same day i.e. on 10.04.2003 to the

workman, which came to be received by the workman on

12.04.2003. It is also contended that therefore, the Corporation

has filed an approval application before the concerned Tribunal

wherein the workman has falsely contended that he has not

received one month salary and on that ground, the Industrial

Tribunal has rejected the approval application. It is further

contended that in the approval application, the Corporation has

also stated that if the Tribunal came to the conclusion that the

departmental inquiry is illegal then the Corporation may be

permitted to produce necessary evidence thereof. However, no

such opportunity has been afforded to the Corporation and

ultimately, the impugned award / order was passed against the

Corporation.

2.1 It is contended by the Corporation that on that basis, the

workman has filed recovery application which also came to be

allowed by the Tribunal though there was a stand taken by the

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

Corporation that necessary correspondence was being in

progress with the higher authority.

3. The workman has filed affidavit-in-reply in Special Civil

Application No.8535 of 2012 wherein he has denied all the facts

narrated by the Corporation and has reiterated that no

opportunity of hearing was given to the workman in the

departmental inquiry and the workman has not received one

month salary. He has stated that the order passed by the

Tribunal is in consonance with the principles of law and,

therefore, the petition deserves to be dismissed.

4. Heard Mr.Hardik Rawal, learned counsel for the petitioner

and Mr.P. J. Brahmbhatt, learned counsel for the respondent -

workman at length through video conferencing.

5. At the outset, it is pertinent to note that during the

pendency of these petitions, original workman has died and,

therefore, his heirs were brought on record.

6. Mr.Rawal, learned counsel for the petitioner has

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

vehemently submitted the same facts which are narrated

hereinabove. While inviting the attention of the Court to the

various documents, he has submitted that after due inquiry and

considering the past history of the deceased workman, the order

of dismissal was passed and he was already paid one month

salary by way of two money orders. He has submitted that since

the Corporation has not received the receipts of money orders by

the workman, the Corporation has got necessary information

from the postal department with regard to receiving thereof. He

has submitted that though the workman has already received

the notice pay as per the provisions of the Industrial Disputes

Act, 1947 (hereinafter be referred to as the "I.D. Act"), he has

made false statement before the Tribunal as well as filed false

affidavit-in-reply. According to him, the Corporation has filed

approval application for approval of dismissal of the deceased -

workman and the Tribunal ought to have allowed the said

application as there was no prejudice cause to the deceased -

workman. He has submitted that there was specific prayer made

by the Corporation in approval application that in case it is found

by the Tribunal that the departmental inquiry suffers from

irregularity and illegality then necessary opportunity be provided

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

to the Corporation for placing everything on record. According to

him, however, without affording any such opportunity to the

Corporation, the Tribunal has dismissed the approval application

which is not in consonance with the facts and law. He has

submitted that the impugned order is erroneous and not

sustainable in the eyes of law.

6.1 Mr.Rawal, learned counsel for the petitioner has also

submitted that the order passed by the Tribunal in recovery

application is also not legal and valid and as the impugned order

has been stayed by this Court and when approval application

was not properly decided, there was no any right available to the

workman. He has submitted that the order passed by the

Tribunal in recovery application is erroneous and it deserves to

be quashed and set aside. Alternatively, Mr.Rawal, learned

counsel has submitted that the matters may be remanded back

to the Tribunal for fresh adjudication after affording opportunity

to the Corporation to lead necessary evidence.

6.2 Mr.Rawal, learned counsel for the petitioner has relied upon

the decision of the Apex Court in the case of Karnataka State

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

Road Transport Corporation Vs. Lakshmidevamma (SMT)

and another, (2001) 5 SCC 433.

7. Per contra, Mr. Brahmbhatt, learned counsel for the

respondent - workman has vehemently submitted that Section

33 of the I.D. Act is applicable to the facts of the present case

and since there was non-payment of full notice pay and there

was no production of any evidence by the Corporation, the

impugned order passed by the Tribunal is in consonance with the

facts and law. He has submitted that since the dismissal order

was passed without affording any opportunity of being heard to

the deceased, the Tribunal has properly passed the impugned

order. He has submitted that the deceased - workman has

submitted his medical certificate which was not challenged by

the Corporation and since at the relevant time, there was riot in

the entire State, the deceased could not join the duty. He has

submitted that the authority has failed to produce relevant

documents in approval application regarding the departmental

inquiry and there was serious infirmity in dismissal order. He has

submitted that the impugned order of dismissing the approval

application is just and proper and it is sustainable in the eyes of

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

law and, therefore, the petition being Special Civil Application

No.8535 of 2012 and Special Civil Application No.11241 of 2012

may be dismissed with costs.

7.1 Mr.Brahmbhatt, learned counsel for the workman has relied

upon the following decisions in support of his submissions.

