Gujarat High Court
Gujarat State Road Transport ... vs Chaudhary Popatbhai Revabhai on 25 November, 2003
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Heard learned advocate Mr.A.M.Dagali on behalf of the petitioner Corporation and learned Advocate Mr.Bipin I. Mehta for respondent workman.
2. In the present petition, the petitioner has challenged the award passed by the labour court, Kalol in Reference No.92 / 1999 dated 12th November, 2002 wherein the labour court has set aside the termination order and granted reinstatement with continuity of service without any backwages of the interim period.
This Court has issued Rule returnable on 10th September, 2003 and pending petition, granted interim relief in terms of Paragraph 10[C] and service of Rule waived by the learned advocate Mr.Bipin Mehta on behalf of the respondent workman vide order dated 8th August, 2003.
3. Learned advocate Mr.Dagali for the petitioner Corporation has submitted that on 3rd June, 1994 during the course of employment when the respondent workman was on duty as driver on route from Vadnagar to Mehsana, near one village of Mehsana, the accident occurred due to negligence of the respondent workman. On the basis of the said accident, considering the misconduct, the S.T.Corporation has initiated departmental inquiry and ultimately after completion of the departmental inquiry, the Corporation has imposed punishment by order dated 3rd May, 1996 awarding punishment of stoppage of one increment without cumulative effect, against which, an appeal was also filed by the respondent which also came to be rejected by the appellate authority.
4. Learned advocate Mr.Dagali for the petitioner has submitted that in respect of the very incident, criminal complaint was lodged against the respondent workman which ultimately resulted into conviction by the competent Court and that conviction has been upheld upto this Court. Thereafter, the petitioner Corporation has served show cause notice dated 18th November, 1998 to the respondent workman calling upon an explanation as to why his services should not be terminated under the Service Regulation 81 of the G.S.R.T.C.. Thereafter, on 4th December, 1998, services of the respondent workman came to be terminated while exercising the powers under Service Regulation 81 by the appointing authority. That order was challenged by the respondent workman before the labour court while raising the industrial dispute which referred for adjudication on 22nd February, 1999. Learned advocate Mr.Dagali has submitted that under Service Regulation 81 of the Corporation, the Corporation having powers to terminate services of any employee in case if conviction is established and therefore, the petitioner corporation has rightly passed the order of termination against the respondent workman and therefore, the labour court has committed gross error in interfering with such administrative order. Learned advocate Mr.Dagali has also pointed out that reasonable opportunity was given to the workman before terminating services under Service Regulation 81 and show cause notice was served on the respondent workman before terminating services and after considering the reply submitted by the respondent workman as well as seriousness of the offence, the appointing authority has passed the order of termination which is legal and valid. He also submitted that the labour court having no jurisdiction to interfere with such termination order passed by the appointing authority and therefore also, the labour court has committed gross error in interfering with the said order of terminating service of the workman. He also referred page-9 and pointed out that conviction order confirmed upto the High Court and this Court by order dated 1st July, 1998 and also read over para-2 & 3 from the said judgment to contend that plea or request made by the workman for grant of relief under Probation of Offenders Act, has also been rejected by this Court. Thereafter, he also referred to page-12 where the order of termination has been passed by the petitioner corporation after considering reply and seriousness of offence by the competent authority. He also referred to Regulation 81 at page.30 and also read over the award passed by the labour court. Therefore, his contention is that the finding given by the labour court that the action of the petitioner Corporation amounts to retrenchment, is illegal and contrary to law because once the Corporation having powers under Service Regulation then, it cannot be considered to be retrenchment and hence, the labour court has committed gross error in passing such award. Except the contentions referred to above, no other and further submissions made by the learned advocate Mr.Dagali while pleading the case on behalf of the petitioner Corporation.
