Gujarat High Court

Tata Chemicals Ltd vs Soma Bhima on 3 March, 2023

Bench: Biren Vaishnav

    C/SCA/17439/2006                             JUDGMENT DATED: 03/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 17439 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                          TATA CHEMICALS LTD.
                                 Versus
                         SOMA BHIMA & 1 other(s)
==========================================================
Appearance:
MR.K.M.PATEL, LD. SENIOR ADVOCATE with MR.VARUN K.PATEL(3802)
for the Petitioner(s) No. 1
MR HASIT H JOSHI(2480) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 03/03/2023

                            ORAL JUDGMENT

1. By way of this Petition under Article 226 and 227

of the Constitution of India the Petitioner has

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challenged the Award of the Labour Court

Jamnagar dated 6.1.2006 passed in Reference

(LCJ) No.470 of 1991 granting reinstatement

with 50% back-wages to the Respondent

Workman.

FACTS:

2. The Petitioner is a Company incorporated under

the Companies Act, 1956 engaged in the

manufacture of soda ash, salt and other

chemicals. The Respondent workman was

working in the Foundary Department of the

Factory of the petitioner.

3. On 18.4.1991 at around 7.15 pm the workman

alongwith 2 to 4 other workmen assaulted one

Punja Naran with a knife causing him grievous

injury. After recording preliminary statements of

various persons a charge sheet was issued to the

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respondent workman on 23.4.1991.

4. Pursuant to the Charge Sheet a departmental

inquiry was conducted. In the Departmental

Inquiry one D.S.Bath, Security Officer, Shri

Babulal Chhotalal, Warden and Shri Nagajan

Sajan were examined as witnesses and after

conclusion of the Inquiry a report was submitted

on 26.4.1991 in which charges levelled against

the respondent were held to be proved. The

Respondent was dismissed from service by an

order dated 29.4.1991.

5. On his dismissal from service the workman

challenged the same by raising an industrial

dispute which was numbered as stated herein

above.

6. The Labour Court by the Award under

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challenged directed the Petitioner Company to

reinstate the Respondent workman with 50%

back-wages. The Respondent was acquitted in

the Criminal Case filed against him and the

competent court recorded the acquittal in the

year 2000 i.e. nine years after the order of

dismissal was passed.

7. Mr.K.M.Patel learned Senior Advocate appearing

with Mr.Varun Patel learned Advocate for the

Petitioner made the following submissions.

8. Mr.Patel, taking the Court through the Inquiry

Report and the evidence of the witnesses,namely

Shri Bath, the Security Office, Shri Bath,

Nagajan Sajan and Shri Shukla would submit

that all the three witnesses had clearly deposed

on the incident in question in detail recording

the fact that the Respondent had assaulted Punja

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Naran who was driving a Luna with a pillion

Rider Soma Kana.

9. Taking the Court to the findings of the Labour

Court he would submit that the finding recorded

by the Labour Court that there were no eye

witnesses and that the enquiry was bad as the

victim Punja Naran and Soma Kana were not

recorded was a finding that was perverse.

10. Mr.Patel learned Senior Advocate would submit

that the Labour Court had by way of a detailed

order recorded on 30.5.2005 had held that the

Inquiry was legal and proper. That order had

become final and therefore once having held that

the inquiry was proper it was not proper for the

Labour Court to go into the questions of

propriety, justness and legality of the findings of

the Inquiry Officer.

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11. Mr.K.M.Patel would further submit that the

Labour Court overlooked the fact that it could

not have gone into the question of sufficiency

and adequacy of evidence when the Inquiry

Officer based on the evidence on record had held

that the charge was proved. There was clear

evidence in terms of the testimonies of the three

witnesses Shri Bath, Naga Sajan and Shri Shukla

and therefore the Labour Court could not have

held that as the victim Punja Naran and Soma

Khima were not examined the proceedings were

vitiated, on the ground that important witnesses

were not examined.

12. Mr.Patel would submit that the Labour Court

exceeded its jurisdiction in re-appreciating

evidence on record once the inquiry was held to

be just and proper. It was not open for the

Labour Court to re-appreciate the findings as if it

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was sitting in appeal over the findings of the

Inquiry Officer.

13. Shri Patel would submit that the Labour Court

committed an error in considering the record of

the Criminal Case and the evidences of the

statements recorded on such case when the

purpose and the object of the criminal case and

the departmental proceedings are different and

so also the standard of proof required in both the

proceedings are different. He would submit that

in the criminal case the charge is required to be

proved beyond reasonable doubt whereas in the

departmental proceedings strict rules of

evidence do not apply. Any evidence including

hearsay evidence having probative value is

sufficient to uphold the order of penalty of

dismissal.

