Gujarat High Court
Bharuch Jilla Audyogik Kamdar Sangh vs Birla Cellulosic on 23 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13493 of 2004
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 13493 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
YES
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BHARUCH JILLA AUDYOGIK KAMDAR SANGH
Versus
BIRLA CELLULOSIC
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Appearance:
AMRESH N PATEL(2277) with vickey h kori(7993) for the petitioner(s) no. 1
LD.SR.ADV.MR MIHIR JOSHI WITH MR NIRAV JOSHI WITHI MR
PRAVALIKHA BATTHINI FOR GANDHI LAW ASSOCIATES(12275) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 23/06/2025
ORAL JUDGMENT
"Every litigation has a moral and, these appeals have
many, the foremost being that the economics of law is
the essence of labour jurisprudence." -Justice Krishna Iyer
1. The present petition is filed under Articles 226 and 227 of
the Constitution of India, challenging the award dated
25.05.2004 passed by the learned Industrial Tribunal,
Vadodara, whereby the Tribunal rejected the relief of
reinstatement and all consequential benefits to 26
workmen, converted the dismissal orders into orders of
discharge, and granted only monetary compensation--
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Rs.50,000/- to 5 workmen and Rs.70,000/- to 20
workmen.
2. It is the case of the petitioner-Union that it represents
approximately 415 workmen/technicians and had raised
concerns regarding industrial unrest vide its letter dated
29.09.1999, addressed to the office bearers and
members of the Executive Committee of the respondent-
company. On the same day, upon raising the demands,
the respondent-company suspended three members of
the Union on the alleged ground that they had refused to
perform the task of breaking sulfur and other duties that
were previously carried out by contract labourers.
Subsequently, all three workmen were reinstated into
service based on an understanding arrived at in the
presence of the Labour Commissioner and the Deputy
Labour Commissioner on 20.01.2000.
2.1. It is the case of the petitioner-Union that on
04.10.1999, the Union communicated to the
management through a letter, requesting resolution of
the issues concerning its members and informing that,
with their consent, they would begin wearing black
badges from 05.10.1999 as a mark of protest. The
petitioner-Union also demanded the payment of bonus
at the rate of 20% for the years 1997-98 and 1998-99,
vide communication dated 11.10.1999.
2.2. It is further the grievance of the petitioner-Union
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that the respondent-company declares paid holidays
at the beginning of the year, and the same is
communicated to each workman through their leave
card. When the company desires that any technician
should report for duty on a paid holiday, such
technician is informed in advance, and written consent
is obtained by the company. In such cases, the
company used to pay double to the regular wages. The
petitioner-Union, vide letter dated 03.11.1999,
informed the company that the workmen intended to
avail the paid holidays declared on 07.11.1999 (Diwali)
and 09.11.1999 (New Year), and requested the
company to make necessary arrangements
accordingly. The petitioner-Union further conveyed
that it had become compulsory for technicians working
in regular shifts to work even on paid holidays, and
those working in general shifts whose names appeared
on the list published by the company were also
required to report for duty on such days. Prior to these
dates, the petitioner-Union had also raised a similar
request for paid holiday leave for the festival of
Dussehra, which fell on 19.10.1999. The petitioner-
Union also issued a notice dated 04.11.1999 regarding
the revocation of suspension of three workmen,
namely, Kalpesh Patel, Ishwar Chavda, and Harish
Rana.
2.3. It is the case of the petitioner-Union that, as per the
notice dated 03.11.1999 informing the respondent-
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company regarding the paid holiday on 07.11.1999,
when the workmen went to join duty on 08.11.1999,
they found that the company gate was locked and
heavy police bandobast was deployed at the company
premises since 06.11.1999. Upon inquiring about the
reason for the lockout, it was informed that unless and
until all the technicians submit an undertaking
prepared by the company, no workman would be
allowed to enter the company premises. Thereafter,
several workmen and members of the petitioner-Union
were suspended on 08.11.1999 and were dismissed on
10.11.1999, pending inquiry. Simultaneously, they also
received their dismissal orders.
2.4. The petitioner-Union, challenging the said action on
the part of the management, filed a petition before
this Court being Special Civil Application No.100 of
2000, wherein a compromise was arrived at between
the parties on 20.01.2000 in the presence of the
Labour Commissioner, Gujarat State, regarding the
revocation of the suspension and dismissal orders of
29 workmen out of 81, while the remaining 52
workmen continued to be under dismissal. As per the
said compromise, the respondent-company agreed to
withdraw the condition of obtaining undertakings from
the workmen as a precondition for resuming duties. It
was further agreed to constitute a committee
comprising the Deputy Labour Commissioner, Mr.
Himanshu Bhatt (representative of the company), and
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Mr. Mukesh Rana (representative of the Union) to
review the cases of all 52 workmen within a period of
six months. During this period, there would be no
agitation, strike, or lockout. Additionally, all 52
workmen were to be paid Rs.1,600/- per month until
their cases were reviewed by the committee. In light of
the said compromise, the petition being Special Civil
Application No.100 of 2000 was permitted to be
withdrawn by this Court.
2.5. As the cases of the 52 workmen were not reviewed
within the stipulated period of six months as agreed
upon in the compromise, communications were
addressed by the Union to the Assistant Labour
Commissioner, Deputy Labour Commissioner, and
Labour Commissioner on 22.05.2000, 06.06.2000, and
16.06.2000, respectively. In view of these
communications, the Assistant Labour Commissioner,
on 08.05.2000, requested the company to implement
the terms of the compromise dated 20.01.2000.
Subsequently, on 01.08.2000, the Vice President (HR
Department) of the company communicated to the
Deputy Labour Commissioner and the President of the
Union that 30 out of the 52 dismissed workmen were
permitted to resume duty. However, 26 workmen were
left out. It is further alleged that the company
compelled the 30 reinstated workmen to submit
undertakings prepared by the company as a condition
for resuming duty. Challenging this action of the
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company, the Union submitted a demand letter dated
16.11.1999 to the Government Authorities under the
Industrial Disputes Act. Along with the said demand
letter, the Union also filed a complaint alleging unfair
labour practices prohibited under the Industrial
Disputes Act. The Union also filed a complaint with the
Superintendent of Police, Bharuch, on 29.12.1999
regarding the firing by armed security personnel
engaged by the company, directed at workmen who
were sitting peacefully away from the company gate.
2.6. It is further the case of the petitioner-Union that,
with respect to the demands raised by the petitioner-
Union, the State Government passed an order dated
28.02.2001 referring the dispute to the Industrial
Tribunal, which was registered as Reference (IT) No.73
of 2001. The petitioner-Union filed its statement of
claim, and the company submitted its written
statement below Exhibit 23. Thereafter, the petitioner-
Union filed an interim relief application on 07.04.2002,
praying for an order directing the respondent-company
to pay 75% of the wages to all 26 concerned workmen
during the pendency of the Reference. After hearing
both parties, the learned Industrial Tribunal allowed
the interim relief application filed below Exhibit 30 and
directed the respondent-company to pay wages at the
rate of Rs.1800/- per month to all 26 workmen for the
period from November 2000 to 31.03.2001 and to
continue paying the said amount until the final
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disposal of the Reference. The petitioner-Union
examined 27 witnesses to establish its case, and the
respondent-company examined 10 witnesses in
support of its defence. After considering the evidence
led by both sides, the learned Industrial Tribunal
decided the Reference by rejecting the claim for
reinstatement and consequential benefits, as stated
above, which is now the subject matter of challenge
before this Court.
3. Heard the learned advocate Mr.Amresh Patel with learned
Mr.Vikety Kori for the petitioner and learned senior
advocate Mr.Mihir Joshi with learned advocate Mr.Nirav
Joshi with learned advocate Ms.Rachna Pastore and
learned advocate Mr.Shoriyaduttsingh Rathore for the
respondent.
4. Learned advocate Mr. Amresh Patel submits that the
learned Industrial Tribunal has committed a grave error in
law and jurisdiction by exercising powers not vested in it.
He submits that, without proving the alleged misconduct
through documentary or oral evidence, the Tribunal has
erroneously concluded that the charges levelled against
the 26 workmen stand proved. This conclusion was
reached solely on the basis of the chief examination,
without properly appreciating the contradictions that
were brought out during the cross-examination.
4.1. Learned advocate Mr. Patel submits that the
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learned Industrial Tribunal has also erred in holding
that the workmen were on an illegal strike from
07.11.1999 to 20.01.2000. Referring to the provisions
of the Industrial Disputes Act, Mr. Patel submits that as
on 07.11.1999, no conciliation proceedings were
pending, nor was any Reference pending before the
Industrial Court, and no settlement or award was in
operation. In this background, the alleged strike
cannot be termed as illegal under Sections 24(1) and
24(2) of the Industrial Disputes Act, as there was no
contravention of the provisions of Sections 22 or 23 of
the Act.
