Tata Chemicals Ltd vs Kirit B Barot
2022 Latest Caselaw 1593 Guj

    C/LPA/1815/2017                               CAV JUDGMENT DATED: 11/02/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/LETTERS PATENT APPEAL NO. 1815 of 2017

               In R/SPECIAL CIVIL APPLICATION NO. 1723 of 1999

                                     With
                  CIVIL APPLICATION (FOR STAY) NO. 2 of 2017
                 In R/LETTERS PATENT APPEAL NO. 1815 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA

and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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

1 Whether Reporters of Local Papers may be allowed Yes 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 ?

========================================================== TATA CHEMICALS LTD Versus KIRIT B BAROT & 2 other(s) ========================================================== Appearance:

MR K.M.PATEL, SENIOR ADVOCATE with MR.VARUN K.PATEL(3802) for

DELETED for the Respondent(s) No. 2,3

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

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date :11/02/2022

C/LPA/1815/2017 CAV JUDGMENT DATED: 11/02/2022

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned senior advocate Mr.K.M.Patel with learned advocate Mr.Varun Patel for the petitioner and learned advocate Mr.T.R.Mishra for the respondent, at length.

2. Appellant herein filed Special Civil Application seeking to challenge order dated 29.1.1998 passed by the Industrial Tribunal, Rajkot rejecting the application of the appellant - petitioner for permission under Section 33(3) of the Industrial Disputes Act, 1947, being Permission Application (IT) No.5 of 1992. Learned Single Judge dismissed the petition as per her judgment and order dated 27.4.2017. It is this judgment and order which is sought to be called in question by the appellant preferring this Letters Patent Appeal under Clause 15 of the Letters Patent.

3. Noticing the facts in the background, the respondent - workman was a welder in the Erection Department of the appellant Company. On 20.3.1992. Charge-sheet was issued to the workman alleging against him that on 18.2.1992, while he was on duty in second shift went out of the premises after punching the punch-card and taking gate pass, however did not return to duty till the end of the day. It was alleged that he went out at 7:00 p.m. but did not return till the end of the duty and that he thereby misled the superior officer. It was alleged that the punch-card was illegally used and in the punch-card the time of attending duty was wrongly stated by tampering with the punch clock. The charge-sheet provided for cut in the salary in respect of period of absence. The reply of the workman was asked for and departmental inquiry was initiated. The workman

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was suspended pending inquiry, mentioning so in the charge- sheet itself.

3.1 At the conclusion of the departmental inquiry it was decided to dismiss the workman from service. According to the inquiry officer the charges were proved, pursuant to which the head of the Chemical Division decided to pass the order of dismissal. The workman was 'protected workman' within the definition under the Industrial Disputes Act. Also was pending a reference in which the workman was party. In that view, the Employer was required to seek permission of Industrial Tribunal under Section 33(3) of the Industrial Disputes Act, 1947. Accordingly, the Permission Application was filed before the Industrial Tribunal.

3.2 The Permission Application filed by the appellant - Employer was contested by the workman on the ground inter alia that he was suspended even before seeking the permission, that the inquiry was not properly conducted. The charge was denied. It was contended that even otherwise the charge were not serious and that the inquiry was undertaken keeping a grudge. The grounds came to be raised about non-compliance of natural justice. It appears that the Permission Application initially filed was dismissed by the Industrial Tribunal on 18.9.1996 on the preliminary ground raised by the workman about non-payment of subsistence allowance. Against the said order Special Civil Application was filed before this Court which was disposed of by the Court on 4.7.1997, inter alia directing the Tribunal to decide the Permission Application on merits and further directing to deposit 75% of subsistence allowance. Thereafter the Permission Application was tried afresh by the Tribunal, culminating into impugned order.

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3.3 By filing a joint Pursis at Exhibit 26, both the parties stated that they did not want to lead oral evidence. Application Exhibit 28 came to be filed by the Employer requesting the Tribunal to adjudicate on legality of the inquiry, however in response the workman gave up his contention about legality of show-cause notice and the departmental inquiry, the workman however maintained his case about the legality of conclusions reached by the inquiry officer and the consequent punishment.