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14. The Labour Court has committed an error that

the criminal court had given an honourable

acquittal whereas it was an acquittal by reason

of benefit of doubt. It was not open for the labour

Court to consider the evidence recorded in the

criminal trial and the judgement and order

passed by the Judicial Magistrate and rely upon

the same to exonerate the respondent workman.

15. Mr Patel would submit that the entire case as set

out in the Statement of Claim filed by the

Respondent proceeded on the basis of illegal

retrenchment. There was inconsistency in the

Statement of Claim and the evidence and

therefore the Labour Court ought to have

rejected the Reference.

16. Mr.Patel would submit that the charge was that

of assaulting a co-worker at the Factory Gate and

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the charge being serious no other penalty except

that of dismissal could have been passed and the

Labour Court exceeded its jurisdiction in

touching the aspect of legality and propriety of

inquiry.

17. Looking to the seriousness of the charge the

Labour Court could not have awarded

reinstatement with 50% back-wages.

18. In support of his submissions Mr.Patel would cite

the following decisions.

I. U.P.State Road Transport Corporation

versus Vinod Kumar reported in (2008) 1

SCC 115 to support his submission that once

the Inquiry is held to be legal and proper the

Labour Court cannot interfere.







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    II.     Management of W.S.Insulator of India

    Ltd.           Madras   v.    Mohamed           Moosa               and

Another reported in 1979 Lab. I. C. 102 to

support his submission that merely on the finding

recorded by the Criminal Court it is not open for

the Labour Court to set aside the order of

dismissal.

III. Management Of Bharat Heavy

Electricals Limited versus M.Mani reported

in (2018) 1 SCC 285 in support of his

submission that once the Labour Court having

held that the departmental proceedings were

legal and proper it could not have held that the

same was vitiated due to criminal court's order

which had acquitted the respondent.

IV. State of Haryana and Another v. Rattan

Singh reported in AIR 1977 SC 1512 for

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supporting his submission that merely because

the victims were not examined the departmental

proceeding could not have been held to be

vitiated.

19.Mr.Hasit Joshi learned Advocate for the

Respondent workman made the following

submissions supporting the Award of the Labour

Court.

20.That the incident had occurred outside the

factory premises and therefore it could be held

to be a misconduct during the course of

discharge of duties and therefore departmental

proceedings could be held against the

respondent.

21.He would submit that the Inquiry was held in hot

haste. The stage from issuing the Charge Sheet

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to the final report was just completed in 5 days

when the respondent had specifically pointed out

that he was unwell and hospitalized and

therefore the entire proceedings were vitiated,

biased and in violation of principles of natural

justice.

22.Mr Joshi reading the deposition of the victim

Punja Naran recorded at Exh.16 in the criminal

case would submit that reading his statement

would indicate that on material points the

complainant had remained silent before the

criminal court which led to the acquittal of the

respondent and therefore the Labour Court

committed no error in awarding reinstatement

with back wages. He would submit that now the

workman had attained the age of superannuation

and therefore there was no reason to interfere

with the award.

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23.Mr.Joshi would further submit that the criminal

court on examination of evidence including that

of the Medical Officer Dr.Mehta had considered

the contradictions and therefore the acquittal

recorded by the Trial Court rightly weighed with

the Labour Court in awarding reinstatement with

50% back-wages.

24.Mr.Joshi would submit that the departmental

proceedings and the criminal case was held on

the basis of the same set of evidences and

therefore the respondent was harassed and once

having earned an acquittal on the same set of

facts and evidences the dismissal was rightly set

aside by the Labour Court. In support of this

submission Mr.Joshi relied on the decision of the

Supreme Court in the case of G.M.Tank Versus

State of Gujarat And Another reported in

(2006) 2 GLH 533.

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25.Mr.Joshi also relied on the decision in the case of

Union Of India and Others versus Alok

Kumar reported in (2010) 5 SCC 349. He

relied on Paras 83 and 84 of the decision that

there was prejudice to the Respondent as the

departmental proceedings were held in hot haste

and therefore the award of the Labour Court

could not be faulted.

CONCLUSION

26.Having considered the submissions made by the

learned advocates for the respective parties,

recapitulation of facts indicate thus:

27.The Respondent was working as in the Foundry

Department of the Petitioner Company.

28.Charge Sheet dated 23.4.1991 indicates that the

imputation against the workman was that on

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18.4.1991 at around 7:15 PM in the evening at

the Factory Gates the workman together with

one other intercepted the Luna of Punja Naran

who was driving it and at the pillion was one

Soma Kana and after picking up a fight, the

Respondent workman assaulted Punja Naran

with a knife causing injuries on his body.

29.An Inquiry Officer named Shri Kavatra was

appointed to conduct an Inquiry on 24.4.1991.

The workman was called during the Inquiry but

he feigned illness and did not participate in the

Inquiry. It was his case that he had chest pain

and needed treatment. That when a inquiry was

made at the Company's Mithapur hospital he

wasn't found there.