5. Learned advocate Mr.Bipin Mehta for the respondent workman has contended that the labour court has rightly appreciated the provisions of Section 2[oo] of the I.D.Act, 1947. He also submitted that said termination is not by way of disciplinary action taken by the Corporation. That said termination does not fall within any exception of Section 2[oo] of the I.D.Act, 1947 and therefore, termination of any employee whatsoever for any reason in any case can be said to be retrenchment and it can be said to be retrenchment and therefore, provisions of Section 25-F is required to be followed by the Corporation, which in the instant case, undisputedly not followed and therefore, termination becomes ab initio void. He also submitted that the labour court has rightly considered case under Section 2[oo] of the I.D.Act, 1947 and it amounts to retrenchment as per the definition given under the Statutory provisions. He also submitted that against the arguments put forward on behalf of the petitioner Corporation, learned advocate Mr.Dagali has not pointed out any other decision or legal submission and therefore, learned advocate Mr.Mehta submitted that the order passed by the labour court is perfectly justified looking to the facts and circumstances of the case and therefore, no interference of this Court is warranted and the order passed by the labour court deserves to be confirmed and can be upheld by this Court.
6. Learned advocate Mr.Mehta has also emphasised on two aspects of the matter and contended that past record of the workman is not bad and the workman completed services for more than 15 years as Driver. No serious accident in past committed by the workman. He also submitted the second aspect that in respect of the very same accident and one incident, wherein two different inquiry has been initiated against the delinquent workman. One inquiry by the Department and another inquiry by the Criminal Court. In departmental inquiry in respect of the same accident, the competent authority felt that it was not serious misconduct and as such, there was no gross negligence on the part of the workman as Driver and therefore, minor punishment has been imposed by awarding punishment of stoppage of one increment without cumulative effect and that amounts to nothing but it can be said to be mere fine imposed by the departmental authority. It is therefore, contended that once the department has imposed minor punishment in respect of the very incident then, why the department has turned round on finding the order of conviction against the workman and terminated services of the workman. Learned advcoate Mr.Mehta has also submitted that Service Regulation 81 is not mandatory provision but it confers discretionary powers to the competent authority or the appointing authority to terminate or not to terminate services of the delinquent employee if he is convicted by the competent court or he declared insolvent by the competent court. Therefore, it is not mandatory provisions but it is the discretionary powers with the employer and in the instant case, such discretionary power has not been properly and reasonably exercised by the petitioner Corporation but that power has been exercised in arbitrary manner and therefore, interference of this Court is not called for to interfere with the award passed by the labour court which is just and proper while exercising the powers under Section 11-A of the I.D.Act, 1947 which has been rightly exercised while granting relief of reinstatement without backwages of the interim period. Therefore, he submitted that there is no error committed by the labour court which requires any interference of this Court while exercising the jurisdiction under Article 227 of the Constitution of India.
7. I have considered submissions made by the learned advocates for the parties. This Court has also gone through the entire award passed by the labour court. This Court has also gone through the relevant Service Regulation 81 which is referred to as under :
"81. Notwithstanding the provisions of Regulation 61, the services of an employee. If he has been convicted in a criminal Court or has been declared insolvent by a competent Court, shall be liable to be terminated without notice by the Appointing Authority."
