Chairman / Manager vs Kanubhai Mansukhbhai Macchi
2024 Latest Caselaw 92 Guj

Gujarat High Court

Chairman / Manager vs Kanubhai Mansukhbhai Macchi on 4 January, 2024

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      C/SCA/871/2009                             JUDGMENT DATED: 04/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 871 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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1     Whether Reporters of Local Papers may be allowed to              No
      see the judgment ?

2     To be referred to the Reporter or not ?                          No

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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                           CHAIRMAN / MANAGER
                                  Versus
                       KANUBHAI MANSUKHBHAI MACCHI
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Appearance:
MR NILESH A PANDYA(549) for the Petitioner(s) No. 1
MS HINA DESAI(1023) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 04/01/2024

                             ORAL JUDGMENT

1. This petition in filed challenging the following orders:

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(a) Interim order dated 23.11.2001 by Labour Court, Vadodara, in T. Application No.5 of 1995,

(b) Order dated 29.04.2004 by Industrial Court, Vadodara, in Revision Application No.3 of 2002.

(c) Final order dated 29.12.2006 by Labour Court, Vadodara in T. Application No.5 of 1995 and

(d) Order dated 13.08.2008 by Industrial Court, Vadodara in Appeal (I.C.) No.19 of 2007.

2. By interim order dated 23.11.2001 in T. Application No.5 of 1995, the Labour Court, Vadodara held that the inquiry initiated against the workman was illegal. However, in the said order, Labour Court Vadodara gave liberty to the petitioner-Bank to conduct de-novo inquiry. Aggrieved by the order dated 23.11.2001, the Bank preferred revision application before Industrial Tribunal and the same was rejected. Thereafter, in the final order dated 29.12.2006, in T Application No.5 of 1995 the Labour Court held the inquiry as illegal and awarded reinstatement with 50% backwages. In the Appeal (IC) No. 19 of 2007 by the workman, challenging grant of 50% back wages only, the Industrial Court, Vadodara by an

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order dated 13.08.2008 awarded 100% backwages.

3. Facts in brief are as under:

The petitioner is a cooperative bank and working under the RBI Rules and Regulations. The respondent - workman was an employee of the petitioner - Bank and joined the services on 13.01.1986. On the allegations of misappropriation of funds for the incident occurred on 16.06.1994, the workman was charge-sheeted and terminated from service on 17.02.1995. Aggrieved by the initiation of departmental inquiry and termination, the workman raised the industrial dispute before Labour Court, Vadodara, registered as T. Application No.5 of 1995 under the Bombay Industrial Relations Act. In the pending reference, workman also challenged the legality and validity of the departmental inquiry. It was case of the workman that proper procedure as contemplated under the provisions of the Act was not followed and therefore, the inquiry initiated is bad in law. The Labour Court, Vadodara, by interim order dated 23.11.2001 held the inquiry proceedings as illegal and bad in law. However, it gave the opportunity to the Bank to conduct de-novo inquiry before the Labour Court. Aggrieved by the order dated 23.11.2001, the petitioner bank preferred Revision Application No.3 of 2002 which was rejected by order dated 29.04.2004.

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In the order of revision application, the Industrial Court, Vadodara again held the inquiry as illegal. After decision in the Revision Application No.3 of 2002, the T. Application No.5 of 1995 was decided by the Labour Court vide order dated 29.12.2006 in which the workman was awarded reinstatement with 50% backwages. Since only 50% back wages was awarded, the respondent workman preferred Appeal (IC) No.19 of 2007 and the same was allowed granting 100% backwages. Aggrieved by the orders referred herein above, the petitioner - Bank has preferred the present petition.

It is also noticed that during pendency of this petition, co-ordinate Bench of this Court by order dated 20.04.2009, directed the petitioner - Bank to pay 50% backwages to the workman. Against the order of this Court dated 20.04.2009 (to pay 50% back wages), Letters Patent Appeal was filed, which was also dismissed.

4. Heard Mr. Nilesh Pandya, learned advocate for the petitioner - Bank and Ms. Hina Desai, learned advocate for the respondent - workman.

5. Mr. Pandya, learned advocate for the petitioner - bank submitted that the interim order passed by the Labour Court, Vadodara dated 23.11.2001 in T. Application No.5 of 1995, order dated 29.04.2004 in Revision Application No.3 of 2002

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and final order dated 29.12.2006 in T. Application No.5 of 1995 are bad in law because the Court erred in not appreciating that the inquiry was initiated on account of misappropriation of funds by the respondent - workman. The respondent - workman withdrew the amount in collusion with other employees and made wrong entries in the Bank accounts. On account of these fraud entries and financial irregularities, the respondent was put under suspension and thereafter departmental inquiry was initiated. He submitted that the charges are of serious nature and the same was initiated after following due procedure and therefore, the orders dated 23.11.2001, 29.04,2004 and 29.12.2006 holding the inquiry bad in law are beyond the facts and deserves to be quashed and set aside. Further during the pendency of T. Application, the workman challenged the illegality and validity of the departmental inquiry, wherein the petitioner - bank was permitted de-novo inquiry. On one hand holding the inquiry illegal and on other hand granting opportunity to the petitioner for de-novo inquiry is beyond the standing orders of the Bank and therefore, both the orders deserve to be quashed and set aside. He submitted that without considering the gravity of charge, the inquiry was quashed and set aside. Further, in the Appeal (IC) No.19/2007 by the workman, 100% backwages was allowed without considering the facts that he had not worked for the said period. Therefore, the order in Appeal (IC)

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No.19/2007 also deserves to be quashed and set aside.