30.Statements of three witnesses who were

examined were recorded i.e one Mr.D.S.Bath,

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Babulal Shukla and the Watchman Nagajan

Sajan. Both, Shri Shukla and Nagajan Sajan were

eye witnesses to the incident. From the

statements of Nagajan Sajan it emerges that he

told Soma Bhima not to stand near the Gate. In

sometime Punja Naran and Soma Kana arrived

on a Luna and the Respondent started stabbing

Punja Naran with a knife. Witnessing this

incident the watchman immediately made a call

to the Warden Shri Shukla who arrived on the

scene. They separated the fighting workers and

saw Punja Naran was bleeding. He therefore

arranged for an auto-rickshaw for Punja Naran

to be carried to the Hospital. This incident was

narrated by these two eye witnesses to Shri

Bath, the Chief Security Officer.

31.Perusal of the Award of the Labour Court

indicates that it discusses this evidence of these

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witnesses and then discards the statement of

Naga Sajan though holding that he was an eye

witness on the ground that the victim Punja

Naran and the pillion rider Soma Kana have not

been examined and therefore the Inquiry Officer

could not hold the charge to be proved. In the

preceding paras of the Award the Labour Court

opines that though the legality of the Inquiry

Proceedings are not disputed however it (Labour

Court) can look into the evidence and assess it as

to whether the evidence is credible to hold the

charge as proved.

32.It is an admitted fact and the order dated

30.05.2005 below Exhibit 74 of the Labour Court

is on record whereby the Labour Court after an

elaborate discussion had held that there was no

illegality or procedural irregularity in the holding

of the departmental proceedings. Even the

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workman had admitted that there was no

procedural or other illegality and that the inquiry

was held in consonance with the principles of

natural justice. That order was even accepted by

the respondent workman.

33.Therefore when the Inquiry was held to be just

and proper based on the evidence recorded by it

the Labour Court could not have gone into the

question touching the aspect of legality and

propriety of the Inquiry. It was not open for the

Labour Court to sit in appeal and re-appreciate

the evidence on record and arrive at its own

findings once the inquiry was held to be valid

and legal.

34.In the case of Vinod Kumar (supra) the

Supreme Court in Para 10 of the decision held as

under:






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              "10.    As   stated     in  the   preceding

paragraphs, the respondent had confined his case only to the conclusions reached by the Enquiry Officer as well as the quantum of punishment. Therefore, since the respondent had not challenged the correctness, legality or validity of the enquiry conducted, it was not open to the Labour Court to go into the findings recorded by the Enquiry Officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the Courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. Without burdening the judgment with all the judgments of this Court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh, 2006 (6) SCC 187, wherein this Court, after taking into account the earlier decisions, held in para 18 as under:-

"In the instant case, the mis-

appropriation of the funds by the delinquent employee was only

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Rs.360.95. This Court has considered the punishment that may be awarded to the delinquent employees who mis-

appropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money mis-

appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka State Road Transport Corporation v. B.S. Hullikatti (2001) 2 SCC 574 was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a mis- conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is

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wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum.

[Underlining is ours]"

35.What is evident on reading the proposition of law

set out by the Supreme Court is that once the

correctness, legality or validity of the inquiry

conducted has not been challenged it was not

open for the Labour Court to go into the findings

recorded by the Inquiry Officer regarding the

misconduct by the respondent.

36.The award and the findings of the Labour Court

getting into re-appreciating the evidence

therefore is in excess of the jurisdiction that is

vested in the Labour Court.

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37.Coming to the second limb of the same question.

When the Labour Court had no jurisdiction to re-

appreciate the evidence to arrive at a different

finding then the one arrived at by the Inquiry

Officer, it could not discard the evidence of the

eye witness i.e. Nagajan Sajan on the ground

that the victims, Punja Naran and Soma Kana

were not examined.

38.In the case of Rattan Singh (supra) the

Supreme Court has held that it is well settled

that in a domestic inquiry strict rules of evidence

are not applicable. All materials which are

logically probative for a prudent man are

permissible. There is no allergy to hearsay

evidence provided it has a reasonable nexus and

credibility.

39.Paragraphs 3 and 4 of the decision in the case of

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Rattan Singh (supra) reads as under:

"3. The principal ground on which the courts below have declared the termination bad is that none of the 11 passengers have been examined at the domestic enquiry. Secondly, it has been mentioned that there is a departmental instruction that checking inspectors should record the statements of passengers, which was not done in this case. The explanation of the State, as done out by the record, is that the inspector of the flying squad who had said that they had paid the fares but they declined to give such written statement. The third round which weighted with the courts was, perhaps, that the co-conductor in the bus had supported with this evidence, the guiltlessness of the respondent.