(1) Bharat Electronics Limited Vs. Industrial Tribunal,

Karnataka, Bangalore and another, 2008 (2) GLR

1341;

(2) Chhel Singh Vs. MGB Gramin Bank, Pali and others,

(2014) 13 SCC 166;

(3) Ahmedabad Municipal Transport Service Vs.

Budhabhai Atmaram, (1990) 2 SCC 314;

(4) Atlas Cycle (Haryana) Limited Vs. Kitab Singh, (2013)

12 SCC 573;

(5) M/s. Nicks (India) Tools, Vs. Ram Sarat and another,

AIR 2004 SC 4348;

(6) Superintending Engineer Vs. Ashwin Vajubhai

Kavaiya, 2017 (0) AIJEL-HC 237631;

(7) Maganbhai L. Chauhan Vs. Divisional Controller,

G.S.R.T.C., 1999 (1) GLH 527;

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

(8) Divisional Controller Vs. Lilabhai Visabhai Kucchadiya,

2017 (0) AIJEL-HC 237628;

7.2 Mr.Brahmbhatt, learned counsel for the workman has also

submitted that the Tribunal had observed regarding the breach

of principles of natural justice. He has submitted that the

Corporation has to put true story of payment, whereas, there

was non-availability of receipt of money order. He has submitted

that the documents produced before this Court were not

produced by the employer before the Labour Court and,

therefore, those documents cannot be considered at this stage.

He has submitted that now, the workman has died and,

therefore, the purpose to remand the matter to the Labour Court

would not be advisable. He has submitted that the impugned

orders passed by the Labour Court in the approval application

and the recovery application are in consonance with the facts

and law and, therefore, this Court may not disturb the same and

both the petitions may be dismissed. He has submitted that the

decision relied upon by the learned counsel for the petitioner is

not applicable to the present facts and circumstances of the

case.

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

8. In rejoinder, Mr.Rawal, learned counsel for the petitioner

has submitted that the decisions relied upon by the learned

counsel for the respondent - workman are not applicable to the

facts of the present case. He has submitted that the deceased

has played fraud with the Court especially when he has received

the full salary by way of money order, he could have accepted

the facts of receipts of notice pay. He has submitted that the

workman has filed false affidavit and also made false averments

before the Labour Court. He has submitted that the heirs can get

only the retrenchment benefits and they cannot get the entire

amount which has been directed by the Labour Court. He has

submitted that the matter may be remanded to the Labour Court

to decide afresh permitting the Corporation to produce the

evidence in approval application, which was not afforded to the

Corporation. He has prayed to allow both the petitions and

remand the matter to the Labour Court.

9. It is worthwhile to referred to Section 33 of the Industrial

Disputes Act, 1947 which reads as under:-

33.Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.-

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman] -

(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

10. It is well settled that the conditions contained in the proviso

to Section 33(2)(b) of the I.D. Act are mandatory in nature and

their non-compliance would render the order of discharge or

dismissal void or inoperative. If a Tribunal refuses is to grant

approval sought for under Section 33(2)(b) of the I.D. Act, the

effect of it shall be that the order of discharge or dismissal had

never been passed and consequently the workman would be

deemed to have continued in service entitling him to all the

benefits available to him / her.

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

11. On perusal of the decision of the Apex Court in the case of

Karnataka State Road Transport Corporation (supra), while

dealing with Section 10 and Section 33(2)(b) of the I.D. Act, the

Apex Court has observed that the right of a management to lead

evidence before the Labour Court or the Industrial Tribunal in

justification of its decision on the consideration by such tribunal

or court is not a statutory right. This is actually a procedure laid

down by the Supreme Court to avoid delay and multiplicity of

proceedings in the disposal of disputes between the

management and the workman. It is also observed therein that

at the same time, it is also of advantage to the workmen in as

much as they will be put to notice of the fact that the

management is likely to adduce fresh evidence, hence, they can

keep their rebuttal or other evidence ready.

12. The various decisions relied upon by Mr.Brahmbhatt,

learned advocate for the workman are relating to the scope of

Section 33(2)(b) of the I.D. Act.

13. Considering the submissions made by learned advocates

for both the sides and the materials placed on record coupled

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with the decisions relied upon by learned advocates for both the

sides and the provisions of Section33(2)(b) of the I.D. Act, it is

crystal clear that there is no dispute that there is relationship of

employer - employee between the Corporation and the deceased

workman. It is also not in dispute that the deceased workman

was working as driver in the Corporation and he was absent on

duty for certain period. That, he was served with the notice and

directed to join the duty, however, he did not join the duty. It

also appears from the record that the second show-cause notice

has issued to the deceased - respondent and in pursuant to that

show-cause notice, he has sent the medical certificate. It also

appears from the record that ultimately, the Corporation has

terminated the service of the deceased driver and has sent two

different money orders on the same day to him. The dispute is

regarding non-receipt of such money orders by the deceased. It

also appears that the Corporation has filed approval application

before the Tribunal for approval of it's action wherein the

Corporation has submitted certain documents relating to the

departmental inquiry and in issuance of the show-cause notice,

the workman has raised the point of non-receipt of full salary as

notice pay.