3.4 The Tribunal recorded its reasons to conclusion that there was no evidence proving the charge and that the penalty of dismissal imposed on the workman was not justified and was shocking. After supplying reasons and recording circumstances that there was dearth of evidence to prove the charge of tampering the punching machine etc. and even otherwise having already effected cut in the salary for the period of absence, the dismissal was not justified, the Tribunal rejected the Permission Application of the Employer.

3.5 Learned Single Judge found to record in the impugned order that "the Tribunal has rightly held that absence of half a day, assuming that with a wrong excuse, in absence of any possibility of tampering with the punch card, unauthorizedly had led petitioner to decide his dismissal for which no permission was necessary."

4. Assailing the impugned order of learned Single Judge, learned senior advocate for the appellant referred to the grounds in the memorandum of appeal and also repeated the contentions raised before learned Single Judge. It was submitted that under Section 33(3) of the Industrial Disputes Act, the

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scope of the inquiry for the Tribunal was limited and what was permissible for the Tribunal was only to examine prima facie case made out about the legality of findings in the inquiry and the punishment of dismissal. The Tribunal was not sitting as an appellate authority, nor it could have undertaken reappreciation of evidence for considering the question of grant or to refuse the permission. It was sought to be elaborated that the evidence especially of the management side was not properly examined.

4.1 It was submitted that once the prima facie case of serious misconduct was made out, the permission ought to have been granted as the proceedings for permission could not be equated with adjudicatory proceedings under Section 10 of the Act. According to his submission, the charge was proved, and even otherwise the inquiry for the Tribunal to be conducted was limited. On the basis of the decision of the Supreme Court in Bharat Iron Works Vs. Bhagubhai Balubhai Patel [AIR 1976 SC 98], the proposition was put forth that proved misconduct is antithesis of victimization.

4.2 Learned senior advocate relied on decision of the Supreme Court in U.P State Road Transport Corporation Vs. Vinodkumar [(2008) 1 SCC 115], to submit that when the challenge to the fairness to the inquiry was given up, as is also done in the present case, it was not open for the Tribunal to go into the findings recorded by the inquiry officer. The decision in Bharat Forge Company Limited Vs. A.B.Zodge and Another [(1996) 4 SCC 374] was relied on to submit that if the Employer seeks permission to lead evidence in support of order of dismissal, denial of such opportunity to the Employer would be unjustified. Yet another decision in John D'Souza Vs. Karnataka State Road Transport Corporation [(2019) 18

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SCC 47] was relied on for canvassing the scope of proceedings under Section 33(2)(b) of the Act, to submit that it is summary in nature.

4.3 Learned advocate for the appellant further submitted that Tribunal did not grant opportunity to the appellant to lead evidence. Had the opportunity been granted, the case for dismissal could have been justified and it could have been shown that there was enough evidence to justify the guilt of the petitioner of absent from duty and the consequential imposition of penalty. It was submitted that learned Single Judge failed to notice that the order of Tribunal was vitiated on such count.

4.4 On the other hand, learned advocate for the respondent- workman submitted, supporting the findings recorded by the learned Single Judge as well as by the Industrial Tribunal that it was not just the case of disproportionate punishment, but there was emptiness of evidence to support the charge. It was submitted that on various circumstances noticed from the material on record, the conclusion was arrived at that the misconduct alleged could not have been committed at all.

4.5 Learned advocate submitted that salary was deducted while issuing the show-cause notice and the workman was suspended simultaneously passing order in the show-cause notice without even filing the Permission Application. It was highlighted that since the nature of charges and the consequential punishment of dismissal imposed was without any evidence to prove, it was a clear case of victimization of the workman.

4.6 Learned advocate for the respondent relied on the decision

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of the Apex Court in Lalla Ram Vs. Management of D.C.M Chemical Works Limited [AIR 1978 SC 1004] to highlight the propositions mentioned in paragraph No.12, as to the exercise of powers by the Tribunal under Section 33(2)(b) of the Act.

