Gujarat High Court
Natubhai Jogibhai Patel vs The Labour Court on 5 February, 2024
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6015 of 2020
==========================================================
NATUBHAI JOGIBHAI PATEL
Versus
THE LABOUR COURT & 1 other(s)
==========================================================
Appearance:
MR. AMIT R JOSHI(6682) for the Petitioner(s) No. 1
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date: 05/02/2024
ORAL ORDER
1. Workman has filed this petition challenging the award
dated 17.07.2019 of Labour Court, Surat in Reference (LCS)
No. 124 of 2007, wherein reference filed by the petitioner -
workman challenging his dismissal and also seeking
reinstatement with continuity of service has been rejected.
2. This Court vide order dated 11.03.2020 had issued notice.
Considering the issue involved and with the consent of learned
advocates for the respective parties, the matter is taken up for
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
final disposal.
3. The facts in brief as narrated in the petition are as
under: -
The petitioner for the misconduct was charge sheeted on
16.09.2004. The Departmental Inquiry was thereafter
undertaken in accordance with law and by an order dated
11.03.2005, the petitioner was dismissed from service. The
petitioner challenged the said dismissal, by filing Reference
(LCS) No. 124 of 2007. In reference proceedings, the petitioner
also challenged the inquiry proceedings initiated against him.
However, by order below Exh. 22 the validity of inquiry was
upheld. In the order below Exh.22, the Labour Court has held
that the inquiry initiated was just and proper. The above facts
have been recorded in the impugned order dated 17.07.2019.
In the reference registered as Reference (LCS) No. 124 of 2007,
the Labour Court rejected the reference of the petitioner -
workman seeking reinstatement with continuity of service and
upheld the order of dismissal, aggrieved by which present
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
petition is filed.
4. Heard learned advocate Mr. Amit Joshi for the petitioner
- workman and learned advocate Mr. Hamesh Naidu for the
respondent No. 2 - Company.
5. Learned advocate for the petitioner submitted that the
award of Labour Court is erroneous because the petitioner had
worked with the respondent -company, for past 19 years and
abruptly his service earlier was terminated on 06.12.1999.
Once again, the petitioner was called for work in the year
2004 and he started working with the Company. Thereafter,
since the respondent started giving 60% salary instead of
100%, some scuffle occurred with the management and on
account of some incident, the petitioner was served with
memorandum dated 16.09.2004. The Departmental Inquiry was
thereafter initiated and upon completion of the same, Inquiry
Report dated 01.03.2005 was submitted holding the charges
against the petitioner as proved. It is case of the petitioner
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
that the inquiry was conducted ex-parte. Subsequent to that
the final show-cause notice was served to the petitioner on
02.03.2005. The final show-cause notice was served to the
petitioner along with 11 other workmen (co-workers).
Explanation/Reply was given to the final show-cause notice by
the petitioner. In reply to the final show-cause notice, a
request was made to hold independent inquiry. Despite that an
order of dismissal dated 11.03.2005, was passed which is
erroneous.
5.1 Learned advocate for the petitioner submitted that the
petitioner was not the single employee to commit the said
misconduct but there were 11 other co-workmen who were
charge sheeted along with him for the very misconduct.
However, out of the 11 employees 2 have been reinstated in
service. Reinstatement was done taking cognizance of the
apology tendered by them. However, the apology tendered by
the petitioner in his reply to the final show-cause notice was
not considered and therefore, it is a clear case of
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
discrimination which the Labour Court had ignored. Further,
in all 11 cases, the charges are of same nature and therefore
different penalty orders, despite having identical charges is an
illegality committed by the respondent. Referring to the
charges leveled against others, he submitted that undisputedly
the charges were same. However, vide orders dated 12.08.2005
and 30.05.2005 one Shri K. S. Patel and Shri Anil Patel have
been reinstated in service on certain conditions referred in the
said letter. Therefore, similar treatment may be extended in
case of present petitioner and the petitioner may be permitted
to resume duties on same terms and conditions as done in the
case of other two employees vide letters of reinstatement dated
30.05.2005 and 12.08.2005.