4.2. Learned advocate Mr. Patel submits that the
workmen had merely availed the public holidays as
declared by the company in their leave cards, and
therefore, it cannot be construed that availing such
holidays amounts to a strike or an illegal strike. He
further submits that the company has nowhere
established that it was compulsory or mandatory for
the workmen to report for duty on the declared paid
holidays. Moreover, the company has also failed to
produce any licence under the Factories Act indicating
that it had obtained permission to operate on all seven
days under a continuous process system.
4.3. Learned advocate Mr. Patel submits that
09.10.1999, 07.11.1999, and 09.11.1999 were public
holidays declared by the company, and in the absence
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of any permission obtained by the employer to require
work on weekly offs, public holidays, or any other
declared holidays, no question arises of the workmen
going on strike by merely availing such holidays. He
further submits that the employer does not have any
legal right to compel workmen to attend duty on
declared holidays. Relying on the provisions of
Sections 64 and 65 of the Factories Act, learned
advocate Mr. Patel submits that, for continuous
manufacturing activities, it is mandatory for the
employer to obtain specific permission. In the absence
of such permission, the mere act of availing public
holidays by the workmen cannot be treated as an
illegal strike.
4.4. Learned advocate Mr. Patel submits that it is an
admitted fact that the workmen had reported to the
factory gate on 08.11.1999 with the intention to
resume their duties. However, the gate was found
locked, and it was communicated to them that unless
and until an undertaking was submitted by the
workers, they would not be allowed entry or permitted
to resume work. Relying on the provisions of Section
2(q) of the Industrial Disputes Act, learned advocate
Mr. Patel contends that such conduct on the part of the
employer cannot be construed as a strike, let alone an
illegal strike. Nevertheless, the learned Industrial
Tribunal has erroneously concluded that the workmen
were on an illegal strike and, on that basis, has
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unjustly rejected their claim for reinstatement.
4.5. Learned advocate Mr. Patel submits that the
suspension orders were issued on 08.11.1999, and
within a span of one or two days, the dismissal orders
were passed against the concerned workmen,
primarily on the allegation that, during the suspension
period, the workmen had threatened the company's
officers to deter them from deposing in the
departmental inquiry. It was also alleged that such
threats were extended over the phone. Learned
advocate Mr. Patel further submits that these
allegations were not substantiated by the respondent
company either through oral or documentary
evidence. On the contrary, the imputations and the
statements of the witnesses were contradicted during
cross-examination. He submits that the respondent
company neither named the concerned workmen
allegedly involved nor produced any police complaint
or corroborative material to support such serious
charges. In spite of this, the learned Industrial Tribunal
failed to consider the illegality and arbitrariness of the
dismissal orders passed within two days of the
suspension and unjustly denied the relief of
reinstatement to the workmen.
4.6. Learned advocate Mr. Patel, while referring to the
suspension order, submits that the allegations levelled
therein were vague and generalized. The suspension
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order alleged that from 29.09.1999 onwards, certain
workmen were involved in committing serious acts of
misconduct during duty hours, which allegedly led to
industrial unrest, resulting in significant damage to the
company's property, acts of sabotage in the plant, and
serious mishaps. Learned advocate Mr. Patel submits
that none of these allegations were proved by the
respondent-company through any cogent oral or
documentary evidence. On the contrary, the
petitioners have successfully demonstrated that no
such damage to the property occurred, nor was there
any act of sabotage or incident of a serious mishap
within the company premises, thereby rendering the
allegations baseless and unsubstantiated.
4.7. Learned advocate Mr. Patel submits that all 26
workmen were suspended and subsequently dismissed
on the basis of identical charges, and their services
were terminated without conducting any departmental
inquiry. However, instead of examining the evidence
individually against each workman for the specific
allegations attributed to them, the learned Industrial
Tribunal has rendered a general and collective finding.
Learned advocate Mr. Patel submits that such an
approach is perverse and contrary to the settled
principles of law, as it amounts to non-application of
mind. Therefore, interference in the impugned award
is warranted.
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4.8. Learned advocate Mr. Patel submits that, with
regard to the allegations of threatening over the
phone and cutting of the telephone cable, the
petitioner-Union has established that the entire
telephone exchange had gone out of order and was
not functioning. Therefore, the said allegations are
false, baseless, and fabricated. Learned advocate Mr.
Patel further submits that the 10 witnesses who
deposed before the Tribunal did not specify which of
the 26 workmen had allegedly threatened the
company's officials, thereby rendering the allegations
vague and unsubstantiated.
4.9. Learned advocate Mr. Patel submits that three
workmen, namely N.S. Patel, Vikas Patel, and Balvant
Yadav, were specifically charged with threatening the
company's officials. However, during their cross-
examination, they made completely contradictory
statements regarding the phone system of the
company. Despite these contradictions, the learned
Tribunal failed to hold that the said charge was
perverse, and without properly appreciating the
inconsistencies in the evidence, the Reference
claiming reinstatement was erroneously rejected.
4.10. Learned advocate Mr. Patel submits that, with
regard to the charge of refusal to work, it is pertinent
to note that the work of cleaning, sweeping, etc., had
always been carried out by contract workers, whereas
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the workmen who are members of the petitioner-Union
were employed as technicians. He submits that none
of the witnesses of the respondent-company have
established that any specific notice or memo was
issued to the concerned employees for the alleged
misconduct.
4.11. Learned advocate Mr. Patel further submits that
between 06.11.1999 and 10.11.1999, 80 workmen
were terminated, out of which only 26 workmen
remain out of employment. Despite specific requests,
the company failed to produce documents showing the
nature of misconduct or charges, if any, against the
workmen who were reinstated, as well as any
dissimilarities between them and those who were not
reinstated.
4.12. Learned advocate Mr. Patel submitted that the
petitioner-Union had led sufficient evidence to show
that the company was operating smoothly without any
disruption from 27.09.1999 to 06.11.1999. However,
the learned Industrial Tribunal failed to consider the
said evidence and erroneously rejected the Reference
seeking reinstatement of the workmen.
4.13. Learned advocate Mr. Patel submits that, with
respect to the allegation of reduction in production as
raised by the respondent-company, the statement
showing production figures was placed on record
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below Exhibit 69/2. The witness examined by the
respondent-company, namely Mr. Arvindkumar Jain,
who deposed below Exhibit 85, admitted that during
the period from September 1999 to December 1999,
the plant capacity was 154 tons per day and that the
total production loss was only 97 tons. He further
stated that due to this alleged loss, the company
suffered a financial loss of Rs.20 crore.
4.14. Learned advocate Mr. Patel submits that this
assertion is self-contradictory, as it is also the
respondent's case that the company was non-
operational from 08.11.1999 for two months. If the
total loss was only 97 tons during such a period, then
it cannot be said that there was a substantial or
deliberate reduction in production attributable to the
workmen.
4.15. On the contrary, it is submitted that during the
period when the company was operational, production
was in fact above the average level. Moreover, only
selective data covering four months has been
produced, and no documentary evidence has been
placed on record regarding the total sales, detailed
production reports, or actual output for the relevant
period from September to December 1999.
4.16. It is further submitted by the learned advocate
Mr.Patel that the respondent's witness himself
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admitted that the 154-ton daily production capacity is
subject to monthly fluctuations and that technical
issues may also result in reduced output. Despite such
admissions, the learned Industrial Tribunal has
rendered findings based purely on conjecture and
surmise. Therefore, the impugned award suffers from
perversity and warrants interference by this Hon'ble
Court.
4.17. Learned advocate Mr. Patel submits that, with
regard to the charge of sitting idle, the oral evidence
given by the respondent-company's witnesses stands
falsified when examined in light of the attendance
sheets produced on record. The attendance sheets
clearly indicate that the concerned employees were
assigned to different shifts than those alleged by the
company's witnesses in their depositions.
4.18. Furthermore, with respect to the charge of breaking
the glass of the notice board, learned advocate Mr.
Patel submits that the said allegation has also been
disproved. During cross-examination, the witnesses
examined by the respondent-company admitted that
they did not personally witness any specific employee
committing the act of breaking the glass of the notice
board. Therefore, in the absence of direct or
corroborative evidence, the said charges are baseless
and unsubstantiated.
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4.19. Learned advocate Mr. Patel submits that, with
regard to the charges of causing injuries to
administrative personnel and filing a police complaint,
the Security Head of the respondent-company, during
his oral deposition, clearly admitted that he was not
aware of any specific act by the concerned workmen
that resulted in injuries to any member of the
administration. He further deposed that he could not
state whether the concerned workmen were involved
in any act of sabotage, shouting of slogans, or issuing
threats over the telephone.
4.20. Despite these admissions, which weaken the
respondent's case substantially, the learned Industrial
Tribunal has failed to properly consider this material
evidence and has erroneously recorded findings
against the petitioner-Union. It is submitted that such
findings are not supported by credible or direct
evidence and hence, deserve interference.