8. Thus, service regulation 81 confers discretionary powers because the language used in the service regulation. The language suggests that "service shall be liable to be terminated" and not "shall be terminated". Therefore, the word "liable" gives and confers discretionary powers on the corporation to terminate or not to terminate services of the employee. Therefore, this can not be said to be mandatory provisions that in case of conviction, there is no option with the Corporation except to terminate services of the delinquent employee. According to my opinion, the language used in Service Regulation confers discretionary powers to the Corporation in case of conviction of any delinquent employee, then the Corporation may terminate or may not terminate services of the convicted employee. But in the instant case, that discretion has not been properly exercised by the Corporation inasmuch as in respect of the same incident wherein the workman has been dealt with in departmental inquiry by the Corporation and punishment has been imposed of stoppage of one increment without cumulative effect. That in respect of the same incident which resulted into conviction, which is confirmed upto this Court and that has resulted into termination finally. This Court fails to understand as to why such attitude by the State Authority while dealing with the delinquent workman. No satisfactory explanation has been given by the Corporation before the Labour Court that why these two different attitude and approach of the Corporation in respect of the delinquent workman who has charged for committing very accident. There is nothing on record that competent authority before terminating services, past record of the workman, has been considered or not. It has come on record that 15 years service has been put in by the workman as driver. Past record is also pointed out before this Court and it reflects that no such serious accident committed by the workman in tenure of his past service. Therefore, according to my opinion, a bare reading of the Service Regulation 81 itself and considering the punishment imposed by the department in respect of the same incident, the termination order which has been passed by the Corporation is absolutely arbitrary order passed by the Corporation which is State Authority. However, this Court is of the opinion that the provision of Service Regulation 81, is not mandatory in nature but it confers discretionary powers and therefore, the Corporation having discretionary powers before passing termination order on the basis of conviction. Therefore, such discretionary power must have to be exercised reasonable, just and fair manner. Looking to the facts of this case, the discretionary power has not been properly exercised by the Corporation and therefore, it can be said to be unjust and unreasonable exercise of powers by the Corporation. I fail to understand as to why different approach of the very authority once the workman dealt with departmentally in respect of the very same incident, imposed minor punishment like a fine and then, in case of conviction in respect of the same accident, why different approach has been taken by the very authority which adversely affect livelihood of the delinquent employee provided under Article 21 of the Constitution . Therefore, according to my opinion, apparently, the order of termination passed by the Corporation, is arbitrary and unjust and unreasonable exercise of the discretionary powers.
9. The labour court has considered Section 2[oo] of the Industrial Disputes Act, 1947 which is since relevant, is quoted as under :
"Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -
[a] voluntary retirement of the workman; or [b] retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or [bb] termination of the service of the workman as a result of the non renewal of its contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf concerned therein; or [c] termination of the service of a workman on the ground of continued ill health;"
10. The labour court has applied this Section 2[oo] of the I.D.Act, 1947 that termination amounts to retrenchment. It is not case of the learned advocate Mr.Dagali that case of the respondent workman is covered by any exception as provided under Section 2[oo] of the I.D.Act, 1947. It is not disciplinary action because it was already taken against the workman. It is not the case of the contractual appointment. It is also not case of the superannuation and not the case of continuing ill health and therefore, termination because of whatsoever reason, has been considered to be a retrenchment within bare reading of statutory provisions. Therefore, according to my opinion, the labour court has rightly held that such termination amounts to retrenchment within the meaning of Section 2[oo] of the I.D.Act, 1947. Learned advcoate Mr.Dagali is not able to satisfy this Court that how finding of the labour court is not proper and legal on the aspect of retrenchment. The second difference is clear that if any kind of termination for whatsoever reason, it amounts to retrenchment unless the case of the workman falls in exceptions. It is not case of the learned advocate Mr.Dagali that case of the workman fall within any exception of Section 2[oo] of the I.D.Act, 1947. Therefore, the labour court has rightly come to the conclusion that such termination amounts to retrenchment and obviously, when Section 25-F has not been followed by the petitioner corporation, and, even otherwise, it is not case of the petitioner Corporation of having followed the provisions of Section 25-F of the I.D.Act, 1947 makes it sufficiently clear that Section 25-F has not been followed and therefore, that renders termination ab initio void as per the view taken by the Apex Court in case of MOHANLAL V. THE MANAGEMENT OF M/S BHARAT ELECTRONICS LTD. reported in AIR 1981 SC 1253. Therefore, finding given by the labour court is perfectly justified and the same is in accordance with law and therefore, no interference is called for.