4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Ail materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The

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essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding,even though of a domestic tribunal, cannot be held good. However, the courts below mis-directed themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passengers from American jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a ending is certainty available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has elevance to the charge leveled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."

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40.In the facts of the present case the eye witnesses

Nagajan Sajan and Shukla had seen the incident.

They had shared this with the Senior Security

Officer Shri Bath. That piece of narrative of Shri

Bath was credible even if hearsay which

supplemented the version of the eyewitnesses.

The Labour Court had no business to get into the

chemistry of the inquiry and discard the

evidence on the ground that the victims were not

examined. This certainly was overstepping of

the limits and therefore was a perverse finding of

the Labour Court.

41.While holding that the charge against the

respondent has not been proved, the Labour

Court also discussed the evidence of the criminal

Court, which could not have. In exonerating the

Workman of the charge it went into the arena of

examining the veracity of the quality of evidence

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of a criminal court which had given the workman

the benefit of doubt when it could not have done

so especially when the standard of proof in both

jurisdictions were different.

42.As held in the case of Mohamed Moosa (supra)

by the Madras High Court merely because on the

basis of finding rendered by the criminal court

the Labour Court has set aside the dismissal

which are based on the findings rendered by the

departmental inquiry the Labour Court cannot do

so.

43.Paras 11 and 12 of the decision in the case of

Mohamed Moosa (supra) read as under:

"11. I am also of the view that the Tribunal is not right in entirely relying upon the criminal court's judgment and coming to the conclusion that the charge levelled against the petitioner has not been made out. The Tribunal having held that the domestic enquiry has been fair and proper, it has no

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jurisdiction to sit as if it were an appellate court. Only where it finds that the domestic enquiry has not been fair and proper and the concerned workman did not have an effective opportunity to defend himself, the Tribunal can interfere with the finding rendered at the domestic enquiry and consider the evidence on record with a view to find out whether the charge levelled against the petitioner has been made out. In this case, merely on the basis of the finding rendered by the criminal court, he has set aside the order of dismissal which is based on the finding rendered at the domestic enquiry. That is not possible for the second respondent to do.

12. As regards the third contention, it is seen that the proviso to S. 11-A of the Industrial Disputes Act, 1947, clearly states that the Labour Court cannot travel beyond the materials on record. The complainant of the petitioner in this case is that the Labour Court relied on the evidence in the criminal court which is not a material which was available at the domestic enquiry. Admittedly, the criminal court's judgement was rendered after the findings were given at the domestic enquiry and after the order of dismissal. Therefore, it is a new piece of evidence which has been taken into account by the Labour Court which is not permissible under the proviso to S. 11-A of the Act. For all these reasons, this writ petition is allowed and the order of the second respondent is set aside. There will be no order as to costs. Petition allowed."

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44.Even the Supreme Court in the case of M.Mani

(supra) in Para 17 to 19 read as under:

"17. To begin with, when we examine the legality and the correctness of the Awards of the Labour Court, we are of the considered opinion that the Labour Court, having held and indeed rightly that the departmental enquiry conducted by the appellant was legal and proper committed an error in holding that the departmental enquiry got vitiated due to criminal court's order which had acquitted the respondents from the charge of theft. In our opinion, there was no occasion for the Labour Court to examine this issue once the departmental enquiry was held legal and proper. The Labour Court, in our opinion, committed yet another error in holding that since the appellant failed to lead any evidence to prove the charge in Labour Court, therefore, the dismissal orders of respondents are liable to be set aside. This finding, in our opinion, was again not legally sustainable.

18. In our opinion, once the Labour Court upheld the departmental enquiry as being legal and proper then the only question that survived for consideration before the Labour Court was whether the punishment of "dismissal" imposed by the appellant to

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the respondents was legal and proper or it requires any interference in its quantum.

19. In other words, the Labour Court should have then confined its enquiry to examine only one limited question as to whether the punishment given to the respondents was, in any way, disproportionate to the gravity of the charge leveled against them and this, the Labour Court should have examined by taking recourse to the provisions of Section 11-A of the Industrial Dispute Act, 1947 (in short "the Act") and the law laid down by this Court in the case of The Workmen of M/ s Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors., (1973) 1 SCC 813. It was, however, not done thereby rendering the order of Labour Court legally unsustainable."

45.As argued by Shri Patel learned Senior Advocate

even if the Criminal Court had acquitted the

respondent it was not open for the Labour Court

to set aside the Order of dismissal.

46.Reliance placed on the decision in the case of

G.M.Tank (supra) by Shri Joshi in the facts of

the present case is misplaced. The respondent

was dismissed from service in the year 1991

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after a departmental inquiry. The acquittal of the

criminal court, giving the Respondent workman

the benefit of doubt was recorded 9 years after