Gujarat High Court
Amarsinhji Mills Prop. Kores (India) ... vs Amrut Nazabhai on 3 January, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16228 of 2019
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 16228 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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AMARSINHJI MILLS PROP. KORES (INDIA) LTD
Versus
AMRUT NAZABHAI
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Appearance:
MR PS GOGIA(2751) for the Petitioner(s) No. 1
AAKASH D MODI(7449) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 03/01/2024
CAV JUDGMENT
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1. Rule returnable forthwith. Mr. Aakash D. Modi, learned
advocate waives service of notice of rule on behalf of
respondent No.1.
2. This petition is filed challenging the order dated
13.01.2017 of Labour Court, Rajkot passed in BIR application
No.2 of 10 and order dated 20.04.2019 of Industrial Court,
Rajkot in Appeal IC No.1 of 17. The Labour Court, Rajkot vide
order dated 13.01.2017, in BIR Application No.2 of 10 directed
the petitioner to reinstate respondent - workman to his
original post with continuity of service and 50% back-wages.
Against the order dated 13.01.2017, an Appeal IC No.1 of 2017
was filed by the petitioner before the Industrial Court and the
Industrial Court, by order dated 20.04.2019 confirmed the
order of Labour Court and directed the petitioner to comply
with the directions within a period of two months from the
date of receipt of that order.
3. Facts in brief are as under:
(i) The petitioner is a company registered under the
Companies Act and covered by the provisions of
Bombay Industrial Relations Act. It was case of the
workman that he was working with petitioner
company since 1981 and was illegally terminated in
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the year 1989. For this alleged illegal termination, the
workman approached Labour Court Rajkot, under the
provisions of Bombay Industrial Relations Act ("BIR
Act" for short), registered as BIR Application No.45 of
1989. The Labour Court after hearing the parties,
partly allowed the application by order dated
31.03.1999, directing petitioner to reinstate workman
with continuity of service along with 50% back-wages.
(ii) Pursuant to the order dated 31.03.1999 of Labour
Court Rajkot, the workman was reinstated on
19.04.1999.
(iii) The petitioner company preferred Appeal against the
order of Labour Court in BIR Application No. 45 of
1989, before Industrial Court, and the Industrial Court,
Rajkot, rejected the application of the Company by
order dated 08.05.2006.
(iv) The order of Labour Court dated 31.03.1999 and
Industrial Court dated 08.05.2006 were challenged by
filing Special Civil Application No.4585 of 2007 before
this Court. This Court while partly allowing the
petition quashed the order for backwages.
(v) It is case of the petitioner-company that thereafter,
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on account of indiscipline, the workman was
terminated from service w.e.f. 04.05.2010. The
termination was done after giving one month's notice.
(vi) Respondent - workman challenged the termination by
BIR Application No.2 of 2010 before the Labour Court,
Rajkot. The said application was resisted by petitioner
by filing written statement. In the pending application
(BIR 2 of 2010), the petitioner made application for
conducting departmental inquiry (annexure E page 106)
which came to be rejected by order dated 03.11.2015
(annexure E page 108) under Exh.51.
(vii) Against the order dated 03.11.2015 (Exhi.51) rejecting
the application seeking departmental inquiry, revision
application was filed and the same was rejected by
Industrial Court by order dated 23.08.2016.
(viii) Thereafter, upon adjudication of BIR Application No.2
of 2010, an order dated 13.01.2017, was passed by the
Labour Court Rajkot, directing petitioner to reinstate
workman with 50% backwages.
(ix) The said order of Labour Court was challenged before
Industrial Court, Rajkot by filing Appeal IC No.1 of
2017 which was rejected by order dated 20.04.2019.
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Aggrieved by the order dated 13.01.2017 and
20.04.2019, the present petition is filed.
4. Heard Mr.P.S.Gogia, learned advocate for the petitioner
company and Mr. Aakash Modi, learned advocate for the
respondent workman.