5. Dealing with the last submission of the appellant that the appellant- Employer was required to be given opportunity to lead evidence if the Tribunal was of the view that there was no sufficient evidence to come to the conclusion of the guilt of the workman and that without availment of such opportunity, the order was vitiated, it has to be observed that the employer had filed Pursis Exhibit 26 in which it was declared by the appellant- employer that it did not want to lead any further evidence. It was thereafter the Industrial Tribunal proceeded further to consider the case. Once the employer took a stand that he was not willing to lead any evidence, he cannot turn around to call in question the order of the Tribunal raising the contention that since the further opportunity to lead evidence was not afforded by the Tribunal, the order refusing permission was vitiated. Having once given up the right and having declared that no evidence was to be led, the subsequent approbating and repprobating by the employer cannot be permitted in law.

6. Learned Single Judge taking total overview of the facts and referring to several decisions of the Supreme Court and the High Court on the scope of powers of the Industrial Tribunal while considering the question of grant for refusal or approval or permission, rightly noticed the principles as under, (Para 6.16)

"Three important and vital principles which have been discussed at length herein above

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were necessary for the Tribunal to examine whether (i) there existed any prima facie case,

(ii) whether all the requirements of the principles of natural justice had been fulfilled while conducting departmental proceedings and

(iii) whether there was any victimisation and whether there was unfair labour practice and therefore there was no requirement to grant approval. "

7. By several decisions, the nature of powers to be exercised by the Tribunal for giving approval of dismissal or for giving permission Order 33, as the case may be, are well settled. In P.H.Kalyani Vs. M/S. Air France Culcutta [AIR 1963 SC 1756], the Bench of the Supreme Court held that it is within the realm of powers of the Industrial Tribunal while considering the question of approval of dismissal to see that the employer has come to bona fide conclusion about the guilt of the employee and that there was no unfair labour practice and victimization.

"If the inquiry is not defective, the Labour Court has only to see whether there was a prima facie case for dismissal, and whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty i. e. there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the

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order was made. "

7.1 In Lalla Ram (supra), the Supreme Court after considering the decision on point observed that the jurisdiction of the Tribunal is confined to whether the case for dismissal based on legal evidence is made out before the domestic tribunal, whether the employer had given the bona fide conclusion about the guilt of the employee and also that the decision did not amount to unfair labour practice. It was also observed further that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment.

7.2 In Central Bank of India Limited Vs. Shri Prakash Chand Jain, [AIR 1969 SC 983], it was observed that perversity in findings is yet another yardstick to be applied in considering the approval, "The test of perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all ... ... A finding by a domestic tribunal like an Enquiry Officer can be held to be perverse in those cases also where the finding arrived at by the domestic tribunal is one at which no reasonable person could have arrived on the material before it."

7.3 This Court in Ahmedabad Municipal Transport Service Vs. Budhabhai Atmaram, [2008 (2) GLR 1341] reiterated the principles to observe that the provisions of Section 33(2)(b)

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and the conditions attached in relation to powers in grant of approval or refusal, the same are mandatory.

7.4 Yet another decision of Madras High Court in Pandian Roadways Corporation Limited Vs. The Presiding Officer, Industrial Tribunal, [2005 (II) LLJ 38] has stated the principles.

"The Tribunal thus necessarily has to go to into the questions: (i) whether the order of dismissal or discharge was bona fide; (ii) whether it was by way of victimization and unfair labour practice and (iii) whether the conditions contained in the proviso were complied with or not? In the instant case, the' Industrial Tribunal while going into the above question, came to the conclusion that the order of termination for which approval was sought by the employer lacks legal evidence, suffers perversity, also violates principles of natural justice and thereby attracts the victimisation and unfair labour practice, as rightly observed by the learned single Judge."