4.21. Learned advocate Mr. Patel submits that, with
regard to the allegations of misconduct such as acts of
sabotage, obstructing contract workers, and stopping
vehicles carrying goods and materials as referred to in
the complaints and Chapter Case filed before the
learned Executive Magistrate the petitioner-workmen
had also filed Chapter Cases against the officers of the
respondent-company. However, both sets of Chapter
Cases were withdrawn in view of the settlement dated
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20.01.2000. Despite this, the learned Industrial
Tribunal, while rendering its findings, failed to consider
the Chapter Cases filed by the petitioner-Union and
solely relied upon those filed by the respondent-
company. This selective reliance on material evidence,
while disregarding the relevant documents filed by the
workmen, renders the findings of the Tribunal
erroneous and unsustainable in law.
4.22. Learned advocate Mr. Patel submits that the
respondent-company has indulged in unfair labour
practice by discriminating against the concerned
workmen, inasmuch as, for identical charges of
misconduct, all other similarly situated workmen were
reinstated, whereas only 26 workmen were kept out of
employment pursuant to the orders of suspension and
dismissal. Such selective treatment clearly amounts to
victimization and violates the principles of equality and
fair play in industrial jurisprudence.
4.23. Learned advocate Mr.Patel submits that all
evidences which were exhibited if one would compare
together then it is clearly established that the
workmen who have been taken in employment and
concerned workmen of this Reference, who had not
been taken on employment were suspended pending
inquiry and thereafter dismissed on identical charges
and the allegation.
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4.24. Learned advocate Mr. Patel submits that the
documentary evidence led before the learned Tribunal
clearly indicates that the management showed no
genuine intent to convene the meeting of the review
committee. The decision taken with regard to the 26
workmen was entirely one-sided and in violation of the
agreement dated 20.01.2000. However, instead of
calling for and comparing the documents relating to
the 52 workmen who were reinstated by the company,
the learned Industrial Tribunal proceeded to decide the
Reference against the present petitioner-Union.
4.25. Learned advocate Mr. Patel submits that the
respondent-company is engaged in manufacturing and
production activities and has employed workmen
under two distinct categories: (i) regular workmen
appointed as technicians qualified ITI holders
numbering approximately 450, and (ii) workers
engaged through a contract system, performing tasks
such as sweeping, cleaning, loading and unloading,
shifting materials, dumping raw materials into
machines, collecting alphas from the areas around the
machines, and re-dumping the same into the
machines, as well as sulfur packing, etc., numbering
around 250. The petitioner-Union has established,
through documentary evidence produced below
Exhibit 12/16 specifically a letter dated 01.04.1999
issued by Mr. Shailendra Jain, President of the Birla
Group that certain directions were given regarding
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cost reduction and productivity enhancement. In the
said communication, a target was set to reduce the
workforce by 10%, to be implemented from
01.10.1999 onwards. Pursuant to this directive, it was
instructed to immediately freeze new recruitments, lay
off low-performing staff, discontinue temporary
employees, and redistribute the workload among the
existing workforce.
4.26. In implementation of the aforesaid communication,
the company began to compel and pressurize the
technicians, who were primarily responsible for
operating and maintaining machinery and production
equipment to undertake tasks previously assigned to
contract workers, such as floor cleaning, breaking
sulfur, lifting raw materials, shifting materials, and
handling loading/unloading of finished and unfinished
products.
4.27. Learned advocate Mr. Patel submits that no prior
notice regarding this change in service conditions was
issued to the workmen, and therefore, the action of
the respondent-company in unilaterally altering their
duties by compelling them to perform tasks outside
the scope of their employment is illegal. The
petitioner-Union has also produced several notices and
communications to establish that, due to these
unreasonable, illegal, and void actions of the
management, the workmen were compelled to
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organize and form a Union to protest against such
actions in a lawful and democratic manner.
4.28. Learned advocate Mr. Patel submits that out of the
26 concerned workmen, 6 were office bearers of the
petitioner-Union, which was not appreciated by the
respondent-company and ultimately led to the
termination of their services.
4.29. Learned advocate Mr. Patel submits that the said
action of the respondent-company is a clear case of
victimization and amounts to a colourable exercise of
power, which is in violation of the provisions of
Sections 25T and 25U read with Section 2(ra) of the
Industrial Disputes Act. Therefore, the action of the
respondent-company in terminating the services of the
workmen is required to be declared illegal and void,
and all the concerned employees are entitled to be
reinstated in service with all consequential benefits.
4.30. Learned advocate Mr.Patel relies on the following
decisions and submits to allow this petition by setting
aside the impugned award passed by the learned
Industrial Tribunal qua not granting the relief of
reinstatement with consequential back wages.
4.31. Learned advocate Mr. Patel, in support of his
submissions, has relied on the following decisions:
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Sr No. Case Citation
1 United Bank of India vs. 2007 (12) SCC 585
Tamilnadu Banks Deposit
Collectors and Anr
2 Amrit Vanaspati Co. Ltd vs. 2006 (6) SCC 325
Khem Chand and another
3 Bharat Forge Co. Ltd. vs. 1996 (4) SCC 374
A.B.Zodge and another,
4 The workmen of the Motor 1969 (2) SCC 13
Industries Co. Ltd. vs. The
Management of the Motor
Industries Co. Ltd.
5 Gujarat Steel Tubes Ltd. And 1980 (2) SCC 593
others vs. Gujarat Steel Tubes
Mazdoor Sabha and others
6 State of Uttar Pradesh and (2010) 5 SCC 783
others vs. Raj Pal Singh
7 Tata Engineering and (2001) 10 SCC 530
Locomotive Co. Ltd. vs.
Jitendra PD. Singh and Anr.
5. Per contra, learned senior advocate Mr. Joshi submits that
the Reference itself is bad in law, as the affected
workmen are only 26 in number, which is less than 100,
and therefore, the dispute would fall under Clause (3) of
the Second Schedule of the Industrial Disputes Act.
Consequently, the jurisdiction to entertain the dispute
would lie with the learned Labour Court and not the
Industrial Tribunal. It is further submitted by learned
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senior advocate Mr. Joshi that originally, the Union had
raised a dispute concerning 52 dismissed workmen vide
communication dated 24.07.2000. However, vide letter
dated 29.12.2000, the Union sought to amend the
original demand mentioned in the letter dated
27.07.2000 and restricted the scope of the dispute to
only 26 workmen, as the remaining 26 workmen had
already been reinstated by the company. This position
was accepted and acknowledged by the Assistant Labour
Commissioner, Bharuch, vide letter dated 01.01.2001.
5.1. Learned senior advocate Mr. Joshi submits that,
without examining the conciliation record, the
Conciliation Officer erroneously referred the dispute to
the learned Industrial Tribunal on the basis of the
original demand of the Union concerning 52 workmen,
and such reference was made without proper
application of mind. It is further submitted by learned
senior advocate Mr. Joshi that the Union has claimed
relief for 26 workmen who had already been reinstated
by the company in July 2000, along with all
consequential benefits. Therefore, no question arises
as to their reinstatement or entitlement to
consequential relief.
5.2. Learned senior advocate Mr. Joshi submits that in
the absence of a domestic inquiry, the employer is
entitled to justify the dismissal of the workmen by
adducing evidence. He further submits that it was
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practically and reasonably not possible to conduct an
inquiry due to the atmosphere prevailing in the
company, which was created by the Union and its
members through intense agitation, an unjustified
strike, threats, and gross mass indiscipline. The
termination of the workmen occurred under abnormal
circumstances that were beyond the control of the
management, and therefore, the company has duly
justified the dismissal before the learned Tribunal.
5.3. Learned senior advocate Mr. Joshi submits that Birla
Cellulosic (a unit of Grasim Industries Limited),
engaged in the manufacturing of viscose staple fiber,
is situated at Village Kharach and involved in the
production of pulp, caustic soda, carbon disulfide
(CS₂), sulfuric acid, and other chemicals. The company
operates a large and complex electrical installation,
including its own 15 x 2 MW power generation plant.
The manufacturing process is continuous in nature,
and the plant functions round-the-clock in three shifts,
supported by general shift employees, requiring
uninterrupted and focused attention.
5.4. Learned senior advocate Mr. Joshi submits that the
workmen joined the Union on 29.09.1999, and ever
since, industrial unrest began prevailing within the
premises of the company. The workmen stopped
performing certain tasks that they had been regularly
undertaking since the inception of the plant and
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started pressurizing the management to accept their
unjust, unfair, and illegitimate demands. Despite
assurances from the management to resolve their
grievances through negotiations, provided normalcy
was restored as it existed before 29.09.1999, the
workmen refused to cooperate and continued to
engage in illegal and unfair labour practices during
working hours.
5.5. On 19.10.1999, 36 out of 40 general shift
employees absented themselves without prior
approval, in a concerted manner, which amounted to a
strike. Though they were warned and cautioned not to
repeat such conduct, the workmen, vide
communication dated 03.11.1999, decided to avail
mass leave on 07.11.1999 and 09.11.1999.