5. Mr. Gogia, learned advocate for the petitioner company
submitted that the order passed by the Labour Court, Rajkot in
BIR Application No.2 of 2010 dated 13.01.2017 and the order
by Industrial Court, Rajkot in Appeal IC No.1 of 2017 dated
20.04.2019, are bad in law on the following grounds:
(i) The workman was a badli worker and was not in a
regular employment of the petitioner company. This fact is
evident from the cross examination by the workman dated
24.10.2013.
(ii) Further, the workman stopped coming to duty on his
own volition and was not terminated by the petitioner
company. Therefore, the application filed before the Labour
Court claiming reinstatement and backwages is without any
basis and the Labour Court erred in not considering the correct
facts.
(iii) The fact that the workman was badli worker, and
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stopped coming on his own volition, the Labour Court failed to
consider.
(iv) Though onus was on workman, he failed to produce any
evidence in support of his claim of regular workman as also of
his alleged illegal termination.
(v) Upon reinstatement pursuant to the order of this Court in
Special Civil Application No.4585 of 2007, the respondent
continued to carry indiscipline and unlawful activities during
duty hours and, therefore, he was terminated w.e.f. 04.05.2010
by giving one month's notice.
(vi) Learned advocate in support relied upon notice dated
04.05.2010 (Anneuxre D page 59) given before termination, to
submit that the termination was done after following the
provisions of the Industrial dispute Act ("the Act" for short)
and, therefore, there is no illegality.
(vii) Since, the termination was without departmental inquiry,
an application dated 18.08.2015 was filed seeking permission
for conducting departmental inquiry. The said permission was
sought so that the charges can be proved, therefore, denial of
the same by order dated 03.11.2015 is erroneous.
(viii) The revision application filed was also not considered.
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Learned Advocate, therefore, submitted that since the
departmental inquiry was not permitted to the petitioner
company, the orders may be quashed and set aside and the
petitioners may be permitted to conduct the inquiry in
accordance with the provisions of the Act. He therefore,
submitted to quash and set aside the order dated 3.11.2015,
rejecting permission to conduct inquiry and consequently the
orders dated 13.01.2017 and 20.04.2019.
5.1. Learned advocate Mr. Gogia, for the petitioner company
relied upon two decisions of Hon'ble Supreme Court:
(i) Karnataka State Road Transport Corporation vs. Smt.
Lakshmidevamma reported in 2001 LLR 329.
(ii) Bangalore Metropolitan Transport Corpn. vs.
T.V.Anandappa reported in 2009 LLR 659.
6. On the other hand, Mr. Modi, learned advocate for the
respondent workman made following submissions:
(i) The termination of the workman by order dated 07.09.1989
was without following the procedure as contemplated under
the provisions of the Act and, therefore, the Labour Court,
Rajkot, by order dated 31.03.1999 directed the petitioner to
reinstate the workman with continuity of service along with
50% backwages.
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(ii) Pursuant to the order dated 31.03.1999 by the Labour
Court, Rajkot, the workman was reinstated in service. Against
the order dated 31.03.1999, the petitioner-company preferred
appeal where the Industrial Court in the order dated
08.05.2006 while rejecting the appeal observed that it was a
case of victimization and of unfair labour practice. The
reinstatement was therefore rightly awarded.
(iii) Further, relying upon the termination order dated
04.05.2010, he submitted that the order of termination is
stigmatic and punitive in nature. It is not a simiplictor
termination and that too without initiating departmental
inquiry. Since, the termination was illegal, the T. Application
No.2 of 2010, filed before Labour Court, Rajkot, was rightly
allowed and confirmed in IC Appeal.
(iv) In the reply filed by petitioner Company in T application,
no mention was made with regard to the status of the
workman. At that stage, no permission was sought for
conducting inquiry to establish misconduct. Therefore, the
application below Exh.51 was rightly rejected by not
permitting the petitioner to lead evidence and to prove
misconduct. The application below Exh.51 was rightly rejected
after hearing both the parties.