7.5 Tribunal will refuse approval of permission, as the case may be to the employer if the employer is not bona fide in coming to conclusion about the guilt of the workman. Secondly, if the unfair labour practice is employed, approval will not be granted. If on the facts it is found that workman is sought to be victimized, it will be a ground not to refuse the approval. The approval of or permission will also not be granted if the findings are perverse. The perversity of findings in the domestic inquiry is equated with state of 'no evidence'. Yet de hors the evidence, the guilt was recorded and the punishment of dismissal was imposed. Though the adequacy of punishment cannot be the realm of consideration, shockingly disproportionate or unconscionable punishment is also a criteria.

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8. The principles which governed the scope of powers in granting the approval under Section 33(2)(b), would also govern the question of giving permission under Section 33(3) of the Act.

8.1 Learned Single Judge observed that on the aspect of victimization of the workman, the facts leaned towards the workman and the Tribunal has accordingly concluded. Referring to the inquiry report against the workman on the findings recorded in respect of the charges levelled against the workman, learned Single Judge held thus, (Para 6.17)

"....the main charge which was levelled against Respondent No.1 had not been proved at all from the evidence that had been adduced before the Inquiry Officer and the question of tampering of the Punch Clock in presence of the so many security personnels and that too in the short period within which it is said to have been done could be phenomenal, however which is virtually impossible. On noticing that the purpose for conducting the inquiry and also awarding the punishment of the harsh kind was on the account of the fact that the workman was necessarily a protected workman who was active in the activities of the Union, it rightly arrived at conclusion that the Management was not permitted to victimise the leader nor could be allowed to make mountain out of a mole.

Therefore the Tribunal deemed it fit not to grant approval."

9. Keeping in view the law applicable, reverting to the facts and the findings of the Tribunal about the misconduct of the workman and the punishment imposed, the charge was that the workman on particular date went out of premises leaving his duties by punching the punch-card, did not return for the day on duty and tampered the punch-card by mentioning the duty hours. For such misconduct, the penalty of dismissal was imposed. The workman was suspended while issuing the show-

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cause notice itself and his salary was also cut for the period of absence. The Tribunal considered the circumstances to come to the conclusion that the entire charge was not believable.

9.1 It was highlighted that punching machine was used to be kept under lock and there was nothing to suggest that it was not kept in lock. It was not possible to assume that the workman could tamper the punching machine within short time. The punching machine was kept the security person and the presence of other employees and workman used to be nearby. The allegation about tampering of punch machine was not believable, the Tribunal recorded. For the part of the allegation about day's absence, the employer had already deducted the salary of the respondent even before conducting the inquiry.

9.2 The Tribunal recorded a categorical findings on the basis of the facts and circumstances emerging from the inquiry report that there was absence of evidence on the basis of which the charge could have been proved. Tribunal concluded that in any way the punishment of dismissal was highly disproportionate, consequentially refusing the permission.

10. We are in complete agreement with the reasons given by learned Single Judge in dismissing the petition holding that permission could not have been granted. The facts and circumstances highlighted above, the nature of charge, the kind of evidence relied on to prove and the punishment of dismissal imposed, smacked victimization, suggested unfair practice and showed that the employer acted far from bona fide, and imposed the shockingly disproportionate punishment. The permission under Section 33(3) of the Industrial Disputes Act, 1947 was rightly refused by the Tribunal.

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11. For the aforesaid reasons and discussion, we do not find any good ground to interfere with the judgment and order of learned Single Judge, which is passed by commanding the total facts and pervasively considering the proposition of law in relation to the controversy. The present Letters Patent Appeal is dismissed. In view of disposal of the main appeal, the Civil Application will not survive. Accordingly, it is disposed of.

(N.V.ANJARIA, J)

(SANDEEP N. BHATT,J)

FURTHER ORDER

At this stage, learned advocate submits that interim relief which was granted by order dated 27.11.2017 may be continued for some time.

We do not see any good reason to accept the request in view of what is observed and held in the above judgment and order dismissing the Letters Patent Appeal. Resultantly, the request is rejected.

(N.V.ANJARIA, J)

(SANDEEP N. BHATT,J) Manshi