Furthermore, by another communication dated
04.11.1999, they informed the management of their
intention to go on an indefinite strike with effect from
19.11.1999.
5.6. Realizing the seriousness of the frequent threats of
abstaining from work, which amounted to illegal and
unjustified strike action, the Assistant Labour
Commissioner, Bharuch, visited the plant on
06.11.1999 to mediate and resolve the dispute
between the Union and the management.
5.7. Learned senior advocate Mr. Joshi submits that, in
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the evening, the Union agreed to ensure and declare
that all technicians would attend their duties on
07.11.1999 and 09.11.1999, and also agreed to
withdraw their proposed strike as per the notice dated
04.11.1999. Additionally, the Union agreed to remove
the black badges that were being worn as a mark of
protest. However, despite this assurance, the Union
members subsequently absented themselves from
work, and none of the technicians reported for duty on
07.11.1999.
5.8. Learned senior advocate Mr. Joshi submits that the
technicians who were on night shift on 06.11.1999 left
their posts without waiting for their relievers to take
charge, thereby leaving the continuously operating
plant unattended. Fortunately, company executives
promptly intervened and occupied the positions of the
technicians, thereby preventing any serious
catastrophe. Therefore, the joint, coordinated, and
deliberate act of not reporting for duty on 07.11.1999
amounts to an illegal and unjustified strike, which
posed a serious risk to the safety of the plant and the
lives of the personnel.
5.9. Learned senior advocate Mr.Joshi submits that,
considering the hazards involved in the
aforementioned highly irresponsible acts committed
by the technicians, the company was compelled to
initiate disciplinary proceedings against various
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technicians involved in gross misconduct, as
enumerated under the Industrial Employment
(Standing Orders) Act.
5.10. Learned senior advocate Mr.Joshi submits that the
company had initially issued suspension notices
pending inquiry to certain workmen. However, due to
the creation of a state of fear and intimidation by the
said workmen, it became practically impossible to
conduct a fair and just domestic inquiry. Owing to
these insurmountable difficulties, the management
had no option but to dispense with the inquiry, while
reserving its right to justify the termination based on
the available material.
5.11. Furthermore, the management had requested the
terminated employees to vacate the company-
provided quarters, as they no longer held any right to
reside therein post-termination. Despite such requests,
the quarters have not been vacated to date. This
continued unauthorised occupation attracts criminal
liability under Sections 154, 156(1), and 157(1) of the
Code of Criminal Procedure, as well as applicable
provisions of the Indian Penal Code for wrongfully
withholding and trespassing upon the company's
premises.
5.12. Learned senior advocate Mr. Joshi submits that on
08.11.1999, the company required each workman, at
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the commencement of their respective shifts, to
provide an undertaking stating that they would not
resort to strike action during the shift, would ensure
normal output by performing the duties assigned to
them, and would maintain discipline.
5.13. Learned senior advocate Mr. Joshi submits that the
concerned workmen did not make any effort to obtain
a copy of the proposed undertaking, nor did they
attend the meetings where the same could have been
discussed or clarified. While certain workmen who
signed the undertaking did not raise any objection to
its contents, despite repeated requests, the remaining
technicians refused to submit the undertaking and
chose to persist with what the company considers an
illegal and unjustified strike, which continued until
20.01.2000. The company, in response to the
disruption, filed several police complaints, asserting
that the strike was not peaceful. Additionally, a
Regular Civil Suit No. 200 of 1999 was also instituted
to address the matter.
5.14. Learned senior advocate Mr. Joshi submits that out
of the 26 dismissed workmen, five were trainees at the
time of dismissal. Learned senior advocate Mr. Joshi
further submitted that an understanding was arrived
at on 20.01.2000 to withdraw the allegations of unfair
labour practice, and accordingly, 26 technicians were
reinstated based on operational requirements and
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priority.
5.15. Learned senior advocate Mr. Joshi further submits
that, as per the said understanding, it was agreed that
in respect of the remaining 52 workmen, the
management would retain the discretion to accept or
reject the recommendations made by the review
committee. The role of the committee, as defined
under the agreement dated 20.01.2000, was purely
recommendatory in nature, and the final decision was
to be taken by the company's management. Pursuant
to discussions held with the committee members and
Union representatives, the company reinstated 26
workmen out of the 52 dismissed, on 20.07.2000.
5.16. Learned senior advocate Mr. Joshi submits that
most of the dismissed workmen were placed under
suspension pending inquiry; however, instead of
awaiting the issuance of the chargesheet, they
engaged in illegal and unauthorized activities,
including pressure tactics, use of force, and issuing
threats. Consequently, it became impracticable for the
management to proceed with the issuance of
chargesheets and conduct a regular inquiry. Therefore,
in view of the exceptional and unavoidable
circumstances, and considering the overall interest of
maintaining the safety of the plant, the personnel, and
workplace discipline, the management was
constrained to dispense with the inquiry.
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5.17. Learned senior advocate Mr. Joshi submits that
another Reference has also been filed by the
petitioner-Union concerning the payment of wages for
the period from 07.11.1999 to 20.01.2001, being
Reference (IT) No.151 of 2000, which is presently
pending adjudication. He further submits that, initially,
the learned Industrial Tribunal granted interim relief
directing the payment of wages to the 26 dismissed
workmen at the rate of Rs.18,000/- per month for the
period from November 2000 to 31.03.2001. The said
order was challenged before this Hon'ble Court by way
of Special Civil Application No.3219 of 2002, and this
Court, vide order dated 06.05.2002, directed payment
of a lumpsum amount of Rs.20,000/- to each
employee.
5.18. Learned senior advocate Mr. Joshi submits that, as
per the settlement dated 20.01.2000, the role of the
committee was only to make recommendations to the
company, and the final decision was to be taken by
the company. In accordance with the said settlement,
the committee submitted its report dated 17.10.2000.
The Union, in its representation, admitted that the
terminated employees had realized their mistakes;
however, it also stated that at that stage, the Union
could not specify how many employees should or
should not be reinstated. On the other hand, the
company clearly stated that, considering the gravity of
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the misconduct committed, it would not be advisable
to reinstate the 26 workmen, as doing so would
amount to encouraging indiscipline, industrial unrest,
and embolden elements who do not respect workplace
discipline.
5.19. Learned senior advocate Mr. Joshi submits that the
company had sought permission to lead evidence
before the learned Industrial Tribunal to establish the
misconduct committed by the 26 workmen. Learned
senior advocate Mr. Joshi submits that the company
has successfully demonstrated how the petitioners,
after receiving suspension orders, had threatened
witnesses and officers, and that due to such grave
misconduct, the company was justified in dismissing
the workmen from service.
5.20. Learned senior advocate Mr. Joshi further submits
that the company has examined 10 witnesses, out of
which several are the immediate superiors of the
concerned workmen, to substantiate the charges
against the present petitioners. Learned senior
advocate Mr. Joshi submits that, with regard to the
contention raised by the petitioners regarding the
company not obtaining permission under the Factories
Act, it is submitted that if such was the case, an
appropriate complaint ought to have been filed under
Section 105 of the Factories Act. However, in the
present case, neither the workmen nor the Union has
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filed any such complaint seeking sanction from the
Inspector. Moreover, it is contended that the reliance
placed on Model Standing Order No. 32 by the
petitioners, alleging that the company continued
operations 24x7 without obtaining requisite
permissions under the Factories Act, is also
misconceived.
5.21. Learned senior advocate Mr. Joshi submits that, as
is evident from the examination of the company's
witnesses, the concerned petitioners were involved in
serious acts of misconduct, which clearly distinguished
their conduct from that of the other workmen. He
further submits that during the cross-examination of
the company's witnesses, the petitioners failed to
establish any material contradiction or inconsistency in
their testimonies. In view of the same, the learned
Industrial Tribunal has rightly concluded that the
petitioners were unable to effectively rebut or disprove
the statements made by the company's witnesses,
and accordingly, has rightly declined to grant the relief
of reinstatement.
5.22. Learned senior advocate Mr. Joshi submits that
various chapter cases were filed against the
petitioners under Sections 106 and 107 of the Code of
Criminal Procedure, and multiple complaints were
lodged at Hansot and Kosamba Police Stations.
Therefore, no interference is warranted with the
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impugned award. He further submits that the
respondent-company operates a continuous process
industry, and it has been the policy and established
practice of the company to require certain technicians
to remain present even on public holidays to ensure
uninterrupted operations. Since the inception of the
company, workmen have consistently worked on
public holidays in accordance with operational
requirements. However, after the formation of the
Union, the workmen were allegedly instigated to
abstain from duty en masse on public holidays, despite
being fully aware that such acts could endanger the
lives of company employees and residents of nearby
villages, as the manufacturing process involves
hazardous and sensitive chemicals.
