Gujarat High Court
Sumanbhai Kanjibhai Makwana vs Ruti Machinery Spares on 4 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8314 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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SUMANBHAI KANJIBHAI MAKWANA
Versus
RUTI MACHINERY SPARES & ANR.
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 04/08/2025
ORAL JUDGMENT
1. The present petition is filed under Articles 226 and 227
of the Constitution of India, assailing the order dated
07.12.2024 passed by the learned labour court in
Approval Application No. 8 of 2011 in Reference (LCAD)
No. 03 of 2010, whereby the application filed by the
respondent-employer under Section 33(2)(b) of the
Industrial Disputes Act, 1947 (hereinafter referred to as
the "I.D. Act") came to be allowed.
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2. It is the case of the petitioner that he is a member of the
Union who had raised a charter of demands against the
respondent-management, seeking a wage revision. The
said industrial dispute came to be referred and was
registered as Reference (LCAD) No. 3 of 2010, which
was pending adjudication before the learned labour
court at Ahmedabad. During the pendency of Reference
Demand No. 3 of 2010, the petitioner was issued a show-
cause notice dated 17.11.2010, directing him to submit
an explanation for the alleged misconduct committed
against the management. The petitioner submitted his
reply on 26.11.2010 along with a medical certificate.
Thereafter, the respondent decided to initiate a
departmental inquiry against the petitioner and
ultimately the inquiry was conducted, and the Inquiry
Officer submitted his findings to the management on
13.04.2011. Following this, the respondent issued a
show-cause notice on 16.04.2011, and subsequently,
passed an order of dismissal from service on 09.05.2011.
Since the industrial dispute was pending before the
learned labour court, Ahmedabad, therefore,
respondent-management filed Approval Application No.
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8 of 2011 under section 33(2)(b) of the I.D.Act and the
respondent has filed the reply objecting the approval
application and learned court by passing the impugned
order has allowed the said application which is subject
matter of challenge before this Court.
3. Heard learned advocate Mr.U.T.Mishra for the
petitioner.
4. Learned advocate Mr.Mishra submits that the learned
labour court has not assigned any reasons for allowing
the approval application. Learned advocate Mr.Mishra
submits that a detailed reply was filed by the petitioner
opposing the said application, wherein it was specifically
contended that the respondent-management had
indulged in unfair labour practices and that the
petitioner, being an active trade union leader, was being
victimized by issuance of the show-cause notice on the
ground of alleged unauthorized absence from duty.
Learned advocate Mr.Mishra submits that while
adjudicating the approval application, the learned labour
court failed to consider or discuss any of the contentions
raised by the petitioner in his reply. Learned advocate
Mr.Mishra submits that while deciding the approval
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application, management has to prove the prima facie
case for imposing extreme penalty of dismissal from
service and has to justify the order of termination.
However, in absence of the same, learned court has
committed an error in granting the approval application.
Learned advocate Mr.Mishra submits that the charge
leveled against the petitioner pertains to unauthorized
absence without prior permission. However, without
discussing the said charge or explanation offered for
remaining on unauthorized leave by the present
petitioner, the learned Judge has granted the approval
application. Therefore, same is required to be interfered
with and the petition is required to be allowed.
5. Having considered the submissions advanced by the
learned advocates for the petitioner and perused the
reasons recorded by the learned labour court, it
emerges that the charge against the petitioner pertained
to unauthorized absence from duty. A show-cause notice
in this regard was issued to the petitioner on
17.11.2010, and the petitioner submitted his reply on
26.11.2010. Thereafter, departmental proceedings were
initiated, and the first hearing was scheduled on
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03.01.2011. However, the Inquiry Officer was
unavailable on that date, and the hearing was
rescheduled to 12.01.2011. On 12.01.2011, both the
petitioner and the management's representative were
present. The management submitted documentary
evidence, including copies of the show-cause notice,
inquiry notice, acknowledgments, etc. The petitioner
submitted an application seeking permission to be
represented by an advocate, which was rejected.
However, he was permitted to be represented by a co-
employees. In the petitioner's presence, the
management examined witness namely Mr. Dipakbhai
Kori. The petitioner sought time for further
participation, which was granted, and the inquiry was
adjourned to 19.01.2011. On that date, the petitioner
failed to appear despite being duly informed. The
management proceeded to examine witness Mr.