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

14. On perusal of the impugned orders, it appears that the

Tribunal, while delaying with the application, has found from the

documentary evidence produced by the employer that the entire

departmental proceeding was conducted by the one and the

same person and ultimately, the Corporation has issued

termination order. On that basis, it was held by the Tribunal that

since there is non-observance of the principles of natural justice,

the departmental proceeding is vitiated. On that basis, the

Tribunal has dismissed the approval application.

15. Now, on perusal of the impugned orders, it clearly appears

that even if it is believed that the workman has received the

notice pay in full, the question of non-observance of principles of

natural justice needs to be decided. It is pertinent to note that so

far as the observation of the Tribunal / Labour Court that there is

non-observance of the principles of natural justice and there is

breach of violation thereof by the Corporation is concerned, such

observation has not been challenged by the Corporation in these

petitions. It is also pertinent to note that the Tribunal has

rejected the approval application not only on the ground of

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

alleged non-payment of salary of one month, but, has also based

it's decision on the ground that the entire departmental

proceeding which includes issuance of show-cause notice,

issuance of charge-sheet as well as passing of punitive order has

been passed by the one and the same person. This observation

of the Tribunal is based upon the documentary evidence

produced by the Corporation itself. Thus, the order of the

Tribunal is based on the two aspects. Now, admittedly, the

Corporation has come with the case that it has paid one month

salary as per the certificates issued by the postal departmental.

If that fact is believed as it is, the facts of issuance of the show-

cause notice as well as issuance of the charge-sheet and passing

of punitive order by one and the same person, is not denied by

the Corporation. It also appears that the observation of the

Tribunal in this respect has not been challenged by the

petitioner. It is pertinent to note that the present petitions are

filed before this Court under the revisional power of this Court

under Article 227 of the Constitution of India. Of course Article

226 of the Constitution of India has been referred to but in reality

it is filed in exercise of revisional power under Article 227 of the

Constitution of India. Therefore, there is limited jurisdiction

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vested in this Court to interfere with the findings of facts which

are based on the materials placed on records before the

Tribunal. Therefore, considering the peculiar facts and

circumstances of the case, this Court is of the considered view

that the order of the Tribunal in rejecting the approval

application cannot be set aside.

16. If the Tribunal rejects the approval application filed by the

employer, the right to file recovery application is available to the

workman concerned who has been discharged or dismissed from

the services. As observed herein, it is well settled that if the

Tribunal refused to grant approval sought for under Section 33(2)

(b) of the I.D. Act, the effect of it would be that the order of

discharge and dismissal had never been passed and

consequently, the workman would be deemed to have continued

in service entitling him to all benefits available to him.

17. Considering the peculiar facts and circumstances of the

case, it is crystal clear that the order of the Tribunal rejecting the

approval application of the employer is based on the factual as

well as legal aspects and it is in consonance thereof and it is

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sustainable in the eyes of law. Further, since the action of the

Corporation employer was not approved by the Tribunal, the

right was available with the workman to file recovery application

for its due. Therefore, considering the peculiar facts and

circumstances of the present case, the findings of facts of the

Tribunal which are based on the materials placed on record

before the Tribunal is sustainable in the eyes of law. In the

present case also, the findings of facts in relation to the

departmental inquiry being vitiated on account of everything

being done by one and same person not being challenged,

attained finality.

18. In that view of the matter, the both the petitions are

required to be dismissed as there is no error on the part of the

Tribunal in rejecting the approval application as well as allowing

recovery application.

19. In view of the above, the petitions are hereby dismissed.

The order dated 18.05.2011 passed by the Industrial Tribunal,

Ahmedabad in Approval Application No.140 of 2003 [Reference

(I.T.) No.37 of 2000] and the order dated 05.05.2012 passed by

C/SCA/8535/2012 JUDGMENT DATED: 25/06/2021

the Labour Court, Ahmedabad in Recovery Application No.47 of

2011 are hereby confirmed.

20. The petitioner - Corporation is directed to comply with the

order of the Tribunal passed in recovery application within a

period of four months from the date of receipt of this order

failing which the amount will carry 6% interest thereof from the

receipt of this order ill its realization. Rule is discharged. Interim

relief, if any, stands vacated.

Sd/-

(DR. A. P. THAKER, J) V.R. PANCHAL