(v) Even the revision application was rejected since the order
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of revision has not been challenged which had attained finality
and, therefore seeking permission at this stage in the present
petition, to permit the petitioner to conduct inquiry is beyond
the scope of the petition, which may not be considered. This
petition is preferred against the order of appeal dated
13.01.2017 in BIR (T) Application No.2 of 2010 and the appeal
confirming the order dated 13.01.2017, the workman was
permitted reinstatement with 50% backwages and continuity
and therefore, no interference is required.
6.1. Mr.Modi, learned advocate for the respondent - workman
relied upon the decisions in the case of Mannesmann Rexroth
(India) ltd. vs. Dipakbhai Manilal Gohel reported in 2023 JX
(Guj) 226 and K.V.S.Ram vs. Bangalore Metropolitan Transport
Corpn. reported in 2015 (12) SCC 39.
7. Considered the submissions. The fact stated herein above
are not in dispute. Upon revisitation of facts, it is noticed
that the respondent workman working with the petitioner
company on the post of Doffer in the Spinning Department
since 1981. He was terminated on 07.09.1989. Against the
termination dated 07.09.1989, the petitioner preferred BIR
Application No.45 of 1989. The Labour Court Rajkot, by order
dated 31.03.1999 directed to reinstate the workman with
continuity of service with 50% backwages. For the intervening
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period pursuant to order dated 31.03.1999, the workman was
reinstated. Against the order dated 31.03.1999, the petitioner
company preferred appeal before the Industrial Court registered
as Appeal (IC) No.1 of 1999, which was rejected by order
dated 08.05.2006. In the order dated 08.05.2006 of Industrial
Court it was held that the action of the petitioner terminating
the service of the workman is arbitrary, discriminatory and
contrary to the standing order. Against the order dated
31.03.1999, writ petition was filed registered as Special Civil
Application No.4585 of 2007 wherein this Court while partly
allowing the petition, the order of reinstatement with
continuity of service was confirmed and only 50% backwages
was quashed and set-aside. During pendency of the above
petition, the service of the workman was again terminated by
order dated 04.05.2010. Admittedly, the termination dated
04.05.2010 is punitive in nature and that too without initiating
any inquiry. In the opinion of this Court the application filed
seeking inquiry during pendency of Reference is of no
consequence since the termination was done without following
due procedure. It is true that in the reply filed in T.
Application No.2 of 2010, no averment was made with regard
to permission to establish misconduct. This being an
afterthought, the same has been rightly rejected in an
application below Exh.51. In the revision application
challenging the order rejecting permission for conducting
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inquiry proceedings, the Industrial Court has recorded that in
the written statement filed below Exh.11, no such request has
been made and, therefore, the revision was also rightly
rejected. It is also noticed that the order passed in Revision
Application No.1 of 2016 dated 23.08.2016 has not been
challenged by the petitioner company and, therefore it has
attained finality and, therefore, the prayer made to permit the
petitioner to conduct inquiry is beyond the scope of the
petition and the same cannot be allowed.
8. Moreover, from the order dated 13.01.2017, in BIR
Application No.2 of 2010 and from the order dated 20.04.2019
in Appeal (IC) No.1 of 2019, the Court below has rightly after
considering the evidences on record has held that the
termination was not simiplicitor but stigmatic and as per the
settled legal position, when the termination is stigmatic, the
same is to be done after following due procedure as
contemplated under the Act which has not been done in the
present case.
9. In the opinion of this Court, no interference is required
and, therefore, the petition filed by the present petitioner is
dismissed. The order passed by the Labour Court dated
13.01.2017 in BIR Application No.2 of 2010 directing the
petitioner to reinstate the workman to his original post with
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continuity of service along with 50% backwages for the
intervening period is confirmed.
10. With the above directions, the petition stands dismissed.
Rule is discharged.
11. Consequentially, Civil Application (for Direction) No.1 of
2023 also stands disposed of.
(MAUNA M. BHATT,J)
NAIR SMITA V.