5.23. Learned senior advocate Mr. Joshi submits that the
petitioners were well aware of the potential
consequences of a sudden stoppage of work and, in
anticipation of an industrial incident, had even moved
their families out of the company colony prior to the
strike observed on 07.11.1999. This, according to
learned senior advocate Mr.Joshi, demonstrates the
petitioners' complete disregard for the safety and
welfare of others, while prioritizing the safety of their
own families. Such conduct, he argues, cannot be
condoned under any circumstances, as it placed the
company, its employees, and the surrounding
communities at significant risk.
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5.24. Learned senior advocate Mr. Joshi submits that
insubordination strikes at the very root of the
employer-employee relationship. If an employee fails
to comply with the legitimate orders of the
management and is nevertheless permitted to
continue in service, it would completely undermine
and vitiate the discipline and working environment of
the industry. Learned senior advocate Mr. Joshi further
submits that such conduct fosters indiscipline and
insubordination, making it impossible for the industry
to function efficiently. Reinstating such employees,
despite their defiance, would set a dangerous
precedent, potentially encouraging others to engage in
similar conduct without fear of consequences or
termination.
5.25. Learned senior advocate Mr. Joshi submits that, as
far as the contention regarding non-production of
documents demanded by the Union is concerned, it is
submitted that the Union had asked for several
documents, including some that were irrelevant. The
learned Tribunal, vide its order passed below Exhibit
73, directed the management to produce specific
documents, namely the wage register for the period
from September 1999 to January 2000, the punching
cards for the months of October and November, and
the license obtained under the Factories Act. In
compliance with the said order, the management duly
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produced all the documents as directed by the learned
Tribunal.
5.26. Learned senior advocate Mr. Joshi submits that, so
far as the issue of back wages is concerned, it was
necessary for the workmen to specifically plead and
prove their unemployment with the aid of cogent
evidence. Learned senior advocate Mr. Joshi submits
that back wages cannot be claimed as an automatic or
consequential right merely upon setting aside the
termination order. In the absence of such proof, the
learned Tribunal has not committed any error in
denying the relief of back wages, and therefore, the
petition is required to be dismissed.
5.27. It is submitted by learned senior advocate Mr. Joshi
that initially, the Union raised a dispute concerning 52
dismissed workmen. However, after a series of
meetings between the Union leaders, including the
President of the Union, the Deputy Labour
Commissioner, and the Vice President of the Company,
26 workmen were reinstated by the Company. While
reinstating these 26 workmen, serious consideration
was given to the gravity of their misconduct and their
level of involvement in creating serious industrial
unrest, including participation in an illegal and
unjustified strike that lasted for two and a half months,
causing significant hardship and substantial financial
losses.
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5.28. The remaining 26 dismissed workmen, who are the
subject of the present petition, were found guilty of
various serious and gross acts of misconduct. These
included: (i) stopping work themselves and compelling
or threatening others to do the same, (ii) repeatedly
leaving their respective workplaces without prior
permission from their superiors, (iii) inciting and
threatening fellow workers, including disturbing those
working in other departments, (iv) wilfully disobeying
lawful orders of their superiors, (v) compelling general
shift workers to go on an illegal and unjustified strike
on 19.10.1999, and (vi) participating in a go-slow,
refusing to work overtime, engaging in mass
indiscipline, and continuing with the illegal and
unjustified strike from 07.11.1999 to 20.01.2000,
along with acts of sabotage and other unfair labour
practices near the Company's premises.
5.29. It is further submitted by learned senior advocate
Mr. Joshi that these workmen even disregarded the
injunction order passed by the learned Civil Court,
Ankleshwar, in Regular Civil Suit No.200 of 1999.
5.30. On 20.01.2000, at the intervention of the
Commissioner of Labour, State of Gujarat, Shri Sujit
Gulati, a meeting was organized between the
representatives of the Company and the office bearers
of the Union, during which a Memorandum of
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Understanding (MoU) was executed. As per the terms
of the said MoU, out of 81 dismissed workmen, 29
were permitted to resume their duties with effect from
24.01.2000. Regarding the remaining 52 dismissed
workmen, it was decided that they would be kept out
of service temporarily, and in this regard, a committee
was constituted comprising the Vice President (HR),
the President of the Union, Shri Mukesh Rana, and the
Deputy Labour Commissioner, Mr.Raval. The
committee was entrusted with the responsibility to
make recommendations, and the final decision with
respect to the said 52 workmen was to be taken by the
management after considering the committee's
advice. In the meantime, as a humanitarian measure,
the said 52 workmen were paid an ex-gratia amount of
Rs.1,800/- per month until a final decision was taken.
5.31. Thereafter, the Company took a decision to re-
employ 26 workmen out of the 52 concerned
workmen, and accordingly, a communication was
addressed by the Company to the Deputy Labour
Commissioner, Vadodara, on 01.08.2000. The
remaining 26 dismissed workmen, who are the
petitioners before this Hon'ble Court, were identified
as the key instigators and masterminds behind the
serious incidents of industrial unrest, indiscipline, and
gross misconduct. Hence, the Company decided not to
reinstate them in employment. It is also pertinent to
note that the 26 workmen who were reinstated had, by
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their respective letters dated 20.07.2000 addressed to
the Company, furnished specific undertakings stating
that they would refrain from committing any such
misconduct in the future.
5.32. It is further submitted by learned senior advocate
Mr. Joshi that the learned Industrial Tribunal has
adjudicated the industrial dispute concerning the 26
workmen on merits, after a detailed and elaborate
examination of voluminous oral and documentary
evidence. The learned Tribunal, while exercising its
powers under Section 11A of the Industrial Disputes
Act, 1947, has passed the impugned award by
converting the order of dismissal into an order of
discharge and has awarded compensation, as
mentioned in the opening part of the judgment. These
26 workmen were identified as the principal
instigators, having played a leading and mastermind
role in orchestrating the events that severely affected
the company's discipline, productivity, safety of the
plant, industrial harmony, and resulted in substantial
financial losses.
5.33. Learned senior advocate Mr. Joshi has relied on the
following decisions in support of his arguments:
Sr No. Case Citation
1 State of Uttarakhand and ors. (2021) 3 SCC 108
vs. Sureshwati,
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2 Firestone Tire and Rubber AIR 1981 SC 1626
Company of India (P) Limited
versus Workmen employed,
represented by Firestone Tyre
Employees' Union
3 Union of India vs. P. (2015) 2 SCC 610
Gunasekaran
4 Yoginder Sharma vs. Mangt of 2013 LawSuit
Arvali Leasing Ltd (Del) 1125
5.34. In that background, it was submitted by the learned
senior advocate Mr.Joshi to dismiss the petition by
upholding the order passed by the learned Tribunal.
6. Having considered the arguments advanced at length by
the learned advocates for the respective parties and on
perusing the record and proceedings of the learned
Tribunal, it is evident that the dispute which was raised
by the Union was referred to the learned Tribunal for
deciding the following terms:
"Demand No. 1:- Whether Mr. Prakash Ramanlal
Haldarwala and 25 others directly terminated by the
company (As per Schedule-I and II), should immediately
be reinstated on duty by considering that service as
continuous? And whether they shall be paid full salary
including all the rights and benefits for the period until
they are reinstated on duty?
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Demand No. 2:- Whether the terminated 26 workers (as
per Schedule-II), shall be paid total back wages with
interest at the rate of 24% from the date of their
termination till they are reinstated on duty? And
whether they shall be also paid other rights and
benefits received by their remaining co-workers?
Demand No. 3:- Whether the terminated workers (as per
Schedule-II) be paid total salary, instead of Rs. 1,800/-
being paid to the workers, until they are reinstated on
duty or until the decision of sub-committee is arrived at
as per the 'Settlement Agreement' executed on
20/1/2000?"
7. It is an undisputed fact that within a period of 4 to 5 days
from the date of suspension, the order of termination
came to be passed by the management without holding
any departmental inquiry. The explanation offered by the
management for not conducting the inquiry is that, after
receiving the suspension orders, the concerned workmen
allegedly started threatening the office bearers of the
company, indulged in anarchic acts, and were involved in
incidents of sabotage, which constrained the
management to take immediate steps of termination
without following the principles of natural justice.
However, before the learned Tribunal, the employer
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sought permission to justify the charges by leading
evidence, and the learned Tribunal accordingly granted
such permission.
8. At this stage, it is pertinent to refer to the decision
rendered by the Hon'ble Apex Court in the case of State
of Uttarakhand and Others (supra), wherein the facts
before the Hon'ble Court pertained to an Assistant
Teacher who was charged with manipulation and
tampering of the date of appointment in the school
records. In that context, the Hon'ble Supreme Court, after
referring to its earlier decisions in Workmen of Motipur
Sugar Factory Pvt. Ltd. vs. Motipur Sugar Factory,
reported in AIR 1962 SC 1803; Delhi Cloth & General
Mills Co. vs. Ludh Budh Singh, reported in (1972) 1
SCC 595; and Workmen of Messrs Firestone Tyre &
Rubber Company of India vs. Management and
Others, reported in (1973) 1 SCC 813, held that in
cases where a domestic inquiry has not been conducted
by the employer prior to dismissal or discharge of a
workman, the employer is entitled to justify such action
by leading evidence before the Labour Court. It was
further held that the Labour Court has jurisdiction to
satisfy itself, based on the evidence adduced, as to the
justification of the order of discharge or dismissal.