6. On the other hand, Ms. Desai, learned advocate for the respondent - workman submitted that by order dated 23.11.2001 in T. Application No.5 of 1995, the Labour Court, Vadodara permitted de-novo inquiry to be conducted before the Court. Thereafter the Revision Application No.3 of 2002 challenging the order dated 23.11.2001 was dismissed despite that no de-novo inquiry was conducted and the Bank without conducting de-novo inquiry participated in the T. Application proceedings. In the T. Application proceedings, neither the witnesses were examined nor the workman was cross-examined and, therefore it is rightly held by the Labour Court that the charges are not proved. Though the charges were casting stigma, no inquiry was conducted despite being granted fresh opportunity. In this case the petitioner- Bank failed to prove that the workman was gainfully employed. Though the workman was not gainfully employed, he was granted only 50% backwages. Therefore, he preferred Appeal (IC) No.19/2007. By the time of hearing of Appeal (IC) No.19/2007, the workman had attained the age of superannuation (60 years). Even the appellate Court has observed that the petitioner had not conducted de-novo inquiry nor cross-examined the respondent and there was no proof of gainful employment. Considering the above aspect,

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the appeal filed by the workman was allowed by granting 100% backwages.

7. Ms. Desai, learned advocate further submitted that during pendency of this petition, the Coordinate Bench of this Court directed the petitioner to pay 50% backwages. However, terminal benefits like gratuity, leave encashment etc. are not paid. She submitted that Letters Patent Appeal filed challenging the interim order directing the petitioner - bank to pay 50% was rejected by order dated 01.12.2009. In the criminal prosecution for the very charges the respondent is acquitted by the competent court of law and, therefore the workman is now entitled for 100% backwages and the terminal benefits. She submitted that the respondent is of 81 years and therefore, the petitioner - Bank may be directed to pay the 100% backwages and the terminal benefits as expeditiously as possible.

8. Considered the submissions and the orders on record. Undisputedly, the respondent - workman was dismissed/terminated on account of alleged mis-appropriation of funds and inquiry initiated against him. Aggrieved by the termination and initiation of inquiry, the workman preferred T. Application No.5 of 1995 and the Labour Court, Vadodara by order dated 23.11.2001 permitted de-novo inquiry in the pending proceedings, which the Bank failed to initiate. On the

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contrary, the revision application filed challenging the interim order holding the inquiry illegal and permitting the bank to initiate de-novo inquiry was also dismissed. In the final order dated 29.12.2006 in T. Application No.5 of 1995, it was held by the Labour Court that despite opportunity granted, the petitioner - bank neither cross-examined the respondent nor examined any witnesses. Therefore, the charges levelled against the respondent are not proved. As held by the Labour Court that despite efforts, the workman could not get employment and, therefore, 50% backwages was awarded with reinstatement. In the appeal filed by the workman considering the fact that since the charges levelled against the workman are not proved and the inquiry initiated was illegal and particularly in view of the fact that though tried, the workman could not get employment, 100% backwages was awarded. It is also noticed that against the order of Industrial Court in Appeal (IC) No.19/2007 dated 13.08.2008, the petitioner preferred Special Civil Application No.871 of 2009 wherein all the above orders have been challenged. The workman was granted 50% backwages by order of coordinate Bench dated 20.04.2009. Even the Letters Patent Appeal filed challenging the interim order dated 20.04.2009 was dismissed on 01.12.2009. Most importantly, the criminal case filed against the workman resulted in acquittal and, therefore, when the inquiry was not initiated despite being granted permission by

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the Labour Court, inquiry cannot be stated to be pending against the workman. In view of the acquittal of the workman in the criminal proceedings, no proceedings are pending against the workman and therefore he would be entitled to 100% backwages as ordered by Industrial Court, Vadodara in Appeal (IC) No.19/2007.

9. Thus, the present petition is dismissed by confirming the order of Appeal (IC) No.19/2007 whereby the workman was granted 100% backwages. In view of the above, the petitioner is directed to pay remaining 50% backwages to the workman along with terminal benefits, if any, within the period of 12 weeks from the date of receipt of the order.

10. Rule discharged.

(MAUNA M. BHATT,J) NAIR SMITA V.