11. The definition of retrenchment given under Section 2[oo] of the I.D.Act, 1947 has been considered by the Apex Court in various decisions since 1952. The Apex Court had an occasion to consider earlier almost all the relevant judgments including the judgment of Constitution Bench in case of PANJAB LAND DEVELOPMENT AND RECLAMATION CORPORATION LIMITED, CHANDIGADH V. PRESIDING OFFICER, LABOUR COURT, CHANDIGADH AND OTHERS AND ALLIED OTHER MATERS reported in JT 1990 [2] SC 489. The Apex Court has examined the question by Larger Bench constituted with Hon'ble Five Judges that Section 2[oo] "retrenchment" definition and interpretation thereof, whether definition of retrenchment means termination by the employer of the service of a workman as surplus labour for any reason whatsoever or it means termination by the employer of the service of a workman for any reason whatsoever, otherwise than a punishment inflicted by way of disciplinary action, and those expressly excluded by the definition ? Whether the word "retrenchment" in the definition has to be understood in it narrow, natural and contextual meaning or in its wider literal meaning. The Apex Court held that "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the Section. In the said decision, the Apex Court has affirmed the decision of the Apex Court in case of MANAGEMENT OF KARNATAKA STATE ROAD TRANSPORT CORPORATION, BANGLORE v. M.BORAIA reported in 1984 [1] SCC 244, SANTOSH GUPTA V. STATE BANK OF INDIA reported in 1980 [3] SCR 884, decision in case of STATE BANK OF INDIA v. SUNDARMANI reported in 1976 [1] LLJ pg.478, and HINDUSTAN STEEL V. LABOUR COURT reported in 1977 LLJ pg.13 but some of the decisions have been overruled by the Larger Bench of the Apex Court. The relevant observations made by the Apex Court in para-80, 81 and 82 are referred below :
"80. The definitions is s. 2 of the Act are to be taken 'unless there is anything repugnant in the subject or context'. The contextual interpretation has not been ruled out. In R.B.I. v. Peerless General Finance, reported in [1987] 2 SCR 1, O. Chinnappa Reddy, J. said:
"Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression 'Prize Chit' in Srinivasa and we find no reason to depart from the Court's construction."
81. As we have mentioned, industrial and labour legislation involves social and labour policy. Often they are passed in conformity with the resolutions of the International Labour Organisation. In Duport Steels v. Sirs, [1980] 1 W.L.R. 142. the House of Lords observed that there was a difference between applying the law and making it, and that judges ought to avoid becoming involved in controversial social issues, since this might affect their reputation in impartiality. Lord Diplock said:
"A statute passed to remedy what is perceived by Parliament to be a defect in the existing law may in actual operation turn out to have injurious consequences that Parliament did not anticipate at the time the statute was passed; if it had, it would have made some provision in the Act in order to prevent them ..... But if this be the case it is for Parliament. not for the judiciary, to decide whether any changes should be made to the law as stated in the Acts..... "
82. Applying the above reasonings; principles and precedents, to the definition in s. 2(oo) of the Act, we hold that "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section."
12. I have considered the matter slightly in different angle that when the termination order passed by the employer while exercising the powers under Service Rules or Standing Orders or any other Disciplinary Rules, and against that termination, if industrial dispute is raised and even referred for adjudication, then the labour court can certainly, examine the question whether termination is proper or not, or, whether looking to the facts and circumstances of the case, termination is justified by the employer or not. There is no doubt that the labour court having powers under Section 11-A of the I.D.Act, 1947 to examine the legality and propriety of such termination order and in the case on hands, that has been rightly exercised by the labour court while exercising the powers under Section 11-A of the I.D.Act, 1947 because punishment imposed by the department in respect of the same incident while awarding punishment of stoppage of one increment without cumulative effect, past record is also not bad during 15 years' past service tenure and merely in respect of the same accident, upon conviction, why such harsh and unjustified action of termination of service, is taken by the Corporation and that aspect has not been justified by the petitioner Corporation before the labour court as to why two different approach in respect of one incident and one workman. This Court fails to understand such approach adopted by the petitioner Corporation while exercising the discretionary powers under Service Regulation 81.