9. In this background, if one examines the evidence
adduced by both parties along with the settled principles
of law, it is well established that the standard of proof
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required in departmental or disciplinary proceedings is
not that of proof beyond reasonable doubt, but that of
the preponderance of probabilities. To substantiate the
charges levelled against the 26 dismissed workmen, the
respondent-company examined 10 witnesses and also
produced various documentary evidences.
9.1. The first witness examined by the respondent-
company was Mr. Chandrakant Kantilal Panchal, who
was serving as Manager in the Human Resources
Department. In his deposition before the learned
Tribunal, he stated that on 29.09.1999, after the
formation of the Union, the technicians who were
regularly discharging their duties had stopped
performing the work of loading goods into the
machines, cleaning the premises, loading goods into
the Alkchem machines, fiber machines, and unloading
sulphur from the machines. He specifically named the
employees involved, including Mr. N.S. Patel, Mr.
Balwant Jadhav, Mr. Vikas Patel, Mr. Shahbuddin
Shaikh, Mr. Jayendra Kathwadia, Mr. Manish Kosada,
Mr. Yogendra Parmar, Mr. Jayanti Contractor, and Mr.
Bahadur Solanki.
9.2. He further deposed that these workmen were
instigating other employees not to work properly and
had threatened them against attending duty on public
holidays, including the State holiday of Dashera and on
07.11.1999 and 09.11.1999. He also stated that on
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07.11.1999, all the technicians left their workplace
without waiting for their relievers, thereby leaving the
plant in an operational state without supervision. As
per his testimony, efforts were made to persuade the
workmen to resume duties, and letters were
addressed to the Union, the Assistant Labour
Commissioner, the Factory Inspector, and the Police
Inspector of Hansot Police Station to bring the situation
to their attention.
10. As per the deposition of this witness, it is evident that
all the concerned workmen had created a tense
atmosphere, leading to industrial unrest and acted in a
highly irresponsible manner. The witness elaborated upon
the nature of duties assigned and further stated that the
workmen were insisting upon reinstatement of
employees whose services were terminated between
29.09.1999 and 04.11.1999, while also issuing threats to
the company officials. He deposed that on 04.11.1999,
the company had obtained an interim injunction from the
learned Civil Court, which was not complied with by the
workmen. He further stated that there were incidents of
assault on Engineer Anil, Prakashbhai, and contractor
Rajgopal Shrivastava, for which police complaints were
filed.
10.1. It was further deposed that Mr. N.S. Patel and other
leading members had shifted their families from the
company quarters prior to 07.11.1999, anticipating
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untoward incidents, thereby leaving the operational
plant in an unattended condition. According to the
witness, the other employees were also restrained
from entering the company premises, were addressed
in abusive and undisciplined language, and that the
suspended employees had refused to accept their
suspension orders issued during the pendency of
inquiry. He also confirmed that complaints regarding
breach of the interim injunction were filed before the
Civil Court, as well as complaints lodged with Hansot
and Kosamba Police Stations.
10.2. The witness further stated that the Union had
printed and circulated pamphlets containing
allegations against the company, and the said
pamphlet was produced and exhibited during his
testimony. Additionally, he produced a copy of Civil
Suit No.204 of 1999 filed by the Union before the
learned Civil Court at Ankleshwar. He named all 26
employees as responsible for gross misconduct and for
creating an atmosphere of fear and unrest within the
company premises.
10.3. During cross-examination, it was revealed that the
company operates on three shifts--07:00 a.m. to
03:00 p.m., 03:00 p.m. to 11:00 p.m., and 11:00 p.m.
to 07:00 a.m. General shift employees are primarily
assigned to planning, maintenance, and specific
project work. It was also confirmed that some plants
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are automated while others are manually operated,
and the manufacturing process involves inflammable
substances such as those used in the production of
viscose, necessitating round-the-clock (24x7)
operations.
10.4. It further came out during cross-examination that
07.11.1999 was Diwali and 09.11.1999 was New Year,
and that the Model Standing Orders were applicable to
the company. From 08.11.1999 to 20.11.1999, the
workmen were not permitted entry at the gate due to
their refusal to submit the undertaking sought by the
company. It was also revealed that workmen
scheduled to work on public holidays were entitled to
double salary, especially those listed on the notice
board and involved in the production department. It
was also admitted that from 07.11.1999 to
20.01.2000, police bandobast had been arranged due
to the prevailing situation. Notably, all police
complaints were later withdrawn upon the settlement
between the parties.
11. Similar was the nature of the evidence tendered by the
other witnesses examined by the management.
Collectively, their depositions established that the
concerned workmen were involved in serious acts of
misconduct, resulting in a situation of gross mass
indiscipline that compelled the management to issue
orders of termination. It also emerges from their evidence
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that the respondent-company is engaged in the
manufacturing of viscose staple fiber, a process which
involves the use of hazardous chemicals such as sulfuric
acid, carbon disulfide (CS₂), and coptic pulp. The
company operates its own energy-generating power plant
with a capacity of 15×2 MW. Considering that the
manufacturing process is of a continuous nature, the
plant operates round-the-clock in three shifts, supported
by general shift employees, thereby necessitating
uninterrupted and vigilant supervision at all times.
12. Immediately upon the formation of the Union on
29.09.1999, industrial unrest began to surface. The
regular duties that had been performed by the workmen
since the inception of the plant were abruptly denied by
them. On 19.10.1999, which was the festival of Dussehra,
36 shift technicians remained absent without prior
approval. Thereafter, communications were issued,
including a notice dated 03.11.1999 indicating that the
workmen intended to observe a mass holiday on
07.11.1999 (Diwali) and 09.11.1999 (New Year). Further,
by way of a letter dated 04.11.1999, the Union
communicated its decision to go on an indefinite strike
with effect from 19.11.1999.
12.1. Upon being informed of this conduct, the Assistant
Labour Commissioner visited the plant on 06.11.1999,
and during the visit, an assurance was given by the
Union to withdraw the strike notice dated 04.11.1999
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and to ensure attendance on 07.11.1999 and
09.11.1999. However, on the night of 06.11.1999,
technicians in the night shift left the continuously
operating plant unattended without waiting for their
relievers. Subsequently, on 07.11.1999, all technicians
remained absent.
12.2. Chapter cases were filed by both parties, which
were ultimately withdrawn pursuant to a settlement
arrived at on 20.01.2000. As per the terms of the
settlement, out of 81 dismissed workmen, 29 were
permitted to resume duties with effect from
dismissed workmen, it was decided to constitute a
committee comprising the Vice President (HR), the
President of the Union, and the Deputy Labour
Commissioner, to provide suggestions to the
management for taking a final decision. It was further
agreed that all 52 dismissed workmen would be paid
Rs.18,000/- per month, which amount was
subsequently enhanced to a lump sum payment of
Rs.20,000/- in view of the order passed by this Hon'ble
Court.
12.3. Thereafter, the company, on the basis of the report
submitted by the committee, took a decision to
reemploy 26 workmen out of the 52 concerned
workmen with effect from 20.07.2000. These
reemployed workmen also submitted undertakings
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stating that they would not commit any such
misconduct in the future after their reemployment. It
further emerges that the strike, which lasted for
approximately two and a half months, caused
considerable hardship and resulted in substantial
financial loss to the company. From the evidence of
the company's witnesses, it is evident that all 26
dismissed workmen had specific roles attributed to
them in leading and instigating mass indiscipline. It
also appears from the record that out of the 26
dismissed workmen, 5 were serving as trainees.
Accordingly, they are entitled to compensation as per
their designation and in terms of the order passed by
the learned Court.
12.4. The list of workmen, who are the petitioners before
this Court, along with details pertaining to their length
of service, designation, and respective departments as
emerging from the record, is set out hereinbelow:
Sr.No. Name of the Date of Post Period
Petitioner/Workmen appointment (Approx.)