5.2 In respect of the apology tendered by two employees who
have been reinstated on certain conditions, learned advocate
submitted that the petitioner was not aware as his case was
represented through Union. Therefore, discrimination meted out
to the present petitioner is unlawful. On the aspect of
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
discrimination learned advocate for the petitioner relied upon
the following decisions: -
(1) In the case of R. M. Parmar V/s Gujarat Electricity Board
reported in 1982 GLH 254
(2) Devgiri Textile Mills Ltd. V/s. Anil Ambadasrao reported
in (2003) IIILLJ 537 Bom.
(3) K.V.S. Ram Jawale and Ors V/s. Banglore Metropolitan
Transport Corporation reported in AIR 2015 Supreme Court
998.
5.3 Learned advocate also submitted that the petitioner was
not the only workman who committed misconduct of
indiscipline. There was other 11 workmen and therefore the
punishment imposed of dismissal is disproportionate to his
misconduct and the same deserves to be quashed and set aside.
6. On the other hand, learned advocate Mr. Hamesh Naidu
for the respondent submitted that the inquiry was proceeded in
accordance with law and after following principles of natural
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
justice. After inquiry proceedings, the report was filed by the
Inquiry Officer holding the charges as proved. The said inquiry
proceedings were challenged wherein the Labour Court by an
order below Exh. 22, upheld the inquiry proceedings.
Therefore, at this stage, the inquiry cannot be challenged by
the petitioner. Once, the inquiry is held to be just and proper,
the jurisdiction of the Labour Court is very limited in the
proceedings under Section 10A of the Industrial Disputes Act,
1947 ('the Act' for short). The Labour Court can only examine
the adequacy of quantum of punishment to the misconduct
which were proved. The Labour Court thus has rightly
observed that the misconduct committed by the workman was
grave in order to maintain the discipline in the Company. The
misconduct which was held to be proved in the inquiry is of
'Gherao' and closing the cabin of the Manager by confining
him for more than 5 hours and thereafter, rescuing him after
indulgence of police cannot be tolerated.
6.1 In support, learned advocate for the respondent relied
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
upon decision in the case of Mahindra and Mahindra Limited
V/s. N. B. Naravade reported in 2005 (3) SCC 134. Referring to
this decision, learned advocate submitted that the powers of
the Labour Court under section 11A of the Act are limited and
are to be used sparingly only on the existence of certain
factors like punishment being disproportion to the gravity of
misconduct so as to disturb the conscious of the Court. In
other words, once the misconduct is proved the scope of
judicial review in relation to penalty is limited. Most
importantly, from the year 2008, the Company had suspended
its operations and declared as sick company. The operations
are suspended even till date. Therefore, the relief prayed of
reinstatement by quashing the order of dismissal is not
possible.
6.2 In relation to the contention of discrimination, learned
advocate Mr. Naidu for the respondent submitted that factually
the chargesheet was given to the employee on 16.09.2004. The
notice about initiation of inquiry proceedings was sent on
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
22.09.2004. The third notice was issued on 02.09.2004
informing about the date of hearing. The inquiry was
thereafter undertaken and order of dismissal was passed on
11.03.2005. In the case of 2 employees who have been
reinstated after dismissal dated 11.03.2005, they approached
the management of the Company on 27.05.2005 and
10.08.2005 and accordingly the order of reinstatement dated
12.08.2005 in the case of Shri K. S. Patel (Page No. 102) and
order dated 30.02.2005 in the case of Shri Anil Patel (Page No.
111) was passed. Thus, the apology expressing the regret for
the incident was immediate. Moreover, the relief prayed that
equal treatment is to be given to the present petitioner is also
not tenable since the present petitioner had attended the age
of superannuation and more particularly when no ground is
made out for substitution of the punishment when the charges
were held to be proved. In support of his submissions that
when the charges are held to be proved the scope of judicial
review in the matter of punishment is minimal, learned
advocate relied upon the decision of Indian Oil Corporation
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
Limited V/s. Ashok kumar Arora reported in 1997 (3) SCC 72.
