Gujarat Borosil Ltd vs Bhuneshwar Shivnath Pandit
2021 Latest Caselaw 15348 Guj

     C/SCA/10305/2020                              JUDGMENT DATED: 30/09/2021



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 10305 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA
 =====================================================

1     Whether Reporters of Local          Papers   may      be          NO
      allowed 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 ?

=====================================================
                  GUJARAT BOROSIL LTD.
                           Versus
              BHUNESHWAR SHIVNATH PANDIT
=====================================================
Appearance:
MR. K.M.PATEL, SENIOR ADVOCATE
WITH MR.VARUN K.PATEL(3802) for the Petitioner(s) No. 1
MS. SANGEETA PAHWA for the Respondent(s) No. 1
=====================================================
 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      Date : 30/09/2021
                     ORAL JUDGMENT

1) RULE. Learned advocate Mr. Sangeeta Pahwa waives service of notice of rule on behalf of the respondent.

2) In the present writ petition, the petitioner has sought a direction for quashing and setting aside the award dated 30.03.2019

C/SCA/10305/2020 JUDGMENT DATED: 30/09/2021

passed by the Labour Court, Bharuch in Reference (LCB) No. 160 of 2012. By the aforesaid award, the petitioner is directed to reinstate with continuity of service with 20% back wages and all other consequential benefits. It is the case of the petitioner that the respondent, while in general shift (portion to be taken from the file)

3) Learned Senior Advocate Mr. K.M.Patel appearing for the petitioner has submitted that common department inquiry for both and charge-sheet is conducted against the the respondent as per following the principles of natural justice and certificate standing orders. The Inquiry Officer, thereafter vide his report dated 08.05.2011 has held the charges proved against the respondent. A second show-cause notice was issued on 21.05.2012 calling upon the respondent-workman. Since, grave and serious charges leveled against him were proved, the workman was dismissed from service with effect from 11.06.2012, which gave rise to the industrial dispute and culminated into Reference (LCB) No.160 of 2012.

4) Learned Senior advocate Mr. K.M.Patel has submitted that though the Labour Court vide order dated 05.08.2017 passed below application Exhibit 9, has held the inquiry proceedings as fair and in accordance with principles of natural justice, however, while passing the impugned order, the Labour Court again reappreciated the validity of proceedings and set aside the order of dismissal. He has submitted that the Labour Court was influenced with the factor that the petitioner had not produced the original documents of the inquiry proceedings however, the photocopy of the same was produced and on the said premise, the inquiry proceeding were

C/SCA/10305/2020 JUDGMENT DATED: 30/09/2021

held to be valid. Further, it is submitted that another factor which has weighed upon the Labour Court is with record to non production of the certified copies of the standing orders. Hence, it is submitted that the Labour Court has fallen in error by holding that it was unable to interpret the provisions of the standing orders under which the penalty of punishment was passed. It is submitted that the aforesaid observation is also misconceived since the provisions of the standing orders were already incorporated in the charge-sheet, which was issued to the respondent-workman. Thus, he has submitted that the impugned order is required to be quashed and set aside.

5) Learned Senior advocate Mr.K.M.Patel has submitted that the Labour Court has also erred in considering the aspect that it was not necessary to impose any harsh punishment of dismissal on the workman since he had rendered 17 years of service and was not a habitual offender.

6) In response to the aforesaid submissions, learned advocate Ms.Sangeeta Pahwa appearing for the respondent-workman has submitted that the workman, had in fact, filed an application dated 25.04.2012 seeking the certified copies of the documents, however, the same were not provided. She has submitted that the petitioner was not permitted to enter into the premises of the Company to attend the proceedings and without considering the above aspect, the Inquiry officer vide order dated 08.05.2012 decided the departmental proceeding as ex parte . It is submitted that despite a specific request is made by the respondent-workman to provide the documentary evidence of inquiry proceedings, certified copies of the

C/SCA/10305/2020 JUDGMENT DATED: 30/09/2021

standing order, the petitioner company did not provide the same.

7) Learned advocate Ms. Sangeeta Pahwa has submitted that looking to the misconduct, the Labour Court while exercising the powers under Section 11(A) of the Act, has precisely set aside the punishment order, since the petitioner has served for almost 17 years. It is further submitted that the Labour Court should have appreciated the fact that the departmental proceedings are not held in accordance with law and the inquiry officer without any evidence has held the charges proved and the Labour Court has appropriately examined that aspect, while exercising the powers under the provisions of Section 11A of the Act by setting aside the dismissal order. Thus, she has submitted that the order may not be set aside. She has further contended that the departmental inquiry may be held in accordance with rule and principle of natural justice but it will always open for the respondent-workman to point out that the findings arrived at the in departmental proceedings are erroneous.

8) I have heard the learned advocates appearing for the respective parties.