Narendrabhai Leua on 19.01.2011. In order to provide
the petitioner with an opportunity for cross-examination,
the inquiry was adjourned to 16.02.2011. Despite due
notice, the petitioner again failed to appear on
16.02.2011, and the inquiry was further adjourned to
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05.03.2011. The petitioner once again remained absent.
Consequently, the inquiry proceedings were concluded,
and the Inquiry Officer submitted his report on
13.04.2011.
6. During his cross-examination conducted before the
learned labour court, the petitioner admitted to having
received all communications issued by the respondent-
management. He also admitted that he had refused to
accept the money order sent by the management. It thus
clearly emerges that despite having received all relevant
notices from the Inquiry Officer, the petitioner failed to
participate in the inquiry proceedings. The petitioner
has alleged the violation of principle of natural justice.
7. At this stage reference of the judgment rendered by the
Apex Court in the case of Bank Of India vs Apurba
Kumar Saha reported in 1994 2 SCC 615 is required
to be referred, wherein it is held that the records of the
disciplinary proceedings show that the respondent has
avoided filing of the written statement for the charges of
misconduct leveled against him and had for no valid
reasons, refused to participate in the disciplinary
proceedings. An employee who has refused to avail the
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opportunity provided to him in disciplinary proceedings
of defending himself against the charges of misconduct,
cannot be permitted to complaint later that he had been
denied a reasonable opportunity of defending himself of
the charges leveled against him and disciplinary
proceedings conducted against him had resulted in
violation of principle of natural justice of fair hearing.
8. Learned labour court, while exercising the power under
section 33(2)(b) of the I.D.Act has to give or refuse the
permission, at that stage it is not adjudicating the
industrial dispute. The jurisdiction of the industrial
tribunal under section 33(2)(b) of the I.D.Act cannot be
equated with that of section 10 of the of the I.D.Act.
While exercising the jurisdiction under section 33(2)(b)
of the I.D.Act, the industrial tribunal is required to see
as to whether prima facie case has been made out as
regards validity or otherwise of the domestic inquiry
held against the delinquent employee, keeping in view
the fact that if the permission or approval is granted, the
order of discharge or dismissal which may be passed
against the delinquent employee would be liable to be
challenged in an appropriate proceedings before the
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industrial forum in terms of the provision of the ID Act.
9. In determining whether prima facie case has been made
out, the relevant consideration is whether on the
evidence laid, it is possible to arrive at the conclusion in
question and not whether that was the only conclusion
which could be arrived at on that evidence. It may be
that the tribunal, considering this question may itself
have arrived on a different conclusion. The tribunal,
however, cannot substitute its own judgment for the
judgment in question. Learned court has to only
consider, whether the view taken is a possible view on
the evidence on record. The industrial forum has no
jurisdiction while deciding the application under section
33(2)(b) of the I.D.Act to consider whether punishment
sough to be meted out by the employer to the workman
is harsh or excessive, or to substitute another
punishment or to impose any condition before requisite
permission could be granted. It cannot substitute its
judgment of the management on the question, whether
the punishment is unduly severe and to hold that the
punishment proposed is not necessary. The question
about adequacy of the evidence or its sufficiency or
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satisfactory character is irrelevant. If the court negates
the malafides on the part of the employer or any
intention to victimize the workers for his participation in
the industrial disputes, the tribunal is bound to accord
its approval to the action of the employer leaving the
propriety of quantum of punishment for being agitated
in other proceedings open under the Act. In absence of
any case of unfair labour practice or victimization, the
learned court is justifying in granting the permission to
dismiss the petitioner employee.
10. As the respondent has sent the notice pay at the time of
termination, though not accepted, would amount to
fulfilling the criteria mentioned under section 33(2)(b) of
the I.D.Act. The opinion of this Court is supported by the
decision rendered in the case of The Management of
Delhi Transport Undertaking Vs. The Industrial
Tribunal, Delhi and Anr reported in (1965) 1 SCR
998, wherein it is held as under:-
"The provision as to payment of compensation equivalent to one
month's wages to workmen contained in proviso to sub-section (2)
of Section 33 of ID Act came up for the consideration of this
Court. It was held that the proviso did not mean that the wages
for one month have to be actually paid; the employer is expected
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to tender the amount before the dismissal but cannot force the
employee to receive the payment before dismissal becomes
effective. The making of the tender of the amount, before the
order of dismissal becomes effective, would be sufficient
compliance."
11. In view of the above, no interference is called for and
this petition deserves to be dismissed.
12. Resultantly, this petition is dismissed.
(M. K. THAKKER,J)
NIVYA A. NAIR