1 Naresh Shantilal Patel 21.11.1997 Technician 1 year, 11
(CS2/Acid months, 18
Department) days
2 Balwant B. Jadhav 01.11.1997 Technician 2 years, 7 days
(Engineering
Department)
3 Vikas Rasiklal Patel 05.11.1997 Technician 2 years, 3 days
(Engineering
Department)
4 Shahbuddin Latifuddin 08.11.1997 Technician 2 years
Sheikh (Spinning
Department)
5 Manish Pradeepbhai 28.10.1997 Trainee 2 years, 11
Joshi Technician days
(Viscose
Department)
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6 Vyomesh Govind Lal 17.04.1998 Trainee 1 year, 6
Mehta Technician months, 22
(Viscose days
Department)
7 Alpesh Jamnadas 20.11.1997 Trainee 1 year, 11
Hingrajia Technician months, 19
(Viscose days
Department)
8 Chandulal Dahyabhai 28.10.1997 Trainee 2 years, 11
Tank Technician days
(Viscose
Department)
9 Mahesh Jashrajbhai 18.04.1998 Trainee 6 months 21
Chaudhary Technician days
(Spinning
Department)
10 Jagdish Dahyabhai 12.09.1997 Technician 2 years, 2
Parmar (Energy Centre months
Department)
11 Mahesh Shantilal Patel 20.10.1997 Technician 2 years, 1
(Spinning month, 6 Days
Department)
12 Pushpendra 03.10.1997 Technician 2 years, 1
NarendraSinh Maheeda (Spinning month, 5 days
Department)
13 Yogendra Bahadur Sinh 14.01.1998 Technician 1 year, 9
Parmar (Spinning months, 25
Department) Days
14 Mohd.Zaheed Gulam 15.03.1998 Technician 1 year, 7
Ahmed Sheikh (Spinning months, 24
Department) days
15 Bipin Kuberbhai Patel 20.03.1998 Technician 1 year, 7
(Spinning months, 19
Department) days
16 Jayendra Daulatbhai 03.10.1997 Technician 2 years, 1
Kathwadia (Viscose months, 05
Department) days
17 Amit Ramdas Shah 02.04.1998 Technician 1 year, 7
(Viscose months, 06
Department) days
18 Akshay Rajan Bhai 23.03.1998 Technician 1 year, 7
Pancholi (Viscose months, 16
Department) days
19 Jayanti Dalpatbhai 01.12.1997 Technician 1 year, 11
Contractor (Engineering months, 07
Department) days
20 Bahadur Sanabhai 25.04.1998 Technician 1 year, 6
Solanki (Engineering months, 14
Department) days
21 Manish Gemalsinh 05.03.1998 Technician 1 year, 8
Kodasa (Engineering months, 03
Department) days
22 Ganpat Ravjibhai Gohel 01.04.1998 Technician 1 year, 7
(CS2/Acid months, 7 days
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Department)
23 Haresh JagjivanDas 04.11.1998 Technician 1 year, 7
Modi (CS2/Acid months
Department)
24 Ajeet Narendra Sinh 01.01.1998 Technician 1 year, 10
Kodasa (WTP/ETP months, 7 days
Department)
25 Praveenbhai Prabhubhai 04.02.1998 Technician 1 year, 9
Patel (WTP/ETP months, 4 days
Department)
26 Rajesh Vikram Sinh 03.12.1997 Technician 1 year, 11
Kher (Firefighting months, 05
Department) days
12.5. As against the above, if the Court examines the
evidence adduced by the workmen, 27 of whom have
deposed in support of their case, it emerges that even
a delay of one minute in reporting to duty would result
in a deduction from salary under the category of Leave
Without Pay (LWP). According to the leave card
produced at Exhibit 307, 19.10.1999 was declared a
paid holiday on account of Dussehra. The evidence
further suggests that, as a routine practice, the
company declares paid holidays for the entire calendar
year in the month of January. It is the case of the
workmen that an illegal lockout was declared by the
company on 08.11.1999, and within a period of four to
five days from the date of suspension, orders of
termination were issued. The workmen have also
alleged a violation of Section 9A of the Industrial
Disputes Act, 1947 by the employer.
12.6. It is also the allegation of the workmen that the
respondent-company failed to prove the charges of
misconduct against them. In their deposition, it has
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been specifically stated that no concrete evidence was
led by the company to substantiate the alleged
misconduct. It is further contended that the company
adopted a discriminatory approach by reinstating
other similarly situated employees while excluding the
present 26 petitioners, thereby violating the principles
of equality and fairness. As per the deposition, the
deponent received an amount of Rs.30,000/- pursuant
to the order passed by the High Court, in addition to a
monthly payment of Rs.1,800/- for a period of six
months from the respondent-company. All 26
workmen have deposed before the learned Tribunal in
a similar manner.
13. This Court finds from the record that the respondent-
company suspended three members of the Union on
29.09.1999 on the ground that they repeatedly refused to
carry out the work assigned by their superiors. It also
appears that, vide communication dated 04.10.1999
(accepted below Exhibit 250), the Union raised various
demands and issued a warning that if their demands
were not satisfactorily addressed within two days, the
workmen would commence wearing black badges as a
form of protest.
13.1. Notices dated 07.10.1999 (Exhibits 120 to 124)
were issued by the company, directing all workmen to
remove the black badges and refrain from adopting
the go-slow approach allegedly under the instigation of
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Union leaders. It was further directed that the work,
which had reportedly been stopped for the last 8 to 10
days, should be resumed immediately.
13.2. On 11.10.1999, the Union submitted a charter of
demands claiming 20% bonus for the years 1997-98
and 1998-99. As per Exhibit 125, a notice dated
18.10.1999 indicates that the vehicles of two company
officials were damaged within the company premises.
Additionally, Exhibits 2 to 9 and Exhibit 230 pertain to
the declaration of paid holidays on the occasion of
Dashera and also include instructions for all workmen
engaged in shift duties to report for work as per their
scheduled shift timings.
13.3. The department-wise notice displaying the names
of the general shift technicians, who were called upon
by the respective Department Heads to attend duty on
the paid holiday of Dashera, is produced on record
below Exhibit 232. Furthermore, Exhibit 233 is a letter
dated 23.10.1999 issued to the workmen who were
allegedly instigating other technicians not to comply
with the instructions issued by their superiors.
13.4. The list of sabotage activities allegedly carried out
by the technicians on 29.10.1999 is produced on
record below Exhibit 113. The said document indicates
multiple incidents of disruption, including stoppage of
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the sulphur transfer plant in the CS2 and Acid
Departments, outbreak of fire in the CS2 and Acid
Departments, deliberate reduction in the speed of CS2
operations and the sulphur scoop in the Acid
Department, misplacement of valves in the Viscose
Department (Simplex section), damage to the
emergency switch in the Viscose Department, opening
of the motor terminal plate of Zentheter 3 at the
hopper gate, removal of fuse in Hopper 3 of the Spring
Department, halting of the dryer feeder isolator,
breakage of the notice board glass, damage to the
public address system in the Spinning Department,
tampering with the dryer section of the Spinning
Department, and removal of the Weldon machine from
the WDP Department.
13.5. Various communications were addressed by the
company to the President of the Union, the Deputy
Labour Commissioner, the Assistant Labour
Commissioner, the Collector of Bharuch, and the
Inspector of Factories, which are exhibited on record
below Exhibits 114 to 119. These documents narrate
the incidents of sabotage that allegedly occurred in
the company subsequent to 29.09.1999, the date on
which the Union was formed.
13.6. The request made by the management to all
technicians to restore normalcy in the establishment is
exhibited below Exhibit 133, and further request to
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immediately resume routine duties is placed on record
below Exhibit 234. A notice dated 03.11.1999,
exhibited below Exhibit 64, was issued declaring that
07.11.1999 (Diwali) and 09.11.1999 (New Year) were
paid holidays, and all employees would be entitled to
enjoy the same. However, the Union subsequently
issued a strike notice effective from 19.11.1999, which
is produced below Exhibit 65.
13.7. Exhibit 139 contains a list of technicians from
various departments, Workshop, CS2/Acid, WD/ETP,
Viscose, Auxiliary Engineering, and Laboratory--who
were required to report for duty on the aforesaid paid
holidays. Exhibit 136 reflects the minutes of a meeting
indicating that although an initial undertaking had
been given to work on 07.11.1999 and 09.11.1999 and
to withdraw the strike notice dated 04.11.1999, the
workmen subsequently reneged on the said assurance.
13.8. A notice was also issued to Mr. Pravinbhai Patel,
produced below Exhibit 140, for leaving his workplace
without waiting for his reliever on 07.11.1999. Similar
notices were issued to other night shift technicians.
Communications addressed to various police stations,
documenting the situation, are produced from Exhibit
77 onwards.
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13.9. Furthermore, the company produced a letter
addressed to the parents of the technicians on
11.11.1999 (available at page 2905 of the record and
proceedings), apprising them of the misconduct and
the irresponsible act of leaving a continuously
operating plant in an unattended condition. It also
emerges from the record that the initial demands
raised pertained to the 26 dismissed workmen.