13. It is also pertinent to note that the labour court while coming to the conclusion that said termination amounts to retrenchment under Section 2[oo] of the I.D.Act, 1947, has considered various following decisions of the Apex Court in cases referred as under :
[1] STATE BANK OF INDIA v. SUNDARMANI reported in 1976 [1] LLJ pg.478, [2] HINDUSTAN STEEL V. LABOUR COURT reported in 1977 LLJ pg.13 [3] D.K.YADV V. JMA INDUSTRIES LTD reported in 1993 [2] CLR 116 [4] DELHI AND GENERAL MILLS LTD. V. SHAMBHUNATH MUKHARJI reported in 1978 [1] SCR 591.
[5] ROBERT D'SOZA V. EXECUTIVE ENGINEER SOUTHEREN RAILWAY reported in 1982 SCC pg.645 [6] H.D.SINGH V. RESERVE BANK OF INDIA reported in 1985 [4] pg.201.
Therefore, considering the decisions of the Apex Court wherein the definition of "retrenchment" has been interpreted by the Apex Court and on various circumstances, if service of the workman terminated and that termination does not fall within exception category, as pointed out in the Section, then it amounts to retrenchment. Therefore, the labour court has followed the decisions of the Apex Court in respect of the subject matter and applied his mind on the issue and also given detailed reasons in support of its conclusion. Therefore, the finding given by the labour court that said termination amounts to retrenchment is legal and valid and not baseless and perverse.
14. At the cost of repetition, it is observed that looking to the facts of this case, the workman had completed more than 15 years service. Each year, he remained in continuous service as required under Section 25[B] of the I.D.Act. 1947. Therefore, termination on the basis of conviction which is not related to moral turpitude amounts to retrenchment and undisputedly, Section 25-F has not been followed by the petitioner Corporation, then, termination renders ab initio void. Any administrative action, if it is, unfair, unjust and arbitrary, against that, judicial review by this Court, is permissible. Apparently, when conviction is not relating to moral turpitude and it was case of accident and once the Department has imposed minor punishment against the workman, then it was not necessary to become harsh against the workman as if the Corporation having no option except to pass termination order. The word "liable" is giving option to the Corporation either to terminate service or not to terminate service. That option has not been properly applied and ultimately, it resulted into harsh, unjust, arbitrary and unreasonable action taken by the Corporation which has adversely affect the livelihood of the workman. Article 21 confers right to life being the fundamental right which includes livelihood. When on account of administrative action, if livelihood of the workman adversely affected by unjust, unreasonable and arbitrary order, then, the labour court certainly have power to examine it in proper prospective and to pass appropriate orders in accordance with law. No doubt, the workman had not proved unemployment by leading oral evidence but legally burden upon the employer to prove gainful employment of the workman during the interim period, that is not proved by the Corporation. Therefore, though the labour court has not granted any amount of backwages, even that can be considered to be just, proper and reasonable order passed by the labour court. If ultimate order of the labour court is just and reasonable, then, this Court may not even exercise the powers under Article 227 of the Constitution of India and to consider the technical aspect of the matter.
15. In view of above observations and considering the facts and circumstances of the case and finding given by the labour court, according to my opinion, the labour court has not committed any error while passing such award and moreover, the labour court has rightly not granted any backwages of the interim period but only granted relief of reinstatement which is just, proper and legal, does not warrant any interference of this Court. Moreover, this Court having very limited powers under Article 227 of the Constitution and this Court cannot act as an appellate authority and cannot reappreciate the evidence as has been appreciated by the labour court. Therefore, considering the totality of the facts and circumstances of the case, according to my opinion, there is no error committed by the labour court which found apparently on the face of record and therefore, according to my opinion, there is no substance in the present petition which calls for any interference and as a result, the petition deserves to be dismissed and it is dismissed accordingly. Interim relief, if any, stands vacated.
Rule is discharged with no order as to costs.