Learned advocate for the respondent also relied upon the
decision of Hon'ble Apex Court in the case of Mahindra and
Mahindra Limited [supra] with the submission that if the
charges proved against the delinquent are of grave nature, the
punishment imposed on co-worker is not ground to be
interfered with. He submitted that once instance of any
leniency would not make it a precedent for future cases to
come.
6.3 With revisitation of facts, learned advocate for the
respondent submitted that in the cross-examination, the
workman had accepted that even after having come to know
about the apology tendered by co-workman, the petitioner had
not tendered his apology and therefore not tendering apology
at the relevant time is a conscious decision of the petitioner
and therefore the ground of discrimination would not be
available.
6.4 Learned advocate for the respondent on the aspect of
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
grave nature of misconduct and the punishment imposed has
relied upon the decision in the case of Bharat Forge Company
Limited V/s Uttam Manohar Nakate reported in 2005 (2) SCC
489. He thus submitted that in view of above, no interference
is called for and the petition deserves to be dismissed.
7. Considered the submissions and the decisions relied upon.
Revisitation of the facts reveal that for the misconduct of
16.09.2004 the petitioner was charge sheeted and inquiry was
initiated. Upon conclusion of inquiry, the inquiry report dated
01.03.2005 was submitted. Pursuant to the submission of the
Inquiry Report by the Inquiry Officer holding the charges as
proved, a final show-cause notice was served to the petitioner
on 02.03.2005 along with other 11 workmen. It is true that in
reply to the final show-cause notice, request was made of de
novo inquiry. However, dismissal order dated 11.03.2005 was
passed and along with the said order, one month's notice pay
was paid through Account Payee cheque.
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
8. Admittedly, the inquiry was subject matter of challenge
in the pending reference proceedings before the Labour Court
and the Labour Court by order below Exh.22, had held the
inquiry proceedings as just and proper. The Labour Court in
the award at Para: 5 held that the inquiry was conducted after
taking into consideration the evidence on record and therefore
the same was just and proper. Therefore, the contention of
learned advocate for the respondent that when the charges
leveled against the delinquent are held to be proved as held by
the Hon'ble Supreme Court in the case of Mahindra &
Mahindra [supra] the powers of judicial review in relation to
quantum of punishment is minimal. The Hon'ble Supreme
Court in the decision of Mahindra & Mahindra [supra] has held
as under: -
"18. Relying on the said observation the
learned counsel submitted that the same
applied with full force to the issue involved
in this case and submitted that even though
there was an apology in the case of Orissa
Cement Ltd. (supra), still this Court came to
the conclusion that a punishment of
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
dismissal was justified for using a filthy and
abusive language against a superior officer.
The learned counsel also relied another
judgment of this Court in the case of New
Shorrock Mills Vs. Maheshbhai T. Rao [ 1996
(6) SCC 590] wherein this Court again
considering the case of workman abusing his
superior and threatening him held :
"The labour court, in the present case,
having come to the conclusion that the
finding of the departmental enquiry was
legal and proper, the order of discharge was
not by way of victimisation and that the
respondent workman had seriously
misbehaved and was thus guilty of
misconduct, ought not to have interfered
with the punishment which was awarded, in
the manner it did. This is not a case where
the court could come to the conclusion that
the punishment awarded was shockingly
disproportionate to the employee's conduct
and his past record."
8.1 Further, this Court also cannot lose sight of the fact that,
the charges were of acting in a mob by creating Gherao to the
office of Managing Director and Manager of Company and by
confining the Manager in his cabin for more than 5 to 6 hours
and he was released after getting help from the police
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
authorities. The said facts were not denied by the petitioner.
On the contrary, in the cross-examination, it was admitted that
he was responsible for such misconduct. In the reply to the
second show-cause notice these facts were again admitted by
the petitioner - workman. Therefore, the contention that,
when the charges are of grave nature, the punishment imposed
on the delinquent is not to be interfered with merits
acceptance.