14. This Court has referred the decisions relied by both the
parties, which are as under:
14.1. As per the decision rendered by the Apex Court in
the case of United Bank of India (supra) wherein
after referring the decision of Workmen of Motipur
Sugar Factory (Private) Limited v. Motipur Sugar
Factory, reported in AIR 1958 SC 130 as well as Delhi
Cloth and General Mills Co.Vs. Ludh Budh Singh,
reported in 1972 1 SCC 595 it is held that, in the
absence of any reference to misconduct in the
termination order, there was no justification for the
Tribunal to permit the employer to adduce evidence. It
is further held that the order of the Division Bench of
the High Court, which held that in the absence of any
reference to misconduct in the termination order there
was no justification for the Tribunal to permit the
employer to produce documents to justify the
termination, was not sustainable. It is also observed
that the grant of erroneous permission to lead
evidence and the absence of acceptable evidence are
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conceptually distinct issues.
14.2. The Apex Court in the case of Amrit Vanaspati
Co. Ltd. (supra) wherein it is held that even if no
inquiry has been held by the employer or the inquiry
conducted is found to be defective, the Tribunal, in
order to satisfy itself about the legality and validity of
the order of termination, is required to afford an
opportunity to both the employer and the employee to
adduce evidence before it. It is open to the employer
to lead evidence for the first time to justify its action,
and it is equally open to the employee to adduce
evidence in rebuttal.
14.3. The Apex Court in the case of Bharat Forge Co.
Ltd. (supra) wherein it is held that a domestic inquiry
may be vitiated either due to non-compliance with the
principles of natural justice or on account of perversity
in the findings. Any disciplinary action taken on the
basis of such a vitiated inquiry does not stand on a
higher footing than disciplinary action taken without
holding any inquiry at all.
14.4. The Apex Court in the case of Workmen of Motor
Industries Co. Ltd. (supra) wherein it is held that
the strike was in relation to the suspension of one of
the workmen pending a domestic inquiry against him,
which was a matter not covered by the settlement in
question. Accordingly, it was not a strike illegal under
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Section 24 read with Section 23(c) of the Act.
However, since the strike was in contravention of
clause (5) of the said settlement, which was binding on
the workmen concerned and was in force at the
relevant time, it was punishable under Section 29 and
therefore rendered illegal within the meaning of that
provision.
14.5. The Apex Court in the case of Raj Pal Singh
(supra) wherein it is held that different punishment
for identical charges, delinquency and incident on the
same day, unsustainability when charges are same
and identical in relation to one and the same incident,
to deal with the delinquents differently in the award of
punishment would be discriminatory.
14.6. The Apex Court in the case of Tata Engineering
(supra), wherein the Apex Court upheld the order
passed by the High Court granting lump sum
compensation of Rs.50,000/-, holding that the
dismissal was not justified. However, instead of
granting the relief of reinstatement with full back
wages, the compensation was awarded as an
alternative relief.
14.7. The Apex Court in the case of Sureshwati (supra),
wherein it is held that when the employer fails to hold
an inquiry before dismissal or discharge, he can justify
his action by leading evidence before the Labour
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Court, and the Labour Court has jurisdiction to satisfy
itself, on the basis of the evidence adduced, as to the
justifiability of the order of discharge or dismissal.
14.8. The Apex Court in the case of Firestone Tire and
Rubber Company of India (P) Limited (supra)
wherein it is held that in case where chargesheet is
vague or improper, it must be held that there has been
no proper inquiry. In such situation a Tribunal has to
ask the parties to lead evidence and decide the
dispute on merits.
14.9. The Apex Court in the case of P. Gunasekaran
(supra), wherein it has been held that the High Court,
while exercising its powers under Articles 226 and 227
of the Constitution of India, cannot venture into a re-
appreciation of evidence or interfere with the
conclusions arrived at in the inquiry proceedings if the
same have been conducted in accordance with law. It
is further held that the Court cannot examine the
reliability or adequacy of the evidence, or interfere
merely because there may be an error of fact,
however grave it may be, provided there is some legal
evidence on which the findings are based. The Court is
also not to interfere with the proportionality of
punishment unless it shocks the conscience of the
Court. It is further held that the scope of judicial review
is confined to examining whether the inquiry was held
by a competent authority in accordance with the
procedure established by law and the principles of
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natural justice; whether irrelevant or extraneous
considerations, or the exclusion of admissible and
material evidence, or the inclusion of inadmissible
evidence, have influenced the decision rendering it
vulnerable. It is further held that interference is
warranted only where the finding is wholly arbitrary
and capricious, based on no evidence, or such that no
reasonable person could have arrived at it.
14.10. The Apex Court in the case of Yoginder
Sharma (supra) wherein it is held that in a situation
where no domestic inquiry is held at all and the
delinquent workman is punished by the management
without conducting such an inquiry, but is either later
or simultaneously made aware of the charges against
him, the management consciously takes the decision
that, in the event the workman raises an industrial
dispute, it would have to establish the charges before
the Industrial Adjudicator by leading evidence. By
straightaway taking disciplinary action against the
delinquent workman without holding a domestic
inquiry, the management thereby conveys its
willingness to establish the charges independently
before the Industrial Adjudicator. In such a scenario,
the scope of inquiry before the Industrial Adjudicator is
much broader, as the Industrial Adjudicator is required
to decide for itself whether or not the charges are
established by the management.
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14.11. The Apex Court in the case of Gujarat Steel
Tubes Ltd. (supra), wherein it is held that the
Tribunal is entitled to ascertain the true nature of the
termination order whether it is punitive or not. In this
regard, the form or label of the order is not decisive,
and the Court can lift the veil to discern its real
character. The substance, not the semblance, governs
the decision. What is decisive is the actual reason for
the discharge, not the strategy of avoiding an inquiry
or the clever omission of stigmatizing language. If the
true basis of the termination is not misconduct, the
order stands saved.
14.12. The Apex Court in the case of Bharti Airtel Ltd.
v. A.S. Raghavendra, reported in (2024) 6 SCC 418
wherein it is held that a person a person, in the
employment of any company, cannot dictate terms of
his employment to his employer. He has channels of
venting her/his grievances.
15. Upon an overall consideration of the evidence
discussed and all decisions referred hereinabove, it
clearly emerges that the learned Tribunal has adjudicated
the dispute concerning 26 workmen after a detailed
evaluation of the material placed on record. It further
transpires that between 1997 and September 1999, there
prevailed industrial peace and harmony among the
workmen and management However, immediately upon
the formation of the Union, a phase of industrial unrest
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commenced.
15.1. The plant in question operates through a continuous
manufacturing process, and the technicians involved
are required to perform their duties strictly in
accordance with the directions issued by the
management. Instances of mass absenteeism posed a
grave risk of explosion, thereby endangering human
life and plant safety. The evidence on record indicates
that, apprehending such danger, certain workmen
even went to the extent of relocating their families.
15.2. This unrest persisted for over two and a half
months. The petitioners, being the dismissed
workmen, were found to have engaged in gross acts of
misconduct. These included instigating work
stoppages, coercing fellow workmen to act or refrain
from acting, abandoning critical workstations during
active shifts, wilfully disobeying instructions issued by
superiors, issuing threats, participating in or organizing
illegal strikes, and committing acts of sabotage.
16. From the evidence placed on record, it emerges that
the petitioner had staged the strike and also incited other
employees to join. The acts of misconduct which have
been proved namely, striking or stopping work, inciting
riotous and disorderly behavior, and loitering in the
company's premises demonstrate active participation on
the part of the petitioner. The reasons assigned by the
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learned Court clearly indicate that the incitement,
intimidation, and riotous disorderly conduct were grave in
nature. Accordingly, this Court does not find any merit in
the contention that the management discriminated
against the petitioner, in comparison to the other
employees, by dismissing him with an object of
victimisation. The evidence discloses that the petitioner
was at the forefront in leading the strike and in
instigating other workmen to join, and that he had also
threatened the officials of the respondent-management.
In these circumstances, the management cannot be
faulted, nor can its action be said to be discriminatory.
17. In the opinion of this Court, the workmen had not
completed even two years of service and had
nevertheless involved themselves in activities of serious
misconduct, as established by the evidence adduced
before the learned Tribunal. The management has
successfully proved the misconduct committed during the
period from 29.09.1999 to 07.11.1999 and even
thereafter.
18. In view of the above, this Court is of the considered
opinion that the management has placed sufficient
material on record to justify its disciplinary action. The
learned Tribunal, having rightly appreciated the
evidence, has correctly declined the relief of
reinstatement and consequential benefits to the
petitioner workmen. Given the short tenure of service,
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the learned Tribunal has rightly exercised its discretion in
awarding lump sum compensation by converting the
order of dismissal into one of discharge. Therefore, this
Court finds no error or perversity in the impugned award,
and the petition, being devoid of merit, deserves to be
dismissed.
19. Accordingly, the petition stands dismissed. No order as
to costs. Rule is discharged.
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2024 In
R/SPECIAL CIVIL APPLICATION NO. 13493 of 2004
In view of the judgment rendered in the main petition,
the present Civil Application does not survive and stands
disposed of accordingly.
(M. K. THAKKER,J)
M.M.MIRZA