9) It is not in dispute that by the order dated 05.08.2017, passed below exhibit 9 application, the Labour Court has held that "the findings show that the inquiry was conducted fairly and thereafter, the Inquiry Officer can file accordingly ". It is further observed that "as per the records of the case, the due procedure has been adopted by the first party and conducting the inquiry and therefore, in the interest of justice, I answer the issue No. 1 in

C/SCA/10305/2020 JUDGMENT DATED: 30/09/2021

affirmative", and after observing the order has been passed that the domestic inquiry held against the second party / workman is proper and in accordance with principles of natural justice. Thus, so far as the legality and validity of the proceedings is concerned, the Labour Court has held that the same are as per procedure and in consonance with the principles of natural justice.

10) While examining the the aforesaid aspects, the Labour Court in the impugned order has, while setting aside the punishment order, observed that "the petitioner-company had not produced any original documents with regard to the inquiry proceedings in the case and also the certified copy of the standing orders. "

11) The Court has perused the record and proceedings and from the same it appears that photocopies of the inquiry proceedings are produced.

12) In the considered opinion of this Court the said observations of the Labour Court can be said to be erroneous as such factors were already examined by the Labour Court while upholding the legality and validity of the inquiry proceedings and the factum of not producing the certified copies of such documents should not have weighed upon the labour Court while setting aside the punishment order.

13) The second factor, which had been weighed upon the labour Court is that, the petitioner company has not produced the certified copy of standing orders, and hence, the Labour Court was unable to interpret Sections 28(18), 28(19), and 28(28) of the certified copies of the standing orders of the Company.

    C/SCA/10305/2020                            JUDGMENT DATED: 30/09/2021



14)    At this stage, while examining the charge-sheet, which was

issued to the respondent-workman dated 03.08.2011 would reveal that all the aforesaid provisions are incorporated in the charge-sheet as such and hence, the Labour Court could have examined the aforesaid provisions from the said charge-sheet and if at all the same were required, the Labour Court could have ordered the Management to produce the same in order to examine whether the punishment was imposed in accordance with the standing orders. Thus, the labour Court has also fallen in error in holding in favour of the respondent-workman on this aspect.

15) The labour Court has, thereafter, proceeded to examine the record and held against the findings of the inquiry officer and ultimately it was held that the findings given by the inquiry officer is nothing but the colourable exercise of powers.

16) The said observation of the labour Court would contrary runs to its own order dated 03.08.2011, whereby, the validity and legality of the order is held to be proper and in accordance with law.

17) Thus, it was not open for the labour Court to make observations with regard to the conduct of the inquiry officer in wake of the aforesaid order dated 03.08.2011. Finally, the labour Court has held that "the impugned order of punishment was harsh since the respondent-workman had rendered 17 years of service and he was not a habitual offender". The said observation is also erroneous since the punishment could not depend on a delinquent being a habitual offender or not, since if the misconduct committed

C/SCA/10305/2020 JUDGMENT DATED: 30/09/2021

by an employee is shocking and grave, it is always open for the employer to pass major punishment against such delinquent. A minor lapse or irregularity committed repeatedly may not invite harsh punishment, but a serious and grave misconduct though committed once may invite major punishment.

18) At this stage, it would be apposite to refer to the judgment of the Supreme Court in the case of State of Uttarakhand & ors v. Smt. Sureshwati, 2021 (3) SCC 108. Here, the Supreme Court has reiterated the principles enunciated in the judgment rendered by the Apex Court in case of Workman vs. Firestone Tyre & Rubber Ltd. 1973 (1) SCC 134. The Supreme Court has observed thus:

" Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. 9 wherein the broad principle regarding holding of the enquiry were spelt out as:

"32. From those decisions, the following principles broadly emerge: "(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.

(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.

(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.

(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the

C/SCA/10305/2020 JUDGMENT DATED: 30/09/2021

legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.

(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.

(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.

(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.

(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.

(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens10 within the judicial decision of a Labour Court or Tribunal.

40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under

C/SCA/10305/2020 JUDGMENT DATED: 30/09/2021

Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.

41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11- A."

19) Thus, the award suffers from non application of mind and proceeds on irrelevant aspect as noted hereinabove, and hence, the same is required to be quashed and set aside. The matter is remanded back to labour Court for fresh reconsideration in the aforesaid observations.

20) It is clarified that the contentions of both the sides are left opened, however, the legality and validity of the inquiry proceedings, which are confirmed by the order dated 01.09.2018 passed below exhibit 9, are held to be just and proper and same shall remain intact.

     C/SCA/10305/2020                                  JUDGMENT DATED: 30/09/2021



21)     With      these   observations,     the    impugned       award        dated

30.03.2019 passed by the Labour Court, Bharuch in Reference (LCB) No.160 of 2012 is hereby quashed and set aside to the aforesaid extent only and the labour Court may reexamine the issues after examining the appropriate certified standing orders, which may be produced by the petitioner company and also with regard to the proportionality of the punishment, after considering the standing orders.

22) It will be always open for respondent-workman to agitate with regard to the findings of the departmental proceedings with regard to the guilt of the respondent-workman. As clarified above, so far as the procedure on legality and validity of inquiry proceedings are concerned, the same have already become final.

Sd/-

(A. S. SUPEHIA, J) VISHAL MISHRA