9. In the decision of Hon'ble Supreme Court in the case of
Bharat Forge limited [supra] it is held as under: -
"28. In Bhagubhai Balubhai Patel (supra),
this Court observed :
"In such a case the employee, found
guilty, cannot be equated with a victim
or a scapegoat and the plea of
victimization as a defence will fall flat.
This is why once, in the opinion of the
tribunal a gross misconduct is
established, as required, on legal
evidence either in a fairly conducted
domestic enquiry or before the tribunal
on merits, the plea of victimization will
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
not carry the case of the employee any
further. A proved misconduct is
antithesis of victimization as understood
in industrial relations. This is not to say
that the tribunal has no jurisdiction to
interfere with an order of dismissal on
proof of victimization."
31. If the punishment is harsh, albeit a
lesser punishment may be imposed, but such
an order cannot be passed on an irrational
or extraneous factor and certainly not on a
compassionate ground."
10. On the aspect of discrimination, it is noticed that heavy
reliance is placed on the order of reinstatement dated
12.08.2005 in the case of Shri K. S. Patel (Page No. 102) and
order dated 30.02.2005 in the case of Shri Anil Patel (Page No.
111), however, in the opinion of this Court the same of no
consequence because in both the cases, the apology letters
were tendered on 10.08.2005 and 27.05.2005. In the present
case, the petitioner has admitted in the cross-examination
during reference proceedings that he had not tendered his
apology till date. Moreover, the charges leveled are of grave
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
nature which would not warrant any interference by this court.
11. Even if it is presumed that there may be certain
grievance of the workman against the Company and the
Management, however, there are ways and means of raising
the grievance. It was recorded by the Labour Court that they
were not permitted to step out of their glass cabins for number
of hours and they were confined without fans and air
condition. This definitely amounts to serious indiscipline and
gross misconduct meted out by the workman and therefore, in
the opinion of this Court the finding recorded by the Labour
Court that considering the gravity of misconduct, the
punishment awarded is not disproportionate and cannot be
faulted with. This Court is also of the opinion that this is not
the case where punishment imposed is disproportionate to the
misconduct committed by the petitioner and therefore no case
is made out for interfering with the punishment imposed by
the authority.
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
12. The Hon'ble Supreme Court in the case of Indian Oil
Corporation Limited [supra] in relation to quantum of
punishment and discriminatory treatment as contended by the
petitioner has held that it is the disciplinary authority to
decide the quantum of punishment/penalty to the respondent
differently than the other employees which would depend upon
facts and circumstances of each case. Reverting to facts of this
case, the reliance placed on the reinstatement orders dated
12.08.2005, in the case of Shri K. S. Patel (Page No. 102) and
order dated 30.02.2005 in the case of Shri Anil Patel (Page No.
111) in the opinion of this Court would not be applicable as
the reinstatement was done considering the different facts as
compared to the facts of the present case.
13. In the present case, considering the involvement of the
petitioner in the entire episode, his admission that he had not
tendered his apology till date despite having knowledge of
apology being tendered by other employees with whom he is
making comparison no case is made out on the ground of
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
discrimination.
14. In view of above and in view of misconduct proved by
the disciplinary authority confirmed by the Labour Court no
case is made out to interfere and therefore this petition does
not require any interference.
15. At this stage, it would be pertinent to take note of one
more fact that at present as submitted by learned advocate for
the respondent that the Company is sick and has suspended its
operation even till date. Therefore, the relief prayed of
reinstatement is not even possible in the facts of the present
case.
16. Hence, in view of above, the present petition fails and
the same is dismissed with no order as to costs.
17. At this stage, learned advocate for the petitioner
submitted that considering the number of years of service by
the petitioner, he would be entitled for the Provident Fund
NEUTRAL CITATION
C/SCA/6015/2020 ORDER DATED: 05/02/2024
undefined
and Gratuity under the provisions of relevant Act. Learned
advocate for the respondent fairly submitted that if the
petitioner is entitled for the amount of provident fund and
gratuity and if not paid, the same shall be paid in accordance
with law.
(MAUNA M. BHATT,J)
SHRIJIT PILLAI
